Stephen West & another v Ian Finlay & Associates [16.04.13]
Technology and Construction Court extends damages for distress and inconvenience in claim against architect.
The Defendant provided architectural services for the development of the Claimants’ home. Shortly after completion, significant damp was discovered in the property. Further defects were discovered, leading to allegations that the Defendant negligently failed to specify adequate damp-proofing measures, inspect the M&E installations and oversee the laying of the concrete ground slabs.
Initially, the Defendant argued that the defects were not evidence of poor design but poor workmanship by the main contractor, which became insolvent. The Claimants sought from the Defendant the costs of remedying the defects, as well as various consequential losses.
In a lengthy judgment, the High Court considered numerous issues, including the extent of the architect’s duties in respect of the original specification of works, his duty to supervise/inspect ongoing work, and the appropriate measure of damages for a claim of this nature.
It began by reiterating the proper approach to be adopted in a contractual claim for negligence against a construction professional: first, the claimant has to establish what would have happened if the professional had exercised proper care and skill. If the claimant then establishes that they would have proceeded in accordance with the professional’s proper design, the measure of damages would be the cost of remedying the defects minus credit for any higher costs that would have been payable for a proper design at the outset.
The court then went on to hold that the Defendant failed almost entirely to consider damp-proofing measures. Accordingly, liability was established. As for the laying of the concrete slab, it commented that "one would not ordinarily expect an architect to be carrying a ruler and measuring every dimension".
There was no liability, as the damage was considered not to be readily apparent.
However, in respect of the M&E works, the court noted that the architect had been made aware of the contractor’s failure to follow the specification and found that his duty to inspect the works increased on account of his knowledge of the defects. As a result, the Claimant was entitled to recover damages in respect of the defective M&E works.
The court was distinctly unimpressed with the Defendant’s numerous failings and attempts to blame other parties. Of note in this decision was an award of compensation for the distress and inconvenience suffered by the Claimants during the course of the discovery of the defects and the remedial works.
Although this is not the first time such an award has been made (see Axa Insurance UK Plc v Cunningham Lindsey UK  EWCA 3023), the guideline figures previously laid out in respect of this head of loss were increased. Whilst the total award of damages for distress and inconvenience explicitly excluded any amount in respect of the "stress and vexation of litigation", and was clearly fact specific, the sum awarded (£14,000, including unusually £2,000 for the Claimants’ son who was a baby at the time) was substantial, and reflects a trend towards increasing the availability, and amounts offered, in respect of this head of loss.
Another point of interest in the case was the Defendant’s attempt to limit his liability by reference to a net contribution clause in the contract. The Defendant tried to argue that the main contractor had been partly responsible and the net contribution clause should limit his liability to an amount that reflected his culpability only. The court decided however that there was ambiguity in the wording, which should be construed in favour of the consumer, and the Claimants were able therefore to ensure that any liability of the main contractor would not reduce the exposure of the Defendant. Another example of the need for clarity in drafting.