In this Foundations update, our Construction team looks at the issue of inspection and supervision duties over the course of a project. For members of the professional team, including architects and project managers, these duties present potential risks that have been magnified in recent years.
In 2021 the Grenfell tragedy is behind us, but it still weighs heavily on a construction industry which is also enduring the most disruptive period in recent memory. Grenfell exposed the potential consequences where an inspection/supervision ‘framework’ fails, and the project team places too much reliance on building control approval. Against this backdrop, it is more important than ever for professionals to understand exactly what the extent of their inspection/supervision duties are and how vital it is that those duties are not approached as a box-ticking exercise but are planned, carried out and recorded diligently.
The latter point may be particularly important if substantial defects are eventually found – a point when supervising/inspecting architects and project managers (who will be well aware of this) are frequently the first to receive blame on the grounds of “this should have been spotted at x point”. Sometimes that allegation is going to have some weight behind it, but a professional’s position is going to be stronger if it can point to very detailed records of inspections, detailing dates, times and precisely what was happening on site at or around date of inspection. If any potential or actual defects are identified – record the fact and record that the contractor was informed and follow up on this until rectification or deduction.
If in any doubt about how to carry out these duties – or if the underlying appointment terms are unclear – the Technology and Construction Court has been helpful in providing some guiding principles when it comes to inspection of the works in McGlinn v Waltham Contractors Ltd :
1) The duty is only to make periodic inspection – it is not guaranteed that all defective work will be revealed or prevented. A professional can exercise the required level of care and for there to still be defects – expected otherwise would be an unreasonable burden.
2) The frequency and duration of inspection has to be tailored to the nature of the works. It is not enough for the architect to have inspected only at the time of monthly site meetings because such times were not necessarily suitable and were telegraphed to the contractor in advance. See also (4) below in respect of when the importance of the works might suggest a more frequent inspection routine.
3) Depending on the importance of the particular element or stage of the works, the inspecting professional can instruct the contractor not to cover up the elements of the works (although this is covered by the tailored nature of inspections).
4) That defective work has been carried out and covered up between inspections will not automatically amount to a defence to an alleged failure to carry out proper inspections. The background circumstances will also be important – if there were warning signs about the standard of works early, could the architect/project manager have inspected more often? Does the importance of that work to the project as a whole also warrant more inspections?
5) If an element of work is particularly important because it is going to be repeated throughout a building or a substantial part of a building, the inspecting professional should see it at an early stage.
6) Reasonable examination does not require the inspecting professional to go into every matter in detail (which is useful to read in conjunction with (1) above).
7) A claim for bad workmanship against a contractor does not always mean a claim against the inspecting professional. As above, the architect/project manager’s inspections do not guarantee that they will reveal or prevent all defective work.
If you have any questions about inspection duties, the potential risks and/or responding to allegations of inspection failures, our Construction team can assist.