Q&As

Are you aware of any cases or guidance regarding an independent design checker’s liability when it approves a design and build contractor’s design that proves to be defective?

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Produced in partnership with Abdul Jinadu of Keating Chambers
Published on LexisPSL on 13/06/2017

The following Construction Q&A produced in partnership with Abdul Jinadu of Keating Chambers provides comprehensive and up to date legal information covering:

  • Are you aware of any cases or guidance regarding an independent design checker’s liability when it approves a design and build contractor’s design that proves to be defective?

Are you aware of any cases or guidance regarding an independent design checker’s liability when it approves a design and build contractor’s design that proves to be defective?

This Q&A considers cases on the liability of a party appointed by the employer to review and approve a design developed by a contractor in a design and build contract. This role is sometimes known as an independent checker/reviewer or simply the employer’s design consultant (although this latter term could also describe a designer engaged by the employer to undertake design work in a traditional procurement situation). Design checking or design verification is not a topic which has been considered in any great depth or with any great frequency by the courts, therefore there is limited assistance to be found in the authorities.

The scope of the duty owed by a professional body engaged to check or verify a design was considered peripherally by the Court of Appeal in MT Hojgaard A/S v E.ON Climate and Renewables UK Robin Rigg East Ltd. In that case the contractor designed, fabricated and installed the foundations for wind turbines in 2007 in accordance with the employer’s requirements document and with the specification DNV-OS-J101 issued by the certifying authority (DNV). Following the failure of other wind

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