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Technical MANAGING DESIGN LIABILITY 16 www.thefis.org First and foremost, you must: • know what your contract says and understand the risks; • never be afraid to speak out if you become aware of any health and safety issues; • keep faultless records; • have adequate insurance cover, or limit your liability to what you do have cover for; and • use net contribution clauses and caps on liability clauses in all your contracts. The traditional approach to construction separates the process of design and construction. However, in recent times the lines of separation have become blurred. There is an increasing tendency for design liability to be passed to specialist contractors under the term of contracts and warranties, while the traditional designer (the architect) becomes less involved in the process of specialist design and more involved in co-ordination of design. Contractors should be wary of such liabilities so the terms of any contract or warranty that seek to impose design liability upon you should be analysed carefully. Design liability imposes greater duties upon you in law and severe consequences arise if either you accept responsibility greater than your design input or you are in breach of your design responsibilities. Youmust therefore consider the extent of your design responsibilities against the terms that you are asked to sign. How design responsibility is determined Contractors can undertake some design responsibility even though they are not involved in the production of plans, drawings or designs. Responsibilities under the contract to produce basic layout drawings, or the selection of particular materials or components for specific functions may amount to ‘design’, remembering that the law imposes duties on specialists to point out obvious defects in designs (although if their warnings are ignored; they are not then responsible for the consequences). In addition, specifications often say that the contractor is deemed to have included for ‘everything necessary to carry out and complete an installation in accordance with the contract’ and your price is deemed to include the items the designer overlooked and that you are ‘recommending’ or ‘selecting’ those items. Contractors may have responsibility to: • produce a full design; • develop designs produced by others; • produce basic working drawings; • select materials; • meet a performance specification; • check designs produced by others; and • undertake responsibility for designs produced by others. It may not be immediately apparent from the tender documents the extent to which the contractor is responsible for these areas so all documents, including the invitation to tender, the preliminaries, the specification and the contract conditions should be scrutinised. Co-ordinating design Overall responsibility for design co-ordination usually rests with the architect if there is one. However, design and build packages are becoming increasingly common and under this method of procurement there may be no architect or contract administrator so, the main contractor becomes the single point of responsibility for all matters, including co-ordination of design. If you are providing design for your portion of the works as a subcontractor on a design and build project, you are not generally responsible for the co-ordination of everyone’s designs. But, you should ensure that this responsibility is not placed on you without your knowledge. Before entering into a contract: • you must fully understand the risks associated with your role in the contract, understand your obligations and be aware of the consequences if you breach them; • consider whether you have sufficient and effective working processes in place to identify any health and safety risks on site; • ensure you have adequate and appropriate insurances in place to cover any risks that you cannot pass to anyone else or properly manage yourself; • in contracts you cannot exclude or limit liability for death or personal injury. You are working on projects as part of a teamwho are all responsible for the health and safety on site. If you have any concerns, report them. The role of the Construction (Design and Management) Regulations 2015 Principal Designer Principal designers are appointed to manage health and safety risks throughout a project and are responsible for the co-ordination of health and safety during the preconstruction phase, because design decisions made during the pre-construction phase have a significant influence in ensuring the project is delivered in a way that ensures the health and safety of everyone affected by the work. Principal designers must: • plan, manage, monitor and co-ordinate health and safety in the pre-construction phase taking into account information (such as an existing health and safety file) that might affect design work carried out both before and after the construction phase has started; • help and advise the employer in bringing together pre-construction information, and provide the information that designers and contractors need to carry out their duties; • work with any other designers on the project to eliminate foreseeable health and safety risks to anyone affected by the work and, where that isn’t possible, take steps to reduce or control those risks; • ensure that everyone involved in the pre-construction phase communicates Karyn Watt, Partner at Anderson Strathern and a Law Society accredited construction specialist, wrote an information sheet (that sits in the FIS Knowledge Hub at www.thefis.org/knowledge-hub/contractual-and-legal/ ) about design liability in the construction sector. Here we outline the most salient parts of that document but strongly recommend that you read it in full.