West –v- Ian Finlay and Associates (2013) Lawtel, TCC
Mr and Mrs West hired Ian Finlay, Architect, to design and specify extensive improvements to their home. The Architect was to supervise the works when it was subsequently found that no proper waterproofing had been put in to the new concrete floor slabs and there were defects in the mechanical and electrical installations which were so severe they had to be entirely removed and replaced. The builder then became insolvent and Mr and Mrs West sued the architect.
- To succeed in negligence against a construction professional the Claimant had to establish that if the professional had exercised proper or reasonable skill and care, then the works would have proceeded as designed and specified.
- The architect argued in his defence that even if he had spotted the problems, the builder would have done nothing about it. The court found that as the architect had clearly been negligent, the burden of proof in establishing this argument fell upon the architect, and that burden was not satisfied.
- The court held as a fact that the architect’s design for waterproofing the slabs was inadequate and negligent; and that the failure to notice the poor installation of pipe work (M&E) and the failure to notify the contractor accordingly was negligent and further amounted to a breach of contract.
a) Although the architect had negotiated a net contribution clause, and this was not contrary to the unfair contract terms legislation, it did not apply in these circumstances and the facts of this case;
b) Mr and Mrs West were awarded, in addition to their specific damages, general damages of £14,000 for “inconvenience, distress and discomfort”. The courts are increasingly inclined to take a general damages claims from members of the public very seriously;
c) this case appears to indicate considerable sympathy in the TCC for the plight of consumers and non-professional litigants.
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