No Written Record

All three claims stories in this episode deal, in one way or another, with the consequences of an architect failing to maintain written records.

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All three stories in this episode deal, in one way or another, with the consequences of an architect failing to maintain written records.

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In this Claim Story, an Architect fails to keep a written record of his client’s instructions, and unwisely equates residential standards with institutional requirements, putting himself firmly in the hot seat.

Keep listening to find out why we call this story, “A Home is not a House.”

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The Architect Martin Pecunius was asked to design a new facility for Golden Dale Home for the Aged, based on instructions given to him by the Board of Directors. He was told that, since this is Canada, and not “the sunny south,” air conditioning was unnecessary, and there were no funds available to provide it. The Architect did not dispute this instruction and designed accordingly. A while later, the Board reversed its decision, deciding that air conditioning was, in fact, necessary, and money was found to pay for it.

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The ventilating and cooling system that was subsequently provided was grossly inadequate.

The Board claimed that the system was a “disaster” that had resulted in residents actually passing out due to high temperatures and lack of air. When the original consultants failed to devise remedies, third party consultants were engaged. These consultants found gross inefficiency in the air handling, including an absence of thermal zoning – which was an absolute requirement for an institutional building.

The Board of Directors decided to sue the Architect, the General Contractor,  and the Subcontractor. The Mechanical Engineer was a third-party defendant.

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In his defence, the Architect stated that the Home had been designed to budget-conscious residential – not institutional – standards. He had reached an agreement with the Board Chair that the air conditioning would be a low-cost, “minimum job” – just enough “to take the temperature down a little on the hottest days.” On the Architect’s instructions, the Mechanical Engineer had simply added an air conditioning unit to the domestic-style heating installation, which was a forced hot-air system, with tubular ducts.

The Architect maintained that he had relied completely on his Engineer. But in any case, the system was never intended to meet the use and occupancy levels that the building now had. Not only had the Board underestimated the number of residents, it had also failed to consider the volume of personal effects that the ose residents would pile onto the air registers in their units.

The Engineer stated that his minimal contract had called for three site visits during the construction, which meant that he did not observe workmanship, such as ductwork that had been covered over. He had followed the Architect’s instructions, doing the same as he would for any large house in any suburb. Most homes, even large ones, he said, have only one zone, and are cooled through the hot air system, just like this building.

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 In the settlement, the Architect could produce no written evidence – of his design brief, or the instructions to design to residential minimal standards, or the decision to provide a minimal cooling system. The Owners couldn’t recall giving any such instructions – even denying that such standards were ever contemplated. The Engineer was a sub-consultant of the Architect, and had acted entirely under his direction.

The architect’s defence, was far too weak to justify a costly, protracteddrawn out legal proceeding in court. The matter was therefore settled by Pro-Demnity, without the participation of: the Contractor, who proved to be insolvent; the Subcontractor, who could not be found by the bailiff; or the Engineer, who was uninsured and uncooperative. The Architect’s legal representation and expenses were covered by the Insurer in accordance with his professional liability policy.

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An analysis of this case uncovers several lapses that should have been avoided – and, inevitably, there are valuable lessons to be learned.

First, a very Old Lesson: Get it in writing. Everything. It’s as simple as that. If the Architect had put the client’s instructions in writing, in the first place, and had the client sign off on them, a lot of grief could have been avoided.

 Lesson 2: If consultants are hired by your client – and not by you – you may avoid being involved in legal actions against them. In this case, if the Client had contracted separately with the Engineer, the Architect and Pro-Demnity would, most likely, never have been involved. Failing that, the Architect should at least have made sure that the Engineer was adequately insured.

 Lesson 3: Don’t allow your sympathy for a client’s self-declared poverty to lead you into making poor decisions. The Architect’s laudable desire to provide this worthy charity with a minimal cost building and stripped-down consulting services led him astray. And the client showed no sympathy toward him.

 Lesson 4: Clients have a right to rely on an Architect’s professional knowledge. When clients make decisions based on their own sparse knowledge, Architects may have an obligation to step in ... and protect them from themselves.

Even if it were true – as we believe it was – that the Client had given verbal instructions to the Architect, as he stated, he may still not have been exonerated. As a professional, he had a duty to guard them from their own folly, and to Insist upon an adequate budget for the appropriate level of engineering input. The Client group, after all, consisted of social workers and volunteers who were not knowledgeable about such things, and would have benefited from the Architect’s professional guidance. It should have been obvious from the outset that the system they allegedly requested could not possibly have provided acceptable comfort levels.

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As suggested at the beginning, you may very easily find yourself in circumstances like these. Remember these four lessons and, with care and good fortune, you won’t also find yourself in the hot seat. 

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This Story describes the case of an Architect who ventures out of his professional depth and finds himself in deep, dangerous, and very dirty water. It’s the site levels and not the architecture that cause the problems, but once again the Architect’s defence is seriously hampered by the lack of written records.

For reasons that will soon become apparent, this story is called … “Field Level”

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Norman and Marie Hill had purchased a dramatic hillside lot on which to build their dream home. They hired Architect Lucas Bering to design this cozy retreat, and subsequently contracted then the Flood Brothers, General Contractors, to construct it.

The site, being far from municipal services, required a septic field. But because the terrain fell steeply from back to front, an obvious problem presented itself: Where could the septic field be placed? 

As a solution, the Architect located the field beside the house, and surrounded it with attractive landscaping berms. But unfortunately, the berms and the slightly elevated level of the septic field prevented natural drainage, with the result that the house flooded frequently.

 The Owners were suing the Architect and the Contractor. The Architect and the Contractor were suing each other.

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The Pleas from the Plaintiffs were blunt and concise: “We refuse to pay the balance of the money owed to the Contractor, as well as the holdback, until the problem is solved. We hired an Architect to look after the construction of our residence, and we have suffered serious damages that speak for themselves as to liability. Our Architect failed in his duty.”

At trial, the Owners recounted harrowing experiences of working at midnight in mid-winter, digging trenches to redirect flood water.

 In his defence, the Architect stated that he had really only indicated the “general arrangement” for the septic field. It was up to the Contractor to locate it and verify the levels and dimensions – with the understanding that discrepancies would be brought to the Architect’s attention. He felt he had done as much as he could, by giving oral directions to the workers.

The Contractor claimed that he had recommended placing the house a foot higher, but the Architect had rejected the suggestion. This was confirmed in written evidence. He also claimed that the level of the septic field was determined by the local authority, which was also true and confirmed by evidence. As a final rebuke, he claimed that the Architect had interfered with the work and would not listen to reason.

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The judge found that both Defendants, the Architect and the Contractor, were “jointly and severally liable” – in other words, they were both responsible for the unhappy state of affairs. The Owners had every right to expect the Architect to ensure against major errors, but the Contractor also had a duty: to protect them against errors that were plain to see.

Since the Architect’s error was an insurable risk under his professional liability insurance policy, the costs and legal fees involved in defending him were covered by Pro-Demnity – as were the damages, since the Architect had been found jointly and severally liable with the Contractor.  

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As in any good story, there are Lessons to be Learned. An analysis of this case leaves us with three important pieces of wisdom.

 Lesson 1: When dealing with a difficult site, hire professional consultants to help with problems. This Architect should not have intervened, but should, instead, have insisted that a Landscape Architect or Surveyor be engaged to locate the septic system.

 Lesson 2: Always issue written instructions, have your client sign off, and keep the instructions as records. Memories of oral instructions are unreliable and of little value in a legal action. The Architect’s reliance on statements such as, “I told him to dig a swale right over there,” proved to be worthless.

 Lesson 3: There should be no half-measures when it comes to reviewing the work in progress. Forget the fine print. If you are on the scene of the error and don’t correct it, the error is yours.

The judge in this case did not buy the idea that “review” is somehow a lesser duty than “inspection.” Quoting from Hudson’s Tenth Edition, the construction law bible, he stated: “An Architect must properly supervise the works and inspect them with sufficient frequency to ensure that the materials and workmanship conform to contractual requirements.”

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As suggested at the beginning, you may very easily find yourself in circumstances similar to these. Remember these three lessons and take care. With a little good fortune, you won’t find yourself in deep, dangerous and dirty water.

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This Audio Claims Story is a textbook case of too many cooks spoiling the broth: Three Architects, an Assistant Architect, an Engineer and a Construction Manager – all supervising the work of a single stone-mason. Confusion and litigation ensue. Needless to say, written instructions would have saved a lot of grief. Keep listening, and maybe you can figure out … “Who’s in Charge?”

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As part of a larger historic renewal project, a Mason, Philip Bloch, was contracted to reconstruct some rubble-stonework. The Specifications described the types of mortar to be used in different locations, depending on the exposure and strength required. The work called for the removal of old mortar to a certain depth, and the grouting of any cavities.

After the work had been completed, a large part of it was rejected, due to the mason’s failure to follow the Specifications. The Mason redid the work under protest and subsequently sued the Owner and the Construction Manager.

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In this litigation drama, the Cast of Characters begins with:

The Plaintiff: Philip Bloch, Masonry Subcontractor; and 

The Defendants: Rubblestone Properties, the Owner, and the Construction Manager Derek Wynch. 

Drawn into the drama are the Engineer, and several Architects added as Defendants by amendment. They are: “The Design Architect,” who prepared the design and contract documents; “The Local Architect,” who was hired to review the work onsite; and “The Expert Architect,” whose job it was to provide advice on historical masonry. It was this Architect who was responsible for rejecting the mason’s work.

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In his plea, the Mason claimed that there was nothing wrong with the mortar he had used, and he had expert opinions from the National Research Council to prove it. Furthermore, his work had been inspected – absolutely ... to death – and the mortar had been specifically accepted by the Engineer and by both the Design Architect and the Local Architect, all of whom had many opportunities to correct any error at an early stage. As for the Expert Architect, the Mason had no contractual requirement to please him, so naturally, he believed that approval had been withdrawn improperly and unfairly.

The Construction Manager stated that he had relied on the professionals, who were present at various meetings and who had – except for the Expert Architect – accepted the work. Since the Expert Architect reported directly to the Design Architect, the Construction Manager was not even involved.

The Design Architect admitted that he had observed the “wrong” mortar being used and that the Expert Architect had mentioned the problem to him. But The Design Architect had not recognized the significance and had taken no immediate action. In any event, he said, the Assistant Architect and the Engineerhad issued only oral consent, and on this point, the Specifications were clear quote :“No substitutions or changes without the Design Architect’s written authorization.” Since the Mason had no written authorization, the Specifications should govern. He added dryly that the reason for requiring written instructions was to avoid problems such as this.

A second argument was also put forward: In redoing the work after rejection, it was discovered that the Mason had not removed old mortar to the specified depths, therefore, any problems with the new mortar were irrelevant. The original work was unacceptable.

The Local Architect thought the whole affair was a tempest in a teapot. All the mortar in question was going to be covered up anyway, and the Engineer had already accepted it. Besides, the Mason’s mortar was in common use in similar circumstances, so why make a fuss? Most other Architects would have accepted the work. He was aware that the old mortar had not been excavated to sufficient depth, but had tacitly approved it anyway, because the old mortar was extremely hard, so removal “to refusal” – that is, to a depth where it refused to budge – seemed more sensible. Why remove perfectly good mortar that had been there a hundred years?

As an added source of contention, the Local Architect had never been happy in his subservient role. When on the job, he acted as though he were the de facto Architect of the Works, and he was treated that way.

The Expert Architect had his own ideas about how things should be. The main objective was to ensure the strength of the wall and preserve its natural beauty by minimizing deterioration. He was the expert, and he was hired to advise specifically on the preservation of old masonry. However, his contract with the Design Architect afforded him three site visits only, and so he relied on the others to monitor the work.

The Engineer’s defence was simple and straightforward. The mortar was perfectly acceptable from an engineering point of view. He knew nothing of the preservationist’s theories and had not been consulted on them.

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Pro-Demnity represented all three Architects, so a delicate balance had to be struck. The Architects all felt that the Mason was at fault … but as a back-up, each was perfectly happy to blame the other two.

Pro-Demnity felt that a court would have much less sympathy for the Architects collectively, than for The Mason, who was a “simple tradesperson” and had believed what an Engineer and two Architects had told him. Besides, if the Architects were to insist on adhering to the fine print of the specification, with its requirement for written authorization, it would cast them in a bad light, since the Design Architect’s Assistant Architect did not deny authorizing the continuation of the work.

Furthermore, the claim that the work was discovered to be substandard in the first place did not ring true. The Local Architect had, after all, accepted the work – and he was the review architect. It was also a potential embarrassment that the Design Architect insisted that the Local Architect had no authority, except to report to him – and was not entitled to waive the specification.

The Construction Manager also had a duty of care, since he was present when all the decisions were made, and should have insisted on the specs being followed. He could not claim, as he tried to, that he was merely an innocent observer.

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In the end, the matter was settled with all three Defendants and their respective Insurers contributing. A much more expensive litigation was thereby avoided. 

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The Lessons to be Learned from this Claims Story are simple and, in hindsight, glaringly obvious.

 The First Lesson is a classic: “Too many cooks spoil the broth.” It’s good to be on a team, but every team needs a game plan and a captain. 

 Lesson 2: According to another old saying, “If you hire a chauffeur, let him (or her) drive.”

The Design Architect wanted to be “in charge,” with the Local Architect having only limited authority on the site. But this arrangement proved unworkable. The Expert Architect was also hamstrung by having only a minimal role. He should have been engaged, as he claimed, to “review the work onsite, when it started, and at reasonably frequent intervals afterwards.” Why, he wondered, was he employed if not to be listened to?

 Lesson 3: “Don’t rely on the fine print.” 

This may seem to contradict the well-established rule “Read the fine print.” But there has been an increasing tendency toward an excessive and unwarranted belief in the power of the written word. The fact is, you should always read the fine print – carefully – but you should not always expect that it will carry the day. If an Architect speaks directly to a Contractor and authorizes work, it is absurd to say later that his oral instructions should have been ignored. … which brings us to: 

 Lesson 4: When you issue instructions, write them down.

When oral instructions appear to contradict written instructions, such as those in the Specifications, how can a contractor or tradesperson know which to follow? Your oral instructions may be obeyed on the spot, but those same instructions may be forgotten or denied the moment a problem arises. It’s been often said that “Oral instructions are of little value in a legal action.” This is certainly true if they appear to contradict written instructions. 

Always remember that the law also recognizes a quality called “reasonableness.” 

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As suggested at the beginning, you may very easily find yourself in circumstances like these. Remember these four lessons and, with care, and with some good fortune, you won’t also find yourself in a situation where everyone – and no one – is in charge.

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Thanks for listening to this edition of Claims Stories. We hope it was instructive and entertaining … as well as cautionary. 

 Remember that every jurisdiction and ever case is different. Always refer to the laws, and regulations governing your local jurisdiction and consult a legal, architectural and insurance professional about the unique circumstances of your own case.

 • The Pro-Demnity Claims Stories were originally written by David Croft.

• The audio episodes are read by Liam Gadsby and produced by Revelateur Studio Inc, Toronto.

• The publisher and the executive producer of the written stories and audio episodes is Pro-Demnity Insurance Company, Toronto. For more information, including the full legal disclaimer, visit prodemnity.com.