In the Vitsoe Ltd v Waugh Thistleton Architects Limited case , Vitsoe pursued a claim against their architect for negligence arising from services in the design and construction of its new headquarters. Vitsoe claimed the architect was at fault for the rotting and decay of the roof panels that became wet during sustained rainfall over the Christmas period of 2016, which led to water ingress damage at the property. Vitsoe considered the architect responsible for decisions regarding moisture control.
We examine below the court’s reasoning in finding that the architect did not fail in its duties, and was under no obligation to advise on the protection for the works during construction.
The claimant, Vitsoe, contracted with the architect, Waugh Thistleton Architects Limited, to provide architectural services in relation to the construction of its headquarters in Royal Leamington Spa. The construction works were procured by way of a construction management contract, with a construction manager and trade contractors for the timber frame and roofing.
| Construction management contracts enable the employer to enter separate contracts for the design, management and construction aspects of the project. The employer directly contracts with each trade contractor, and appoints a construction manager who has exclusive responsibility for the management and control of the site. This differs from a traditional JCT standard building contract, whereby the employer only contracts with a main contractor. This main contractor is then responsible for the entire construction process, including the appointment and management of subcontractors, and the coordination of the works. |
The property was constructed using a form of laminated veneer timber posts, and cross laminated timber (CLT) wall and roof panels. These panels became wet having been left unprotected during construction and a sustained period of rainfall occurring during Christmas 2016. This ultimately led to roof decay and water ingress post completion of the works.
Vitsoe became aware of this water damage in or around 2018. Remedial works were undertaken to remove and reinstate the roof covering, replace and repair the decayed CLT panels, disconnect and reconnect elements associated with the roof (including solar panels), and carry this work out under a temporary over-roof to prevent further water damage.
In assessing the scope of duty owed by the architect, the court specifically considered it necessary to consider the contracts of other parties retained by Vitsoe. Most notably, it was found that the duty to protect the trade works and unfixed materials during construction lay with the trade contractors and the construction manager. The construction manager had a specific duty to review designs and advise on their feasibility and suitability and both the construction manager and trade contractor had express obligations for ensuring adequate steps were taken for the protection of the works and unfixed materials on site. The architect’s role on the other hand was limited to providing design information, with detailed designs then having been completed by trade contractors, and coordinating the designs – the architect did not have a duty to protect the works.
The court then moved on to consider the alleged breaches of the architect, and whether the architect had failed to use reasonable skill and care by not:
After hearing expert evidence, the court was satisfied that there was no mandatory requirement to produce a moisture control plan, and even if one was necessary, such plan would be expected to be produced by the construction manager. Despite this, the court did find however that the architect’s specifications functioned as an appropriate plan. Had this been complied with, no water would have reached the timber. A temporary roof was not the only viable and effective way to protect the roof. Appropriate sequencing of works that provides for drying out would also be suitable.
The court took a similar approach when considering whether the architect had a duty to consider the timber frame contractor’s tender – in fact, it emerged that the architect had a very limited role in considering the tenders, and was not under an obligation to review them. Even if the architect had done so and identified there was no moisture protection, the tenders did provide for moisture control through sequencing which the court accepted as an alternative option to a temporary roof. A temporary roof was not mandatory.
Finally, the court found that the architect did not fail to take appropriate steps in response to the exposed CLT – the architect provided sensible and prudent advice to Vitsoe with regards to the moisture testing before and after Christmas, and raised concerns as to the CLT being exposed. The court considered that the architect should not be criticised for not informing Vitsoe that vapour control layer should not be installed in existing wet conditions when this was already a commonly known fact by all parties.
Taking all of the above into consideration, the architect was not found liable as alleged or at all for the water ingress damage to the property.
Whilst this case is very much decided on its facts, it's a useful case to remind us how the interplay of various contracts, particularly in a construction management context, can be relevant to interpreting the scope of duties owed by each party appointed. Had this not been a construction management project, and had the architect been instructed to carry out the full detailed design, the decision may well have been very different for Waugh Thistleton Architects Limited.
It's important to consider at the outset of a project how best to structure a project in the event there is a potential claim for defects further down the line. Whilst one would always hope for a defect free project, this is simply something that cannot be guaranteed. When setting up a project, considering the various claim routes is a crucial factor alongside additional security that may be sought by way of collateral warranties, bonds and guarantees.
For further information, please contact the construction team.
To read the full judgment, click here.
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