Architects:

An action for professional negligence against an architect will involve the application of the general laws of professional negligence, namely, the establishing of a duty of care and then the proof that the duty has been breached. Because this is an action against an industry professional, the standard of care owed to clients and the public will have to be ascertained in accordance with specific industry requirements and expectations.

Allegations of a breach of professional duty are serious, and as a result, the evidentiary burden is heavy for the party making the allegation. A claim against an individual architect may effectively need to be defended by the architect’s employer under the doctrine of vicarious liability. The architectural firm may then consider cross-claiming against the employee for a breach of the employment contract or some other duty. These matters would have to be considered on a case by case basis and will depend on the acts of each individual case.

Other issues that may arise could possibly involve the insurer, and whether or not that insurer will cover a party defending against a claim for professional negligence. Ordinarily, an insurer may allege that the claim itself may be proof that the insured party acted in such a manner that an exclusion under the police releases the insurer from paying on the policy. Of course, whether or not conduct can fall under an exclusion may only be conclusively determined after a decision is made in relation to the allegation of professional negligence. Be that as it may, this is potentially an additional complication in cases where an architect who is insured against claims is being prosecuted for professional negligence.

It is not inconceivable that in actions for professionals in the architectural industry, expert evidence may need to be adduced to prove that some architect’s action or behaviour has or has not met the relevant professional threshold of acceptable conduct. Whether or not the threshold has been met will require a detailed investigation of the relevant industry standards, and these are often set by the professional body which oversees the architectural profession, namely, the Architects Registration Board:

(a)   “The NSW Architects Registration Board administers the Architects Act 2003, the legislation regulating architects in NSW.  The Board's key role is to protect consumers of architectural services by ensuring that architects provide services to the public in a professional and competent manner, disciplining architects who have acted unprofessionally or incompetently, accrediting architectural qualifications for the purpose of registration,  informing the public about the qualifications and competence of individuals or organisations holding themselves out as architects, and promoting a better understanding of architectural issues in the community.” [1]

The Board has established the Architects Code of Professional Conduct which outlines the professional standard with which architects are expected to comply. This is the primary instrument under which any claims of professional negligence may be assessed. The Board states that:

“The Code articulates guidelines for acceptable standards of professional practice for architects. It enables clients to understand the standards expected of architects and the level of accountability expected of them in the provision of architectural services. Importantly, the Code encourages a shared understanding between architects and clients of the nature, extent and cost of services and the obligations of each party.” [2]

The objectives of the Code are outlined in Article 3, which states that the purpose of the Code is:

(a)     To define for the community, architects and clients the reasonable standards of conduct expected from architects in their professional practice;

(b)     To facilitate the establishment of professional relationships between architects and their clients based on reasonable expectations concerning professional standards and the cost of architectural services; and

(c)      To promote community confidence in the architectural profession.

Various provisions that relate to these objectives are outlined in further details in the articles that follow article 3. These include “general practice standards” (Part 2) “standards concerning dealings with clients” (Part 3) “standards concerning insurance coverage” (Part 4) “standards concerning professional continuing development” (Part 5) “standards concerning dispute resolution” (Part 6) “standards concerning the public” (Part 7) and “standards concerning professional relationship with other architects” (Part 8). [3]

Where these provisions can be vague or where they seem to be too abstract, common law principles relating to professional negligence will become essential to determine how the matters raised in the Code are applied to a specific set of factual circumstances. The primary cases which will be useful will of course be cases involving architects, but other cases in related industries or fields may also assist where a particular issue has not yet been ventilated before the courts.

This complicated process of factual assessment and legal interpretation will need to first be undertaken before an opinion can be formed by a legal practitioner concerning the industry specific threshold for the relevant “duty of care”, and whether it has been reached or breached by the architect. Only then will it be possible to assess the strength of any claim of, or defence against an action for professional negligence against an architect.

If you need legal help with a claim in negligence against an architect, we invite you to contact our firm by telelphone on (02) 9233 4048 or email us at info@navado.com.au and make an appointment to see one of our solicitors.

[1] “About Us” New South Wales Government: Architects Registration Board (undated) <http://www.architects.nsw.gov.au> (accessed 15 October 2013).

[2] “The Architects Code of Professional Conduct” ibid.

[3] See for further details on each Part: Architects Regulation 2012 (NSW). The Regulation was introduced by the Architects Registration Board under the Architects Act 2003 (NSW) and is popularly known as the “The Architects Code of Professional Conduct”.

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