Must a contractor notify an architect/engineer of defects in his design

1.6 Must a contractor notify an architect/engineer of defects in his design? 1.7 Where an architect/engineer includes a new product in his design following advice from a manufacturer and the product proves to be unsuitable, is the architect/engineer liable to the employer for his losses? However Judge Bowsher had this to say when holding that the contractor had no duty to the architect to warn of defects:

Mr Gaitskell on behalf of the defendant relies on the decisions of Judge Newey QC in Equitable Debenture Assets Corporation v. William Moss (1984) and Victoria University of Manchester v. Wilson (1984). On analysis it is clear that both cases were concerned with a duty of a contractor to warn the employer, not a duty owed to the architect to warn the architect. References to a duty to give a warning to the architect were in both cases references to a duty to warn the architect as agent of the employer. It is clear from page 163 of the report of the Victoria University of Manchester case that the learned judge considered that both decisions were founded on implied contract between the contractor and the building owner. In each case, the learned judge cited Duncan v. Blundell (1820) and Bru.nswick Construction Limited v. Nowlan (1974). It is plain from the citation from the Bnl1ls'luick Construction case that the learned judge had in mind the situation where the contractor knew that the owner placed reliance on him in the matter Design 13 of design. It seems to me that the decisions in EDAC v. Moss and Victoria University of Manchester can stand with more recent decisions if they are read as cases where there was a special relationship between the parties, but not otherwise, and bearing in mind the difficulties in analysing the meaning of the words 'special relationship' and 'reliance' demonstrated by Robert Goff LJ in Muirhead v. Industrial Tank Limited (1986). On the facts of the present case it is not necessary to resolve those difficulties.'

1.7.2 The case of Victoria University of Manchester v. Hugh Wilson and Others (1984) arose out of a major development for the plaintiffs erected in two phases between 1968 and 1976. The first defendants were the architects for the development, the second defendants the main contractors and the third defendants nominated subcontractors. The architects' design called for a building of reinforced concrete (which was not waterproof) to be clad partly in red Accrington bricks and partly in ceramic tiles. In due course many of the tiles fell off and the University adopted a remedial plan which involved the erection of brick cladding with a cavity between bricks and tiles and with the brick walls attached to the structure by steel ties. It was held that the architect was liable as his design was defective. With regard to the use of untried materials Judge John Newey had this to say:

For architects to use untried, or relatively untried materials or techniques cannot in itself be wrong, as otherwise the construction industry can never make any progress. I think, however, that architects who are venturing into the untried or little tried would be wise to warn their clients specifically of what they are doing and to obtain their express approval.

SUMMARY Where an engineer/architect includes a new product in his design the employer should be informed at the outset. Failure to advise the employer would leave the engineer/architect exposed to a liability for negligence should the new product fail.