Design Liability: Identifying ‘Who’ is Responsible

Design liability has become a ‘hot potato’ in the construction industry, quickly being passed from one party to the next. In recent years, this has caused some confusion, leaving the industry asking the question—who does it fall on?  

The Building Safety Act (BSA) has introduced significant changes to the industry, shifting focus to a building’s design and competency of construction professionals. Though the BSA mainly applies to high-rise and high-risk buildings*, the principles of the Act are not lost on other types of buildings and should be considered as such.

*Buildings greater than 18 metres in height or more than seven storeys tall, containing at least two residential units.

The BSA states that where more than one contractor works on a project, the client must appoint “a designer with control over the design work as the principal designer.”

What is the role of the principal designer?

The principal designer is responsible for planning, managing, monitoring, and coordinating matters related to the design work. This also means ensuring other designers comply with their duties and produce designs in line with relevant building regulations and competence requirements. The principal designer works alongside the client, principal contractor, and other designers and contractors.

By appointing a principal designer, the BSA aims to establish a clear line of responsibility, ensuring a dedicated person is always accountable for a building’s design and compliance. This guarantees that fire safety is a priority from the outset of any construction project.

Who does design liability fall on?

The question of who carries design liability can often become cloudy, with different parties pointing fingers at each other. Ultimately, the principal designer must be a DESIGNER, whether an organisation or an individual.

They must have the correct knowledge, skills, experience, and behaviours to carry out this role while ensuring that they, too, address any of their own competency gaps.

Some argue that main contractors should take design liability since they manage a project’s design and build stages. Others believe architects should undertake this responsibility due to their crucial role in a building’s design. In many cases, however, the determination of who carries design liability depends on commercial agreements and the specifics of each project. In a worst-case scenario, it could even take legal involvement, where the judge decides who is responsible.

Design liability is a complex subject, needing careful consideration. It highlights the importance of having clear commercial agreements and a full understanding of the roles and responsibilities of all stakeholders.

Though the role of the principal designer will fall on to one person or company, all parties involved in the design and installation of firestopping systems carry responsibility too. This ensures the correct products are used and installed as per the test evidence. Everyone has their part to play.

What can support the principal designer?

The responsibility of being named as the principal designer can understandably make an individual or company feel wary. However, if those responsible for the design of a building incorporate tested firestopping solutions, there should be no reason for concern. Similarly, if main contractors can show the use of tested details and hiring of competent subcontractors, they can demonstrate their compliance with building regulations.

Due diligence. That’s the key here. It is easy to obtain a tested detail, but designers and installers must ensure they understand the ‘why’ behind the details they are using. This could be through regular training, such as CPDs, toolbox talks, or simply by engaging with the manufacturer. This ensures all parties understand the importance of installing tested solutions and following manufacturers’ guidance.

What is required?

Accepting design liability requires a cultural change and a better understanding of responsibilities. Some main contractors are leading the way and taking full design liability. However, this starts with clearly defining and managing who holds design liability from the early stages of a project. While the Building Safety Act encourages this, the construction industry must work to implement it.