Mr. Swift purchased land for the purpose of constructing a single-family home. Mr. Swift signed the architect's agreement which contained a liability clause that limited the architect's liability to $500,000, and this extended to its sub-consultants. This clause covered "any and all claims... which arise solely and directly out of the Designer's duties and responsibilities pursuant to this Agreement... whether such claims sound in contract or in tort.

The architect sub-contracted with a structural engineer. The engineer designed the home to comply with Part 9 of the Building Code when it ought to have complied with Part 4. The mistake was discovered and the engineer agreed to redo the design. The engineer made a mistake in fixing the design but was himself unaware of the mistake. He later confirmed to the architect that he had fixed the design.

As a result of the engineer's misrepresentation, Mr. Swift incurred $1.9 million in damages for getting someone to fix the mistake and from having his wall collapse, and subsequently sued both the architect and engineer. The architect settled its claim prior to trial for $1 million. Both parties proceeded against the engineer. Against the engineer, Mr. Swift claimed damages for negligent misrepresentation.

1. Is the exclusion clause enforceable?

2. Will Mr. Swift be successful in his suit?