Architect and planner liability in construction: who is liable for planning faults

Architects and planners are subject to a strict standard of care. Under section 1299 ABGB a person who publicly professes an art, a trade or a profession thereby holds himself out as possessing the necessary above-average skill and diligence. That is precisely what an architect or planner does. He is therefore liable for lacking this special diligence.

What matters is not the personal ability of the individual but the objective standard of his profession. The planner must deliver what may be expected of an average expert in his field. If he falls short of it and damage arises from this, he is liable, even if he subjectively made an effort.

The law draws a limit at the contributory fault of the client. If the client knew of the expert’s inexperience, or with ordinary attention could have known of it, part of the responsibility falls on him too. The standard of care under section 1299 ABGB therefore does not protect the building owner who knowingly engages a recognisably unsuitable planner.

A warning and advisory duty is added to the standard of care. Under section 1168a ABGB the contractor is liable for the failure of the work where it rests on obviously unsuitable materials supplied by the client or an obviously incorrect instruction of the client and he did not warn. Within his sphere of expertise this warning duty also binds the planning and supervising expert by analogy.

The planner must therefore point out recognisable risks that lie within his sphere, for example a defect in the foundations, an unsuitable specification or a detail that cannot work in that form. If he omits the warning that is called for, he can be liable for the resulting damage, even if the faulty specification does not stem from him.

Section 1300 ABGB also governs advisory liability. An expert is liable, even outside a contract, for damage that he causes by negligently giving wrong advice for a reward in matters of his art or science. A person who knowingly gives wrong advice is liable more widely. In this way the law also captures the planner’s faulty professional information.

Liability follows the spheres. The planner is liable for faults of planning and site supervision, the executing contractor for faults of execution and for his own breaches of his warning duty. Where the damage clearly stems from one of these spheres, the attribution is clear and the respective responsible party answers for it.

In practice, however, several causes often combine. A planning fault meets defective execution, an omitted warning meets an incorrect specification. If the shares of causation cannot be separated, joint and several liability of several participants towards the building owner can exist. The building owner can then hold each responsible party liable.

Internally, the participants then apportion the damage through recourse according to their shares. Delimiting the spheres usually requires an expert opinion that attributes the causes to the planning, the supervision or the execution. How such an opinion orders the dispute is explored in our article on the expert opinion in a construction dispute.

The planner’s liability moves within the framework of warranty and damages under the ABGB. The planning and supervision contract is a contract for work. If the planner delivers a defective work, the warranty remedies come into consideration, alongside a claim to compensation for the damage where there is fault.

For the damages claim the standard of care of section 1299 ABGB is decisive. It determines whether the planner breached the diligence he owed. If the damage arises from his sphere and an average expert would have avoided it, the breach of the duty of care is likely.

How warranty and damages relate to each other in construction defects and which deadlines apply we treat separately. An overview is provided on our focus page on construction damages and liability and in the article on warranty versus damages in construction defects.

Document the damage comprehensively: photographs of the damage, the date of discovery, the planning documents and the correspondence with planner and contractor. Record which specifications were made and who delivered which service. These records form the basis of every attribution.

Try to narrow down the likely cause: does the fault lie in the planning, in the site supervision or in the execution. Often this cannot be answered without expert knowledge. An expert opinion is then the key to separating the shares of causation cleanly.

If the other side does not respond or the attribution remains disputed, early legal advice is sensible. A legal assessment clarifies whether the planner or the contractor is liable, whether joint and several liability comes into consideration and how to enforce your claims. The article on the contractor’s warning duty for additional costs and defects is also helpful.