Given their particular expertise, architects do not undertake a duty of care to the client which extends to an assumed responsibility for specialised aspects of engineering design in the absence of an express undertaking to that effect or which can be properly implied from the circumstances, including the nature of the retainer and any holding out. An analogy can be found in a solicitor's duty of care which would not ordinarily extend to undertaking responsibility for commercial as distinct from legal advice. Thus in Teachers Health Investments Pty Limited v Wynne (1996) NSW Conv Rep 55-785 Beazley JA said: "It is well established that it is no part of a solicitor's function to give commercial or financial advice…" but added the important caveat, relevant here, "unless retained to do so".
45 Thus the scope of the Architect's duty of care here depends upon the responsibility assumed by the Architect for services undertaken to the Plaintiffs having regard to the nature of its retainer. However, just as, for example, an agent solicitor's duty is not confined to doing what it was retained to do as agent solicitor (or what it was specifically asked to do by the principal solicitor) so there is a duty owed to the client to exercise reasonable care and skill in course of its retainer to take all reasonable steps to avoid any real and foreseeable risk of economic loss to the client; Westward Clothing Co Pty Ltd v Freehill Hollingdale & Page [1999] VSC 266 (Smith J, 30 July 1999, unreported). The question is whether that proposition similarly applies here. The Plaintiffs have the onus of establishing that the Architect did in fact assume responsibility for procuring and for supervising engineering design as it affected structural adequacy, including relevant communication with the Engineer as well as overall supervision of the construction. In the present case the Plaintiffs contend that required the Architects at least to ensure, by a proper system of communication between Architect and Engineer, that the western wall be not built or left as an internal wall lacking sufficient structural stability. If indeed the Architect did undertake those functions, then insofar as the Architect failed in carrying them out, that must according to the Plaintiffs give rise to liability in negligence, subject to any defences, for what was a foreseeable risk of damage to the Plaintiffs; they were clients known by the Architect to be relying upon the Architect for the carrying out of that assumed responsibility and vulnerable in the event of failure to do so. Such a duty of care is capable of arising incrementally to the conventional advisory relationship of architect and client, as its salient features are not of themselves such as to preclude a duty of care of that scope; I here adopt the High Court's treatment of duty of care and its scope in Perre v Apand Pty Ltd ([1999] HCA 36, 12 August 1998, unreported) per Gleeson CJ, paras 8 to 14 concurring in the judgment of Gummow J especially at paras 297 to 302. It remains to determine whether the Plaintiffs have satisfied the onus of establishing a duty of care so extending not merely for ordinary architectural design, but embracing additional responsibility for procuring and supervising engineering design, including communication with the Engineer.
46 The Architect contended that the arrangements between it and the First Plaintiff, Mr Bailey, and in turn between it and the Engineers were such that no such duty of care was owed, certainly in this extended form. This was on the basis that the Architect, as was customary and as understood by the Plaintiffs, was in turn relying upon the expertise of the Engineer as regards design of the structural elements of the building and assumed no responsibility for that itself. That is disputed by the Plaintiffs. The Architect relied on Mr Low, the Plaintiff's expert engineer, who accepted that an engineer has certain expertise in relation to the design of structural elements of the building that an Architect may not have (T, 127(15-25)). Thus he acknowledged that the Engineer's input is important because his or her structural design goes to ensuring that the building stays up, which is a most important part of the overall design process (T, 127(25-32)).
47 Mr Low acknowledged that architects do reasonably rely on the experience of engineers in preparing a design that is structurally sound (T, 127(30-45)).
48 Mr Rasa from the Architect gave evidence that in a project of this nature (with no internal supporting columns), the brickwork was the load-bearing component of the building. As such the brickwork forms the structural component of the building and, as he saw it, it is up to the engineer to document it in the way that he sees fit (T, 170(25)).
49 The western wall was a structural wall. Being a structural wall, according to Mr Rasa's evidence, the architect "cannot demonstrate bracing or what needs to be done to keep that wall structurally sound". That he said was the engineer's job "because the load-bearing brickwork is the major structural component of the building" (T, 170(32-35)).
50 The Architect's case was that even though Mr Rasa admitted that it would have been very simple for an architect to have placed on his drawings a notation of "insufficient strength for this external wall", it was not proper to do that in this case because the walls were a structural element and therefore anything of this nature had to be done by the engineer. The Architect's case was that the architect could not comment on structural matters, nor could they make notes of an engineering or structural nature, because they are not structural engineers (T, 177(5-20)).
51 The uncontradicted evidence of Mr Rasa was that the Development Application drawings were sent to the Engineer, being the drawings contained in DX2. These drawings contained a notation of "stage 1". I am satisfied that should have sufficiently alerted the Engineer that this was a staged development. The Engineer was never called to refute Mr Rasa's evidence that those drawings were so sent. Indeed the Engineer gave no evidence, so that it was not in contest that I should infer that any such evidence would not have assisted the Engineer's case.
52 In response to any contention that the Architect had insufficiently advised the Engineer that the development was to be staged, the Architect noted that under cross-examination Mr Low confirmed that the most important thing that the Architect had to do was to advise the Engineer that there was to be a staged development (T, 126(50)). Mr Low agreed that one way to do this was to note it on a plan provided by the Architect to the Engineer (T, 127(1)). Upon being shown DX2, that is to say the plan represented by it, Mr Low acknowledged that the staged development was noted on the plan and that the Engineer should have been aware from that plan that the development was staged. If that were all there was to it, that could be accepted as being sufficient to alert the engineer to the need to do the engineering design accordingly.
53 However, the Plaintiffs put their case against the Architect on a different basis. Essentially it is that the Architect was, or ought to have been aware, that when the Engineer's designs were received back by the Architect from the Engineer, it should have been apparent to the Architect that the Engineer had not designed for a staged construction, though the Architect had referred to "stage 1" in the plans initially sent to the Engineer. The Plaintiffs contend that the Architect's failure to identify and communicate that error to the Engineer was critical and was due to a lack of a basic system of communication, in the absence of which the Architect could not safely proceed. That in turn breached the Architect's responsibility though it was not to be expected that he would carry out the structural design himself.
54 The Plaintiffs' case is that the Architect held himself out as offering a full design service which must at least extend to responsibility for failing to identify to the Engineer that the Engineer had in turn failed to do the necessary design for structural strengthening of the western wall. At that minimum level of responsibility, the Architect was not asked or required to specify the particular structural design steps that should be taken but simply to point out that none had been specified by the Engineer to whom the Architect had passed on the task.
55 Mr Rasa gave evidence that he received the engineering design drawings between April to July 1990. At T, 168(57)-169(6), Mr Rasa was not prepared to deny that, when he received the Engineer's drawing on the first occasion, he was "then aware …. that the Engineer was not designing for a staged construction". He said, it was "hard to recall" and that he was not aware what conversations there had been between others in his office and Mr Sherson, the Engineer (T, 171(14-40)). As to his recollection as to "what was being documented" he said, "…. in honesty I can't recall" (T, 169.42).
56 He agreed, as to the Engineer's drawings, "all drawings show that [western wall] as an internal wall" (T,170(1)), and "it was on our drawings as an internal wall" (T, 170(6)).
57 Finally at T, 170(16) he had to concede: "when you got his drawings in 1990 you knew that he had designed the wall … as an internal wall? - Yes".
58 The cross-examination proceeded as follows (T, 170(21-35)):
"Q. By that knowledge you knew that he had not designed that wall for a staged construction, that's correct, isn't it?
A. That is not quite correct because in a project of this nature the brickwork was the load bearing component of the building. As such when the brickwork forms the major structural component of the building, it's up to the engineer to document it in the way he sees fit. Now he documented it as stage 2 being carried on fairly shortly afterwards, I would have assumed then that something were to be done about that wall. He would have designed something with that wall to make sure it is okay before stage 2 went ahead because being a structural wall we can't designate bracing, or what needs to be done, to keep that wall structural sound. That is his job because the load bearing brickwork is the major structural component of the building."