Shaky ground

Mr & Mrs Serhan lived happily in their north London home for 15 years. Then one day in 1990, it cracked. They asked a surveyor called Norris Reading to design a remedy. The answer was to underpin near the back. So, they got a contractor called Amphipile. The contractor decided how to do the job and did it. It was all done tickety-boo. Snag is, the crack kept on cracking.

Some other surveyors now said that the original underpinning was not enough. It was all a waste of money. No, no, said the original surveyor, it was OK at the time. But if it wasn't, it was the contractor's fault – it was responsible for design. And even if the contractor wasn't responsible for design, it still had a duty to the surveyor to record and report on what it discovered when digging and burrowing, to say: "Look here, mate, that design won't work." The Serhans weren't bothered with all that. They sued Norris Reading and won the wasted expenditure. Norris Reading then tried to persuade the court that Amphipile should pay up. An uphill task. The surveyor and contractor were each in contract with the homeowner, not with each other. So, if the surveyor tried to say the contractor was responsible for designing the underpinning, "it would have to show there was a design promise in the building contract between owner and contractor". The court could not find such a promise in the building contract.

So, the surveyor tried to prove a "common law" duty to look after another person with whom there is some connection. The barrister for the contractor explained to the court that, without a contract, such a link can only exist when someone with a "special skill" undertakes a task to apply that skill for someone whom he knows will rely on that skill. This could be in the form of advice, information or the performance of a service. None of that could be found. There was no direct duty of care between contractor and surveyor.

Although common sense is talked about in court, a lawyer still has to find an express or implied term that fixes legal liability

Now then, let's consider some of those building projects of yours. At the simplest level, the designer is engaged to decide "what" should be built to meet the client's wishes. Then the client says to a builder: "This is what I want, can you build it and if so give me a price." In short, the "what" is down to the architect and the "how" to the builder.

Aah, if only life were so simple. Some contractors think that the architect is the "mother and father" of the job … deciding what and how. That's old fashioned. These days, the contractor often design and builds, deciding what and how. Between these two extremes there is a whole range of notions, some of them quirky. The notions are based, I think, on a firm belief that builders and some specialist contractors are out-and-out experts in their game. And because this fellow is an experienced builder or specialist he should keep an eye out for other peoples' blunders. This is more of: "Look here mate, that design won't work." This sort of "advice" is worth a million bucks. It is called looking after the other chap, and it makes building work. The snag is that this type of looking after doesn't necessarily come under the heading of a contractual or other duty. This is backscratching country. But backscratching isn't a term recognised much by the courts. The courts are more likely to say that if a specialist contractor or a builder spots a blunder, common sense requires him to speak up. And although common sense is talked about in court, a lawyer still has to find an express or implied term that fixes legal liability.

If Norris Reading thought it best for design liability to pass from its hands into the contractor's, and if it also wanted some formal "looking after" duty, then somehow the contractual framework has to say so. Pity, really: looking after the other bloke goes on all the while informally, and 99 times out of 100 works.