ACLN - Issue #76
Architects and Engineers
A Look at Duty of Care, Causation and Contributory
Negligence
Bailey v Redebi Pty Ltd & Or, NSWSC, Santow J
Stewart Muirhead
Carter Newell
Brisbane
T HE RECENT DECISION OF BAILEY
v Redebi Pty Ltd & Ors (1999)
NSWSC 918 considered a number of
issues commonly found in negligence cases
against building professionals who work
together on a project. What is the extent of
the architect's duty of care? Where does that
responsibility end and the structural engi-
neer's duty begin?
In May 1989, Mr Bailey retained an ar-
chitect to prepare plans for a development
which, for financial reasons was to be built
in two stages. The architect engaged a
builder and structural engineer and provided
them with plans for the fIrst stage of the
project. Building began in 1990 and 20
weeks later, the fIrst stage was completed.
Unbeknown to Mr Bailey, a western wall
had been constructed as an internal wall
(awaiting the second stage), whereas it
should have been constructed as an external
wall.
By 1992 a dispute arose between Mr
Bailey and the builder. Mr Bailey obtained a
building consultancy report (BCS report)
which raised concerns about the wall and
recommended that a structural engineer ex-
amine it. A structural engineer prepared
three reports between July 1992 and
December 1992, stating that the stability of
the western wall was inadequate. Recom-
mendations were put forward to resolve the
problem. The dispute was later settled at
mediation.
On November 1994, following high
winds the western wall collapsed. Mr
Bailey sued the architect and structural
engineer.
THE ARCHITECT VERSUS
ENGINEER - WHO IS
RESPONSIBLE?
~ Who is liable to Mr Bailey in
negligence by failing to design a structurally
sound building - the architect, engineer, or
both?
~ Did the architect undertake
engineering design services, or otherwise
fail in its supervisory role so that both
architect and engineer should share
responsibility?
The engineer conceded that it was negli-
gent; therefore, the court's attention was
concerned as to whether the architect should
bear, or share, any liability. Generally, an
architect does not undertake a duty of care
to a client to include an assumed responsi-
bility for specialized aspects of engineering
design, in the absence of an express under-
taking. The onus of establishing an extended
duty of care to embrace additional responsi-
bility is placed on Mr Bailey.
The architect argued that engineering
matters were outside the scope of their duty
to Mr Bailey. The court found that the archi-
tects held themselves out to be design and
building consultants, and they also failed to
ensure that the engineer understood their
instructions regarding the western wall.
Here, the architect's duty was capable of
arising incrementally by embracing the ad-
ditional responsibilities such as supervising
the engineering design team. In this regard,
the court adopted the High Court's treat-
ment of the scope of duty of care in Perre v
Apand Pty Ltd (1999) HCA 36.
THE ARCHITECT'S DEFENCE
~ Did Mr Bailey fail to act reasonably to
protect his interests by omitting to rectify
the defects which were detected in the BCS
reports?
~ If so, does such a failure give rise to a
defence based on novus actus interveniens,
interrupting causation or rendering the
damage not a foreseeable consequence of
any negligence?
~ Is there contributory negligence,
aggravation of damage or a failure to
mitigate a loss?
ACLN - Issue # 76
CAUSATION - HOW DID THE
COLLAPSE COME ABOUT?
The collapse came about by the archi-
tect's failure to supervise and properly com-
municate with the engineer the need to have
the western wall properly stabilized. In de-
termining causation, the court adopted the
formula in Bennett v Minister for
Community Welfare (1992) 172 CLR 408,
causation being a question of fact which is
resolved as a matter of common sense. This
is a two stage process:
~ Firstly, the court will look at the
factors and external factors relevant to the
architect which lead to the events giving rise
to the damage claimed. This involves
identifying all material factors contributing
to the loss and then determining which, if
any, was sufficient in themselves to cause
the loss of the but for kind.
~ Secondly, which factors should be
treated as making a difference. Here, the
court will assess the architect's conduct in
its factual context with reference to the
following considerations:
• the scope of the duty of care;
• the foreseeability of damage, i.e. the
likelihood of the wall falling down;
• in cases of negligence by omission,
whether performance of the duty
would have averted the risk;
• the remoteness of damage.
The architect said that Mr Bailey's failure
to carry out the recommendations in the BCS
report was so unreasonable as to displace any
causative effect over his acts or omissions.
The court determined that it was not pos-
sible to establish a novus actus interveniens
in this case unless the breach is shown to
have had no causative effect.
The reason is that the injury would have
occurred (or the risk of it) even had the duty
been performed properly. The architect
couldn't prove that the BCS report recom-
mendations would have worked.
We compare this with the rationale in
Chapell v Hart, where the minority would
have concluded that a surgeon's failure to
warn did not materially contribute to the
plaintiff s injury.
CONTRIBUTORY NEGLIGENCE
Contributory negligence is a plaintiffs
failure to meet the standard of care to which
it is required to conform for its own protec-
tion and which is a legally contributing
cause, together with the defendant's default,
in bringing about its injuries. The type of
duty that a defendant owes to the plaintiff
will affect the degree to which the plaintiff
may be said to be contributory negligent.
The nature of the defendant's duty may pre-
clude liability altogether, or reduce it.
The architect contended that Mr Bailey
failed to take proper care for his own prop-
erty's protection when he failed to carry out
the remedial works recommended by the
BCS report. The BCS report highlighted the
inadequacy of the western wall, and the ar-
chitect contended that a layman would have
understood the need to take remedial action.
Mr Bailey responded by arguing that firstly,
the advice in the report was not explicit, the
BCS report never stating that the building
would have collapsed, only secondly, had
the BCS recommendations been carried out,
the building still would have collapsed.
The court analysed the expert evidence
in determining whether Mr Bailey had acted
reasonably. The court found that Mr Bailey
was unable to proceed with the second stage
of the project because he did not have the
funds to do so and therefore to assume Mr
Bailey could have rectified the western wall
was unwarranted.
The architect failed to establish that had
Mr Bailey adopted the recommendations in
the BCS report, the building would still be
standing today. Further, the court found that
the architect could not substantiate that it
would have been reasonable for Mr Bailey
to carry out the proposed works as a result
of the cost. In determining the reasonable-
ness of Mr Bailey's action, the court fol-
lowed McCauley v London Transport Ex-
ecutive. The advice and the prospects of
success of a proposed operation or treatment
must be clearly put to the plaintiff so that as
a reasonable man he would have been able
to appreciate the position.
SHOULD MR BAILEY HAVE
MITIGATED HIS LOSS?
The plaintiff s conduct was similarly
assessed for unreasonableness by reference
of whether the plaintiffs omission to act,
judged by reference to the defendant's duty
ACLN - Issue #76

of care and its extent, made the plaintiff the

effective cause of his or her own injuries.
The issue of Mr Bailey's reasonableness
turned on whether he failed after the loss to
take some precaution or step which was
reasonable to take in the light of the archi-
tect's wrong doing. This could not be made
out as the failures relied upon by the archi-
tect preceded that loss. The loss only oc-
curred when the wall collapsed.

The court held that the damage that oc-

curred could not be excluded under any
principles of remoteness or reasonable fore-
seeability. Mr Bailey had not aggravated the
damage, nor did he fail to act reasonably in
their mitigation. Both architect and engineer
were held liable to pay Mr Bailey damages
without any reduction in respect of con-
tributory negligence. [t]

Stewart Muirhead's article first appeared in

Carter Newell's Construction Notes bulletin
(September 2000). It is reprinted here with
permission.