Flooding - The Risks For Design Consultants

Managing Riskclient may not be willing to incur the cost of flood
As far as possible, a structured approach should bemitigation measures which the consultant considers
taken to minimise flood risks on construction projectsadvisable. Such advice should be put in writing. An
which will involve:o Avoiding risks where possibleo'audit trail' will greatly assist the defence of any future
Where risks cannot be avoided, taking due cognisanceclaim.
of the risks in the design and providing appropriateContractual Considerations
advice and warning to the clientThe first and most obvious advice point to make is
Assessing the Risksthat the consultant should ensure that he has a written
On any construction project there are likely to be twocontract which, amongst other things, clearly sets out
separate but related considerations:o Is the proposedthe scope of the services that he has agreed to
structure itself vulnerable to flooding?o Is constructionprovide.
of the proposed structure likely to increase the risk ofLiability arising from provision of those services can be
flooding elsewhere? This in turn requires considerationlimited or in some circumstances excluded. Contractual
of the separate risks involved in the process ofprovisions that a consultant should consider as a
construction (risks arising from temporary works andmatter of course (both in relation to flooding risks and
which may or may not be the responsibility of themore generally) include:o Excluding liability for default of
professional) and risks arising from the mere presencesub-consultants appointed with the agreement of the
and/or operation of the permanent works.cliento Excluding liability for consequential losseso
Flood prevention works fall into a category of theirLimiting liability to a specified sum (liability should be
own where the consequences of failure may becapped at a level not exceeding the amount of the
catastrophic. Any significant project is likely to involve aconsultant's professional indemnity insurance cover)o
desk study of more or less detail. The desk studyRestricting liability to the consultant's fair share of a
should include investigations into the flooding history ofloss on the assumption that other responsible parties
the site.will meet their own fair share of the loss (by means of
A desk study is likely to highlight risk factors for aa net contribution clause)o Appropriate exclusions or
locality which will need to be supplemented by sitecaveats, particularly where the consultant is acting in
investigations such as ground investigations andan advisory role or providing a survey report
topographical surveys.Conclusion
If site investigations are provided by the client orRisks of flooding, like many other risks encountered in
commissioned from other consultants, the professionalconstruction works can be managed provided that
can generally expect to rely on them but he is notthey are recognised and properly assessed. Liability for
absolved of the responsibility to consider theirrisks that cannot be avoided or designed out may be
adequacy. If they are inadequate, the client should bemitigated by appropriate use of contractual exclusions
told. If the design is based on assumptions, the designand limitations.
assumptions should be spelt out.This document does not present a complete or
Document the Riskcomprehensive statement of fact or the law, nor does
Whether or not formal reports are issued to a client,it constitute legal advice. It is intended only to highlight
risks identified by the consultant should be discussedissues that might be of interest; specialist legal advice
with the client and those discussions documented. Amay be required where appropriate.