The QS is concerned with value and quantity, so it is right that the law should not require them to be held responsible for matters of quality
There is no doubt that quantity surveyors are highly skilled professionals who know a lot about the detail of construction methods. However, Tony Bingham appears to agree with Hudson that, given their expertise, they should have a legal duty to report on defects they observe on site. I cannot agree. If this is the case, then wouldn’t architects, with years of experience of administering construction projects, also have a duty to notify the QS of inaccuracies in the latter’s valuations?
Such a clouding of the lines of responsibility could be a tempting proposition for claimants. The current economic climate for all construction professionals is tough and some contractors and consultants are, sadly, becoming insolvent. In the last recession there was a profusion of claims against construction professionals, who were seen as having the only available deep (insurance lined) pockets to meet a claim. So if the contractor becomes insolvent, sue the architect for failing to administer the contract; if the designer cannot meet the claim against them, sue the other professionals for failing properly to co-ordinate.
It all comes down to whether a professional who has been engaged to carry out one particular service ought to be liable for far more than they bargained for. Or, to look at it another way, is the professional duty bound to do more than they were hired (and paid) for?
This potential blurring of the boundaries between each consultant’s responsibilities - which could have had dire consequences for professionals and their insurers - has been clarified by Mr Justice Coulson in Dhamija vs Sunningdale Joineries and others.
The QS’ role is concerned with value, so the QS’ role - and liability - ought to begin and end with getting the quantities right
The claimants contended that the QS had a positive duty to inspect the works, so as to draw the architect’s attention to elements which they, as quantity surveyors, thought were “obviously defective”. In short: the quantity surveyor ought to have been a “quality” surveyor as well. As to whether such a duty exists, the judgment in Dhamija could not be clearer: “On the basis of the material before me, I can see no basis in fact or in law for this positive duty …”
The judgment appears to focus on process, rather than on deeper philosophical questions as to what a QS ought to be required to do. In a JCT contract, it is the architect who certifies interim payments. It therefore must be the architect who is responsible for establishing the quality of works and who must decide whether to exclude works from an interim valuation because they do not conform to the contractual requirements. The QS’ role is concerned with value, and it therefore seems to me that the QS’ role - and liability - ought to begin and end with getting the quantities right.
In my view, it does not oversimplify matters to suggest that, if something is supposed to do what it says on the tin, then QSs’ liability should be concerned with their duty to survey quantities - and no more.
Of course, QSs should communicate what they see on site to the architect. Their contracts may even require them to do so. But that is not the same as making QSs liable in law for what they see - a view that Dhamija appears to endorse. It is notable that although evidence was given in Sutcliffe v Chippendale & Edmondson (1971) to the effect that “where work was clearly wrong, it had to be excluded” by the QS, Mr Justice Coulson found that that evidence formed no part of the judgment in Sutcliffe and that that case did not therefore support such a proposition.
The editors of Hudson will need to revise paragraph 2-230 in their next edition, since Mr Justice Coulson has ruled that passage to be “wholly unreliable”. No matter how skilled
each construction professional on a project may be, a judgment that suggests that the consultant’s liability is tied to their own field of expertise is one that should be welcomed by all architects, engineers, project managers and QSs. Eyes should always be peeled - but those eyes should be focused on their own duties, not someone else’s.
Matt Walker is a senior associate at Barlow Lyde & Gilbert