Judges confirm gross negligence by architect-developer who damaged neighbour's property

A court has confirmed the finding of gross negligence on the part of an architect whose construction project on a site that he was developing, while also acting as both architect and Site Technical Officer (STO) had caused damage to a neighbouring property,  but reduced the period of his suspension, ruling that the two roles are not incompatible.

Architect David Psaila had filed the appeal after his warrant was suspended for six months by the Council of the Chamber of Architects and Civil Engineers in September 2022 on the basis of gross negligence relating to damage caused by his work on a construction site that he also owned in Birkirkara.

Some 40 structural beams (travi) were removed from the party wall during the demolition works, which had caused cracks to appear in a neighbouring property and prompted the Chamber to take disciplinary action against Psaila, who was not present when the works were underway. 

In the decision appealed against, the Council had observed that the Condition Report and first three Demolition Method Statements that Psaila had filed to the Building and Construction Authority (BCA) had not been drawn up in accordance with legal requirements.

The role of an STO is to ensure that works are carried out in accordance with the Method Statement, explained the decision, before going on to say that “the evidence clearly indicates that David Psaila disregarded the importance of the role of STO as defined in S.L. 623.06 and failed to adequately enforce the demolition method statement." The Council ruled that personal risk was an unacceptable excuse for an STO’s absence from a construction site during delicate demolition procedures, as this personal risk could easily be mitigated.

“The Council considered that the deficient condition report on its own, albeit negligent, does not rise to the level of gross negligence. However, when compounded by the deficient method statements and the failure to actively enforce their provisions on the contractor, David Psaila acted in a manner which does indeed rise to the level of gross negligence.” 

“The fact that no serious accident happened or that more serious damage to the third-party wall did not occur during the demolition is, in the Council's considered view based on the evidence, fortuitous more than a result of professional rigour or the competence of the contractor.”

The Council decision had called for the immediate revision of the subsidiary legislation to eliminate what it described as  “anomalies designed to shift liability from contractors onto periti,” which it said, “distorted international best practice, European Standards, and well-established international Contract provisions” and demanded the Government to “immediately embark on the licensing of contractors to ensure works are executed safely and competently and that instructions and specifications issued by periti are followed without undue questioning or improvisations.” 

However, while expressing its disagreement with the provisions of the subsidiary legislation, the Council also pointed out that it “cannot condone transgressions of any regulations, however badly drafted. Nor can it condone failings by members of the profession to adhere to the law.” 

Appeal judgment

Psaila had appealed against his 6 month suspension, amongst other things arguing that the Council’s conclusion about shortcomings in the documentation submitted was wrong and denying having failed to carry out his duties as STO, or to having committed an ethical breach by simultaneously performing the roles of both architect and STO on the same project.

Psaila also argued that the Council’s decision had breached his rights, alleging it had exceeded its remit and acted as both prosecutor and judge at the same time, attacking the integrity of the Council.

In a decision handed down Wednesday, the Court of Appeal, composed of Chief Justice Mark Chetcuti, Mr Justice Joseph R. Micallef and Mr. Justice Tonio Mallia, said Psaila’s claims of having suffered a breach of his human rights were premature, pointing out that every decision by the Council can be subjected to further scrutiny by the courts.This was also the position adopted by the European Court of Human Rights in similar cases.

“This court is therefore empowered with full jurisdiction to scrutinise every action by the Council and should it find that the Council did not follow the law or made an incorrect decision, there is nothing stopping this court from rectifying that shortcoming.”

The judges noted that the regulations explicitly stated that the architect alone bore responsibility for a project’s method statements. 

The court also pointed out that Psaila had admitted to having made a mistake in the initial method statement he had submitted for the demolition works in September 2020, by failing to indicate that part of one of the property’s ceilings had been built differently to the rest.

“Although the appellant is describing this mistake as ‘small’, the Court disagrees. FIrst of all, the evidence shows that this ‘mistake’ was not about some ceiling of low risk, but one that precisely joins to the wall dividing the property from the house where the complainants resided…and was built with masonry slabs (xorok) entwined with that same wall.”

The architect should have been very careful about what structures were connected to the wall before carrying out demolition works, said the court, adding that it was convinced that this “mistake” was not the result of a genuine oversight but “a direct consequence of recklessness and a great lack of professionalism on the part of the appellant…[who had testified] that he drafted the first method declaration for the demolition works before having at least gone to inspect the building from the inside.”

Likewise the many changes to the method declaration, far from showing diligence on the part of the architect, were the direct consequences of his carelessness and his conscious decision to first draft a generic method declaration and to then amend it according to what emerged as the demolition works continued.

Not every legal act is necessarily ethical, said the court, and therefore the fact that the regulator allowed Psaila to wear many hats in the same project did not protect him in this case. 

However this also meant that Psaila was right to argue that the Council’s finding of professional misconduct on his part, for assuming the roles of architect and STO on the same project, was incorrect.

The two roles held different responsibilities and there was no function in the STO role which could be said to be in conflict with the professional duties of the architect on the same project. An architect who accepts to also act as an STO is burdened with more responsibilities, but the responsibilities themselves are not incompatible, said the court.

In view of this, the court ruled that Psaila should not have been found guilty of failure to observe regulations about the level or professional practice under the Code of Professional Conduct for Architects.

In view of this, the court upheld one of the grounds for Psaila’s appeal and reduced his suspension by a third, to 4 months. The court confirmed the rest of the Council’s decision.

Psaila was also ordered to bear two thirds of the costs of the case, with the other third to be borne by the Chamber of Architects.