Design liability in construction contracts

The following Construction practice note provides comprehensive and up to date legal information covering:

  • Design liability in construction contracts
  • Design liability and standard of care—consultants
  • Design liability and standard of care—contractors
  • Responsibility for design under different procurement routes
  • Traditional
  • Design and build
  • Management contracting/construction management
  • Design liability and sub-contracting
  • Can a designer divest itself of design liability by sub-contracting?
  • Conflicting standards of care
  • More...

Design liability in construction contracts

If a party is said to have ‘design liability’, it means that it bears legal responsibility for all or part of the design of a construction/engineering project. Typically on a construction project, several consultants, and often the contractor and some of its sub-contractors, will be involved in producing and developing the design and will have ‘design liability’.

Parties with design liability may, however, be required to exercise different standards of care in relation to the design—some may be subject to an absolute obligation to ensure the completed design is fit for purpose, whereas others may merely be required to exercise reasonable skill and care. Responsibility for design is allocated in different ways depending on the procurement route selected and the parties may also expressly modify the standard of care required in relation to design in the building contract and consultant appointments. This Practice Note looks at the issues surrounding design and standards of care in what can be a contentious area between the employer and the construction/design team.

This Practice Note focuses on the relationship between the employer and the design team, but the same principles would apply if a third party were to make a claim against a designer (eg a funder, purchaser or tenant under a warranty'>collateral warranty). It also considers some of the other duties that designers on a

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