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Saturday, June 22, 2024

The architecture of risk and responsibility


It is sometimes said that architects produce their best work after the age of 50 – that’s how long it takes to master all the necessary skills. As the Roman architect and engineer Vitruvius put it, ‘commodity, firmness and delight’ provide the ultimate architectural synthesis.  In today’s more complicated age we perhaps need to add ‘risk and responsibility’ to the mix.


So what happens when there is a lack of firmness to support architecture??s delight? In short, the issues of risk and responsibility come to the fore. All parties quickly check their actions and if they have any possibility of liability, they will inform their insurers at which point the matter may be taken out of their hands.


However, it is often uncertainty over who has particular responsibility that causes a structural or material problem in the first place. 


Project contracts and warranties can run to hundreds of pages, but many lack a clear ‘architecture’ of responsibility for the building??s design and delivery.  For instance, who designs the rainwater system – the architect, the mechanical engineer, the civil engineer, a specialist, the sub-contractor, no one? All are possible answers, yet one party needs to know it is their ultimate responsibility.


Having brought in the insurers, a technical problem will now become a dispute where all parties will most likely deny or try to minimise their own involvement.


With straightforward matters, bringing in an independent third party can sometimes resolve problems quickly. More complex matters inevitably mean using lawyers to unpick the original contracts and warranties, and explain to the parties, possibly for the first time, their individual duties and responsibilities.


It is sometimes said that the New Engineering Contract (NEC) is a model of clarity and helps reduce the likelihood of disputes.  Yet even the NEC is only as clear as the design team’s specifications and drawings, which are used as a guide to who does what.


Most design and construction professionals are highly skilled and competent operators.  Problems usually occur where two or more components meet and it is these areas that require absolute clarity.


Both designers and lawyers need to focus more attention on the architecture of risk and responsibility.  Placing responsibilities clearly would mean that designers and constructors knew what they were supposed to be doing, reducing the risk of aspects of the design falling into the gaps.  


At least one major professional indemnity insurer now requires designers to prepare a responsibility matrix at the outset of each project and for this to be shared with all the other parties.  Used as standard, a matrix of this sort would surely reduce the likelihood of disputes ?? to the delight of all.


By John Rich, co-founder and partner of Stubbs Rich


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