Can an employer's consultant incur liability when errors remain in contractor design documents it reviewed or approved?
Review or approval may expose a consultant to liability where the appointment required that task and it was performed without reasonable skill and care. The contractor's design responsibility does not by itself extinguish the consultant's separate duty.
Liability depends on the consultant's defined review duty, breach of the required standard and proof that the breach caused loss within the purpose of that duty
First construe the appointment and the building contract. "Review", "comment", "consent" and "approve" may impose different tasks. If the consultant undertook to examine specified design documents, it must perform that task with the contractually required skill and care. The employer must still prove breach, factual causation, scope of duty, recoverable loss and any allocation of responsibility to the contractor or others. Approval does not ordinarily relieve the contractor of its own design obligation unless the contract says so.
| Issue | Position |
|---|---|
| No review duty in the appointment | Liability cannot be founded on an unassumed task |
| Defined review or approval duty | Must be performed to the applicable professional standard |
| Contractor retains design responsibility | Does not automatically exclude concurrent consultant responsibility |
| Error would not be found by the required review | Causation or breach may fail |
| Claimed remedial cost | Must fall within the purpose and scope of the duty |
Start with the consultant's appointment
The appointment defines the services assumed, the professional standard, any specialist limits and the information on which the consultant may rely. A consultant engaged for cost management should not be treated as a design checker without clear wording. Conversely, a consultant expressly required to approve working drawings cannot avoid that task merely because the contractor carries primary design responsibility.
The building contract also matters
Design submission provisions may require only receipt, permit comments, prohibit work pending consent or require formal approval. The wording should state whether the review concerns compliance with employer's requirements, design coordination, buildability, statutory matters or technical adequacy. It should also state that the contractor remains responsible for its design unless a different allocation is intended.
A stamp marked "approved" may imply a wider examination than the consultant intended. Use review-status terminology tied to the appointment and the contract.
George Fischer: the assumed duties controlled
The employer's representative was alleged to have failed to approve working drawings properly, inspect roof work and administer completion. The court treated the appointment as requiring approval of working drawings and rejected the asserted reasons for not carrying out the relevant inspections. The case demonstrates that liability begins with the services actually undertaken and the manner in which they were performed.
Professional negligence elements
| Element | Required analysis |
|---|---|
| Duty | Identify the contractual or tortious duty and the precise service assumed. |
| Standard | Establish the skill and care reasonably required of the relevant discipline. |
| Breach | Prove what a competent review would have identified or required. |
| Factual causation | Show what would probably have happened if the duty had been performed. |
| Scope of duty | Confirm that the claimed harm was among the risks the review was intended to guard against. |
| Loss | Prove reasonable remedial or other recoverable loss, allowing for betterment and mitigation where relevant. |
Current scope-of-duty principle
The Supreme Court explained that recoverable loss in professional negligence depends on the purpose of the duty assumed. The court asks what risk the professional service was intended to protect against. Applied to design review, that requires close attention to why the consultant was asked to examine the documents and what harm that examination was meant to prevent.
Construction design and repair loss
The Supreme Court held that repair costs for structural design defects fell within the purpose of the structural engineer's duty on the facts before it. The case concerned the designer responsible for the defective structural design, not an employer's agent carrying out a limited review. It confirms the purpose-based analysis but does not enlarge a reviewer's appointment.
Concurrent responsibility
The contractor, design subcontractor and reviewing consultant may each owe distinct obligations. Responsibility must be analysed separately before questions of contribution arise. The fact that the contractor should have produced a correct design does not prove that a reviewing consultant exercised reasonable care, nor does negligent approval necessarily transfer the contractor's contractual design risk to the employer.
Appointment and workflow controls
Define each design-review service and its purpose.
Match the task to personnel with the required discipline and competence.
Use review codes that state what has and has not been checked.
Record comments, responses, close-out and unresolved departures.
State whether work may proceed before review is complete.
Preserve the contractor's continuing design responsibility expressly.
Do not certify completion while known design or workmanship defects remain unresolved.
Authorities
| Authority | Citation | What it decides |
|---|---|---|
| George Fischer (GB) Ltd v Multi Design Consultants Ltd and others | 1998 | The consultant's stated drawing-review and inspection duties were central to liability. |
| Manchester Building Society v Grant Thornton UK LLP | [2021] UKSC 20 | The scope of professional liability depends on the purpose of the duty assumed. |
| URS Corporation Ltd v BDW Trading Ltd | [2025] UKSC 21 | Repair costs for structural design defects fell within the designer's duty on the facts. |