S.I. 9 and Insurance Claims: Deirdre Lennon MRIAI
by Bregs Blog admin team
Deirdre Lennon MRIAI is a Director of Gilroy McMahon Architects and an RIAI Council Member 2014
It is hugely unfortunate that the Royal Institute of the Architects of Ireland (RIAI) did not provide a forum for discussion on the proposed Building Control (Amendment) Regulations (BCAR) nor did it ask the membership to contribute to an informed discussion at the appropriate time. You will all recall back in May 2012 when the RIAI invited us to write directly to the Dept. of the Environment on the matter and copy in the Institute. At the time I wrote a strong letter of protest outlining my many concerns but I heard nothing from either recipient.
At the RIAI Annual Conference in 2013, those opposed to the proposed S.I 80 legislation were denied access to the podium. Balance was not offered by providing information for and against the legislation. Alternative perspectives and well considered opinions on BCAR were not welcomed.
The support given to this legislation without reference to the membership is at the centre of our current problems. Opposing views to BCAR have not been heard and this practice, as I see it, continues. Change in this context is challenging.
The membership will be aware that S.I. 9 is seen by some as having direct benefits for architects as a new source of income or as a reborn power base in the construction sector. Seeing us as the most appropriately trained for the role of Design and/or Assigned Certifier is for me the most challenging of all contentions.
In practice when legal actions arise Architects as Assigned Certifier and Design Certifier will have to rely on their Professional Indemnity Insurance policy, and hope for a fair hearing.
In reality I believe the situation may be different. We know of a recent case where a claim was settled rather than fought by the Professional Indemnity Insurance company without reference to or agreement of the defendant. The insurance excess was called upon without the lead architect having any say in a legal dispute which was more appropriately between a third party consultant, the ‘expert designer’ and the injured party.
The Architect as Assigned and Design Certifiers will take responsibility in law for others by accepting responsibility for certifying that the work of others complies with BCAR – the benchmark test in many if not all claims.
Architects acting as Assigned Certifier and Design Certifier have been advised that Professional Indemnity Insurance is readily available at market rates. The reality is that the Architect as Assigned or Design Certifier has increased his/her risk exponentially.
The new Assigned Certifier’s and Design Certifier’s Certificates will provide legal certitude and valid support for the claimant in all cases. This will increase risk for the Insurer who will seek to reduce his costs and as in the above case, in all probability, settle prematurely. I predict that there will be little appetite to examine the details of the case or take action against the Ancillary Certifier or Contractor and the Architect will be left to legally pursue the Ancillary Certifier/s and/or Contractors independently and at their own costs.
S.I 9 has been poorly considered and is not a sustainable model for creating a mature and responsible construction sector.
Deirdre Lennon MRIAI