29 January, 2014 - 22:39 By News Desk

Don’t get your fingers burnt

Tim Richards, Partner, Hewitsons LLP

In September 2013 the new £200m ‘Walkie Talkie’ building in the City of London hit the headlines for the wrong reasons when the sun’s rays reflected off its concave facade onto a Jaguar motor car causing buckled panels and melted trim.

Apparently other vehicles suffered similar damage and one café in the focus of the glare managed to fry an egg outside its shop.

So what liability might a designer have for any damage caused?

Liability to the building owner

Where the building owner has appointed the designer or has a collateral warranty or the benefit of third party rights in the designer’s appointment, the designer’s liability will be determined by the contract’s express or implied terms.

This liability will be framed by reference to the duty to exercise the reasonable care and skill of an ordinary competent and skilled designer of the relevant discipline.

If the appointment did not expressly deal with this liability, and the designer was acting in the course of a business, s13 of the Supply of Goods and Services Act 1982 implies an equivalent term that the designer will carry out his services with reasonable care and skill.

If a building such as the Walkie Talkie exposes the building owner to claims from third parties but is otherwise sound, has there been a breach of contract?

There could be liability where the designer, for example, exposes the building owner to third party claims for “nuisance” where the failure to avert the nuisance is considered a breach of the duty to use reasonable care and skill.

An action in private nuisance against a building owner would only be available to those with a legal interest in land close to the building causing the nuisance, but liability might be avoided (or at least mitigated) by any steps the building owner might reasonably be expected to take. Also, if steps to avoid the nuisance are disproportionately costly, liability might not arise.

A public nuisance would occur where the owner was aware of the nuisance emanating from its building and had the means to prevent it yet did nothing about it. It seems that reflected sunlight could constitute a public nuisance where it interfered with the comfort of the public at large.

Finally, although a local authority can serve an abatement notice under the Environmental Protection Act 1990 where certain specified causes have led to a nuisance, reflected sunlight is not one of those specified causes. Therefore, third parties may have remedies against building owners which the latter will look to pass on to the designer on the basis that the designer failed to exercise reasonable care and skill.

Liability to unconnected third parties

Courts have been reluctant to permit recovery in the tort of negligence in respect of pure economic loss, such as the costs of repairs to a defective building. However, a building designer will owe third parties a duty to take care that his designs do not cause them injury or damage their property (so long as the property is not the building itself).

Thus, for example, physical damage caused by incorrectly specified glass shattering and falling onto a passer-by, or a vehicle parked next to the building, will be actionable. The injured party could recover damages for their physical losses whilst the building owner would not be able to recover in tort for its repair costs. In addition, the injured party may be able to recover economic losses which are immediately consequential upon such injury or damage.

Courts are sympathetic to innovation and do not look to discourage radical and iconic designs. However, building designers should consider any detrimental effect on the building’s immediate environment.

Liability will not always follow if third parties suffer damage: standards will be assessed by reference to what is expected of the ordinary competent and skilled designer of the relevant discipline.

The Walkie Talkie’s owner seemed to take swift action to prevent further occurrences, but the more substantial cost is likely to be a more permanent solution to prevent further damage by the glare. • This article is intended to provide general guidance. It is by no means exhaustive and should not be treated as a substitute for full independent legal advice.

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