Cornes and Lupton's Design Liability in the Construction Industry

Sarah Lupton has degrees in architecture and law, and has over 30 years' experience as a partner in the London-based architects' practice of Lupton Stellakis. She combines practice with an academic post at the Welsh School of Architecture, as Professor and director of the MA in Professional Studies. She lectures widely on subjects related to construction law, and is an arbitrator, adjudicator and expert witness. Sarah is a member of many industry and professional committees, and is chair of the CIC Liability Panel, and past chair of the RIBA Presidents Advisory Committee on Dispute Resolution.  As well as this publication, she is the author of many books, including a series on standard form construction contracts.

• Acknowledgements viiPreface ix1 The Industry Context 11.1 What is design? 11.2 Procurement routes 31.3 The construction professions: who are the designers? 102 Liability under Contract 192.1 Formation of a contract 202.2 Terms of the contract 262.3 Exemption clauses 322.4 Privity of contract 342.5 Assignment 353 Liability under Tort: Part 1 373.1 Definition of a tort 383.2 Liability and parties in tort 383.3 Vicarious liability 383.4 Negligence 403.5 Historical perspective 433.6 Anns v Merton London Borough Council (1978) 453.7 Junior Books (1983) 473.8 1985–1988: the retreat 483.9 D & F Estates Ltd v Church Commissioners for England (1988) 503.10 Murphy v Brentwood District Council (1990) 523.11 Tests for establishing a duty of care in respect of economic loss 543.12 Contract and tort concurrently? 553.13 Summary of the position in 1994 584 Liability under Tort: Part 2 (Post-Murphy) 594.1 Liability for physical injury and damage to other property 594.2 The ‘complex structure’ theory after Murphy 604.3 What if a defect is patent? 644.4 Liability for economic loss 654.5 Application of the tests following Henderson v Merrett 674.6 Contractors’ liability for pure economic loss 694.7 Consultants’ liability for pure economic loss 774.8 Summary of the position in 2013 795 Liability under Statute 815.1 Defective Premises Act 1972 825.2 Building Act 1984 885.3 Health and safety 895.4 Copyright 916 Liability for Professional Negligence 976.1 Reasonable skill and care 976.2 Application of the test to designers 996.3 Examples of failure to take care 1006.4 Special skills 1046.5 ‘State of the art’ defence 1057 ‘Fitness for Purpose’ Liability 1077.1 Contractors’ obligations 1077.2 Reliance and partial reliance 1157.3 Consultants and strict liability 1207.4 Contractor’s duty to warn 1248 Duties in Detail 1338.1 General duties of a designer 1338.2 Appraisal and site investigation 1358.3 Budget issues 1448.4 Design development 1478.5 Commenting on/approving others’ designs 1538.6 Inspection and certifi cation 1578.7 Duty to review the design 1729 Delegation of Design Duties 1839.1 General issues 1839.2 Option 1: Declining the commission 1849.3 Option 2: Employer engages a specialist consultant direct 1849.4 Option 3: Designer engages specialist designer direct 1879.5 Option 4: Designer arranges for a contractor or sub-contractor to undertake the work 1889.6 Option 5: Designer relies on outside sources 1949.7 Is there a difference between delegation and reliance? 1959.8 Summary of options 19610 Liability to Third Parties: Procurement Issues 19910.1 Relationship between contract and tort 19910.2 Liability in particular situations 20410.3 Warranties 21510.4 Collaborative working 22510.5 BIM 22710.6 Insurance solutions 23311 Damages and Contribution 23511.1 General principles 23511.2 Damages and designers 24211.3 Contributory negligence and contribution 24911.4 Damages recoverable on assignment 25412 Limitation 25912.1 Statutory periods 26012.2 Limitation and contract 26412.3 Limitation and tort 26713 Measures for Limiting Liability 27713.1 Using fi nancial caps 27913.2 Limiting liability for loss of profits and consequential losses 28213.3 Net contribution clauses 28213.4 Agreeing shorter periods for limitation of liability 28514 Standard Forms of Contract for Design-Build 28714.1 Joint Contracts Tribunal (JCT) forms 28714.2 GC/Works/1 forms 30214.3 NEC3 Engineering and Construction Contract (ECC) 30714.4 Project Partnering Contract (PPC2000) 30914.5 FIDIC forms 31115 Standard Forms of Appointment 31715.1 RIBA 31715.2 ACA 32015.3 ACE 32115.4 ICE 32215.5 RICS 32315.6 CIC 32515.7 Novation and Switch Agreements 32716 Professional Indemnity Insurance 32916.1 General 32916.2 Principles of professional indemnity insurance 33016.3 The professional indemnity policy (consultants) 34116.4 Avoiding disputes with insurers 34516.5 Professional indemnity insurance for design and build contracts 34716.6 Professional indemnity – changing insurers 35216.7 Other types of insurance 35317 Design Liability in the EU 35717.1 Belgium 35817.2 France 36117.3 Germany 36417.4 Italy 36817.5 The Netherlands 37118 Design Liability in the Rest of the World 37518.1 Australia 37518.2 China 37918.3 The Middle East 38318.4 Russia 38818.5 USA 391Bibliography 397Cases and Legislation 401Index 423