Inspection Duties And Temporary Disconformities

Construction professionals’ inspection duties are notoriously difficult to define but often ground negligence actions.

The wordings of appointments vary significantly. For instance, the RIBA forms used to require the architect to supervise the works. This was diluted to inspections in the 1982 and 1992 forms. The 1999 form merely requires the architect to "make visits to the works in connection with [his] design" but this is still thought to include a duty to inspect the works.

Last Wednesday the Technology and Construction Court (in McGlinn v Waltham) gave its first guidance for some years on inspection duties. The guidance applies to architects under the above forms and inspecting consultants under similar contracts:

• The frequency and duration of inspections should be tailored to the works. It is too rigid for inspectors to carry out an inspection of the work either before or after regular (say, fortnightly) site meetings, and not otherwise.
  Some forms specify a maximum or minimum frequency of inspections. The ACE 2002 Lead Consultant form requires the engineer to visit site periodically to monitor the works but the number of visits is specified or agreed at the outset. The BPF Consultancy Agreement, on the other hand, requires the consultant to inspect at appropriate intervals but at least a minimum number of times per week as specified.

• Although contractors might be instructed not to cover up the relevant elements of the work until they have been inspected, such a situation would rarely arise because inspections should be tailored to avoid affecting progress.

• The fact that defective work is carried out and covered up between inspections does not automatically justify an allegation of failure to carry out proper inspections. If the element of the work was important because, say, it was going to be repeated throughout the works then the inspector should ensure that he sees that element early on so as to form a view as to the contractor’s ability to carry it out.

• The level of quality required of the works as well as the contractor’s performance are relevant to the inspector’s standard of care.

• Inspectors are not required to go into every matter in detail (especially in respect of work they have not designed) and it was almost inevitable that some defects would escape their notice. Inspectors do not guarantee that their inspections would reveal or prevent all defective work.

• It was generally sufficient for architects when inspecting to identify defects verbally with the contractor and the quantity surveyor, leaving it to the latter to value those defects, as appropriate, for the purposes of any interim valuation. However inspectors should record what they see and say during inspections to ensure clarity for all concerned and to evidence the performance of their duties.

• Inspectors should only condemn a defect; if the work is not yet finished, it could not fairly be said to be defective. There were certain defects which sensibly had to be remedied at the time, rather than at the end of the project. However, there were also other matters, particularly concerned with final finishes, which not only could be left until formal handover and snagging, but which it was in reality sensible and productive to leave until that stage. Thus there can be temporary disconformities in works that do not constitute a breach of contract by the contractor but count as work in progress.

Inspecting professionals, their employers and contractors would be well advised to note this latest guidance when negotiating appointments and when works are underway.

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

The original publication date for this article was 01/03/2007.