Contracts

  • Reconciling Contractors’ liability under Occupiers’ Liability and their responsibility for Health and Safety on Construction Projects.

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    Charles Gavamukulya, MCIArb,AICCP

    Introduction

    Recently, Members of Parliament in Uganda were denied entry into a construction site of the Lubowa Specialized Hospital under the pretext that the Members of Parliament were visitors who did not have unfettered access to the construction site. This sparked debate across different platforms where the tax payers were struggling to understand why the MPs who play an oversight role for the government could not access a site of a public project. A number of key questions arose from this debacle: What informs the Contractor’s action of restricting visitors’ access to site? Does this affect a Contractor’s outlook towards Health and Safety protocols on the site?

    In trying to understand why visitors do not have unfettered access to construction sites, we need to understand the Contractor’s liability as an occupier under Occupiers’ Liability.

    Who is an occupier?

    An occupier is defined in the case of Wheat v E. Lacon &Co. Ltd as a person who exercises an element of control over premises. This control includes physical control of premises and legal control of premises as was established in Harris v Birkenhead Corporation. Often, it’s the case that after the commencement order, the Employer hands over the site to the Contractor. This is exhibited, for instance, in Subclause 2.1 of the 1999 FIDIC forms of Contract. It is also a common feature in the JCT forms of contract where the Employer is required to give possession of the site to the Contractor on the Date of possession which is stated in the Contract particulars. In London Borough of Hounslow v Twickenham Garden Developments, it was held that th Contractor was entitled to such possession, occupation or use as was necessary to enable it to perform the contract. The Contractor will then have possession of the site from the date of possession until the date of completion.

    Who, then is considered to be a visitor to premises?

    A visitor to premises (site) is considered in three categories, namely:

    • Those with express permission
    • Those with implied permission: Implied permission is also subject to limitations which, if exceeded, render the person a trespasser. In Harvey v Plymouth City Council, it was held that any implied permission to enter must be exercised properly.
    • Those with a right to enter: The law gives rights to entry to certain categories of people which render them within the definition of lawful visitors irrespective of the wishes of the occupier for instance police officers entering under warrant.

    A duty of care is owed by an occupier to the three categories of persons stated above. Visitors to the site therefore are duly covered under the Occupiers’ Liability Principle. The occupier’s duty is to ensure that the visitor is not injured while on the premises. This can be particularly highlighted for road projects that run over a long distance and are used by different visitors at different times of the day and night. The Contractor has a duty of care towards visitors in the three stated categories. As such, there has been a general shift in Contractors’ mindsets towards Health and Safety Protocols as most contractors have adopted to use preventive measures that will ensure safety for all visitors of the site/ premise. The same applies for building projects.

    Regarding the duty of care, although there is similarity with the standard of care in negligence, there is also an important distinction as an occupier is empowered by statute to determine the boundaries of his liability in section 2(1) Occupiers’ Liability Act 1957 in England and Wales for instance. Generally, since the occupier controls the extent of the permission to enter, a visitor who acts in a manner contrary to that permission becomes a trespasser. The issue of the trespasser will be dealt with below.

    Since children have access to sites sometimes and are largely considered to be less careful than adults, case law has sought to balance the responsibility between occupiers and parents as was seen in the case of Phipps v Rochester Corporation. Additionally, the level of care expected will depend upon the nature of the risk and the age and awareness of the child. In the case of Titchener v BRB it was held that no duty of care was owed to a 15-year-old boy who was struck by a train while walking on a railway line at night as he was aware of the dangers posed by his activity. A duty will exist if the land/premise holds concealed dangers or allurements that tempt children into danger as was seen in the case of Glasgow Corporation v Taylor.

    Use of Warning Signs

    Under the Occupiers’ Liability Principle, an occupier has a duty of care towards visitors and it may be satisfied if the occupier displays warning signs or cordons off areas that are dangerous. The following factors need to be taken into account when considering whether a warning sign was enough to enable the visitor to be reasonably safe:

    • A visitor should know what risk he is facing and therefore the warning has to be specific. As such, the Contractor could be liable where there is a deep excavation and he does not alert visitors to the site to it using a specific warning sign.
    • Hidden dangers necessitate greater efforts to call attention to them than readily apparent risks for instance as in the case of Staples v West Dorset District Council in the UK where it was held that risks posed by wet algae on a high wall were so obvious that there was no need for a warning sign. The Ugandan case of Gakumba v Mandela National Stadium Ltd also highlighted the fact that the defendant was liable due to absence of warning signs and security lights where there was an uncovered manhole.
    • Is the sign combined with other safety measures? The use of fencing or barriers emphasizes the need for safety.

    Who is a trespasser on a site?

    A trespasser is defined in the case of Robert Addie &Sons Ltd v Dumbreck as someone who goes in the premise without invitation of any sort and where presence is either unknown to the proprietor, of if known, is practically objected to. As such, it is true that in instances, a Contractor has limitations on who enters the premise(site). The key question then arises as to whether a Contractor bears liability on injuries to trespassers.

    The approach taken by the courts to determining liability towards trespassers can be seen in Young v Kent County Council. The issues of liability of injuries caused to child trespassers was further explored by Court of Appeal in Keown v Coventry Healthcare NHS Trust. Keown makes an important distinction between injury caused by the danger caused by the state of the building and the dangerous use of perfectly well-maintained premises. This was also seen in Tomlinson v Congleton where it was held that injuries arising from the claimant’s dangerous use of otherwise safe premises will not give rise to liability under the Occupiers’ Liability Principle.

    Conclusion

    The contractor, as an occupier, has a duty of care to keep visitors under different categories safe while they use the site. This can have lasting effect on the Contractor’s Health and Safety protocols as a way of dealing with this liability. Contractors are therefore encouraged to develop robust Health and Safety Protocols in order to keep workers and visitors safe while they use the site premises. Additionally, visitors are encouraged to act within the ambits of the set protocols and warning signs while accessing a construction site given the high risk of injury on construction sites.

  • Adjudication in Uganda: A critique of selected judgements from the Centre of Arbitration and Dispute Resolution (CADER).

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    Charles Gavamukulya, MCIArb,AICCP

    Introduction

    Adjudication is an Alternative Dispute Resolution (ADR) mechanism where an independent neutral third party makes a decision on a dispute between parties. The decision is temporarily binding. The adjudicator acts in an intermediate capacity on the spectrum between expert determination and arbitration. Adjudication is a common method of dispute resolution in the construction industry around the globe due to its benefits which include speed, flexibility, use of experts to resolve disputes, cost effectiveness and privacy. As such, it has also found a place in the construction industry in Uganda on public works however the uptake is still low in the private industry. This article will address the nature of adjudication in Uganda and offer a critique of selected judgements from CADER that seem to conflate adjudication and arbitration as the same ADR mechanism.

    Forms of Adjudication

    There are three forms of adjudication, namely: statutory, contractual and ad hoc. On the one hand, statutory adjudication is a form of adjudication in jurisdictions like England and Wales where there is an Act that applies to a contract between parties. The Act in this case is the Housing Grants, Construction and Regeneration Act (HGCRA) 1996 as amended by the Local Democracy, Economic Development and Construction Act (LDEDCA) 2009. When a contract falls within the description of a ‘construction contract’ in the Act, then a mandatory provision of dispute resolution by adjudication applies.

    Contractual adjudication, on the other hand, is a form of adjudication where an Act does not apply, but the parties have agreed a mechanism in their contract where they resolve disputes by adjudication. Lastly, Ad hoc adjudication refers to a form of adjudication where the parties have agreed to submit their dispute, without reservation, to adjudication, thereby giving an adjudicator impromptu jurisdiction to decide their dispute in circumstances where an Act does not apply and where there is no pre-existing contractual agreement to adjudicate. In Uganda, the most common forms of adjudication are contractual and ad hoc adjudication. Uganda does not have a statutory adjudication regime in place for the construction industry.

    Standard Form Contracts and Adjudication in Uganda

    Contractual adjudication in Uganda is common due to the proliferation of the use of Standard Form Contracts mostly on public projects and a few private projects. The common Standard Form Contracts in Uganda include the Public Procurement and Disposal Authority (PPDA) form of Contract, FIDIC forms of contract and the East Africa Institute of Architects form of contract which is usually used on building projects in the private industry.

    It is critical to note that there must be a dispute in order for the adjudication process to become operable. Courts have held in the case of AMEC Civil Engineering Ltd v Secretary of State for Transport [2004] EWHC 2339 that the word dispute should be given its normal meaning and there is no special meaning ascribed to it. A dispute crystallizes when a claim made by one party is either accepted, modified or rejected by the other party as was held in the case of Fastrack v Morrison [2000] 75 ConLR 33.

    The Adjudication process in the PPDA forms of Contract which are often used on public works has come under scrutiny in a number of cases at the Centre of Arbitration and Dispute Resolution (CADER) severally. CADER was established in the Arbitration and Conciliation Act 2000 in section 68 with a role of performing administrative procedures for Alternative Dispute Resolution processes which were mainly considered to be arbitration and conciliation. It was often the institution of choice for parties in appointment of adjudicators.

    Selected Cases at CADER

    Reference is made to the selected cases of Board of Governors, John Paul S.S Chelekura v Kheny Technical Services Ltd, China Jiangxi Corporation for International Economic and Technical Corporation v Cotton Development Organization, Namabale Enterprises Ltd v Busitema University and Plinth Technical Works Ltd v Hoima Municipal Local Government Council where the parties wrote to CADER requesting for the appointment of an adjudicator. All these cases had a similar dispute resolution clause which was adopted from the clause in the PPDA form of contract. The clause is replicated here for ease of reference:

    “24. Disputes

    24.1 If the contractor believes that a decision taken by the Project Manager was either outside the authority given to the Project Manager by the Contract or that the decision was wrongly taken, the decision shall be referred to any Adjudicator appointed under the contract within 14 days of the notification of the Project Manager’s decision.“

    The clause further reads that:

    “25. Procedure for Disputes

    25.1 Unless otherwise specified in the SCC, the procedure for disputes shall be as specified in GCC 25.2 to 25.4.

    25.2 Any Adjudicator appointed under the contract shall give a decision in writing within 28 days of receipt of a notification of a dispute, providing that he is in receipt of all the information required to give a decision.

    25.3 Any adjudicator appointed under the contract shall be paid by the hour at the rate specified in the SCC, together with reimbursable expenses of the types specified in the SCC, and the cost shall be divided equally between the Employer and the Contract, whatever decision is reached by the Adjudicator. Either party may refer a decision of the Adjudicator to an Arbitrator within 28 days of the Adjudicator’s written decision. If neither party refers the dispute to arbitration within the above 28 days, the Adjudicator’s decision will be final and binding.

    25.4 Any arbitration shall be conducted in accordance with the arbitration law of Uganda, or such other formal mechanism specified in the SCC, and in the place shown in the SCC.“

    In this case, the SCC stands for Specific Conditions of Contract. The SCC provided for the procedure for disputes to be as specified in the GCC 25.2 to 25.4 which are shown above and then provided for the Centre of Arbitration and Dispute Resolution to be the appointing authority for the Adjudicator.

    It should also be noted that the Contract defined an adjudicator as:

    “1.1 (b) The ‘Adjudicator’ is the person appointed jointly by the Employer and Contractor to resolve disputes in the first instance.” (Emphasis added)

    In the construction of this clause, the Executive Director of CADER stated that the definition of an adjudicator is synonymous with the function of the arbitration agreement set out in s.2(1)(e) Arbitration and Conciliation Act, Cap 4 which is replicated here for ease of reference:

    “arbitration agreement” means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of defined legal relationship, whether contractual or not.”

    The Executive Director further proceeded to state that “there is no provision in the ACA, which restricts the definition of an arbitrator.” (Emphasis added)

    He then adds that “I accordingly exercise the powers vested by S.11(4) ACA to appoint an adjudicator.” (Emphasis added)

    This was a consistent construction of the clauses and conclusion in decision across all of these selected cases.

    A Critique of these decisions

    It can be noted that there is a conflation of arbitration and adjudication which are different dispute resolution mechanisms. It is true that the parties chose CADER as an adjudicator nominating body basing on the fact that CADER was in place to administer this function, but this does not in any way call for the use of the definition of an arbitrator in the construction of the clause. CADER ‘s role in this case was to appoint an adjudicator and not an arbitrator.

    It should be noted that the parties had already defined who an adjudicator was in their contract and that the adjudicator had jurisdiction on disputes in the first instance. It can also be interpreted that there are two instances that the adjudicator would be called into action and that is when one of the parties was dissatisfied with the Project Manager’s decision but also when any other dispute crystallized between the parties as guided by the procedure for disputes in the SCC which was referenced above.

    The arbitrator would only be called into action when one of the parties is dissatisfied with the adjudicator’s decision. Whereas the Executive Director mentioned that there is no provision in the Arbitration and Conciliation Act that restricted the definition of an arbitrator, it is also true that an arbitrator and an adjudicator serve roles which may be different and have outcomes that have differing degrees of finality. An adjudicator’s decision is temporarily binding while the arbitrator’s award is final and binding. Therefore, it can be seen that an arbitrator and an adjudicator are not one and the same.

    Reference to an arbitration agreement is also faulty since in this case the parties were requesting for the appointment of an adjudicator for which they already had a pre-existing contractual mechanism to carry out that appointment and an Adjudicator Nominating Body named to do this. This contractual adjudication provision should not have been conflated with the arbitration agreement.

    In conclusion, adjudication and arbitration are two different procedures on the ADR continuum and therefore should not be conflated to mean one and the same. As such, it would not be correct to appoint an adjudicator using a section in the Arbitration and Conciliation Act in a country like Uganda with no statutory regime governing adjudication in the construction industry. This is critical in a situation where there is a provision for contractual adjudication between parties. The Arbitration and Conciliation Act 2000 governs arbitration and conciliation in Uganda and does not provide a similar legal framework as the HGCRA 1996 does in England and Wales. In any case, England and Wales have HGCRA 1996 to govern mandatory statutory adjudication and the Arbitration Act 1996 to govern arbitration.

  • Variations in Construction Contracts

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    Charles Gavamukulya, MCIArb,AICCP

    Introduction

    Variations -often referred to as changes- provide the biggest headaches to the Contract Administrator, who is also referred to as the Architect, Project Manager or Engineer, on construction projects. The 2022 King’s College London Report on the Construction Industry pointed out one of the leading causes of disputes as changes (variations) by the client. Change or variation is inevitable and often required on construction projects because of a number of reasons which include incomplete designs, new technology and materials plus changes in client and end user requirements. What also stands out is the fact that the Works are often unique since there is no prototype built for most construction projects. The Works being undertaken form the prototype and final product and therefore there is a high probability that changes will be effected in order to obtain the project goals.

    Why should construction contracts allow variations?

    The common law position is that parties have to do what they contracted to do-no more and no less. As such, without a provision for variations built into the contract, no change would be permitted. The Contractor would not be able to execute the Variations since they lie beyond what he contracted to do. This can be counterproductive to achieving project progress or completion where Works which are part of a variation are key to progress or completion. In order to cure this, a variation clause allowing unilateral change by the Contract Administrator allows the changes to become part of what the parties contracted to do.

    In case of a contract where the Employer is in charge of design, the Contractor may have a case in misrepresentation against the Employer who claims that a project is fully designed when it is not as was the case in Howard Marine v Ogden & Sons [1]. The provision allowing for variations deals with this liability.

    How can change be made in construction contracts?

    Change must be made by agreement which could either be by a further agreement between the parties with new consideration or by express agreement in the original contract. Express agreement in the original contract can be seen in JCT SBC/Q 16 in clause 5 supported by clauses 3.14, 2.29 and 4.22. In NEC 4, it is stipulated in clauses 14.1, 18.1,45 and 63.10-11 while in the 1999 FIDIC forms of contract, variations are primarily governed by Sub-Clauses 13.1 to 13.3.

    In making a change by further agreement, the parties need to be clear whether what they are attempting to do is one of the following scenarios, namely:

    1. Revising the terms of an existing contract which constitutes a variation.
    2. Agreeing to a new and additional contract which would lead to the formation of a collateral contract.
    3. Replacing the original contract with a new one which would constitute a rescission of the contract.

    Change by further agreement cannot be brought about by undue pressure as that would lead to voiding of the new contract. This was seen in the case of D&C Builders v Rees [2].

    Change made by express agreement in the original contract means that the Contractor has already agreed to comply with the variations that fall within the ambit of the variation clause. As such, failure to comply with an instruction requiring a variation may amount to a breach of contract by the Contractor. This is subject to the caveat that the Contractor is not obliged to comply with any variation order which is outside the ambit of the variation clause.

    In order for a contractual variation instruction to be valid, it must:

    1. Be within the ambit of the variation clause and bear some relationship to the Works. As such, the Contract Administration must hinge on the Variation clause while giving such an instruction.
    2. Be additional to the original contractual obligation. With this, works that are part of the original scope cannot consist of a variation.
    3. Be issued by an authorized person. Variations have to be issued by the prescribed authority who is normally named in the Contract.
    4. Be issued in the prescribed manner within the Contract. As such, an instruction may be rendered null if it were issued without following the process which is set out in the Contract.

    How do you determine whether an instruction amounts to a Variation?

    Determination of whether work amounts to a change is a matter for construction in each contract as was the case in Williams v Fitzmaurice[3] and Sharpe v San Paulo Railway[4]. In order to decide whether a certain instruction amounts to a change, a benchmark is needed against which the change can be judged. This benchmark is established by reference to the original bargain or agreement between the parties. In the case of Chittick v Taylor[5], it was held that items provided for in the contract cannot be extra. It was also held that when a Contractor provides material of a better quality that that required under the Contract without express or implied instruction from the Contract Administrator, the Contractor is not entitled to charge the additional cost. However, if the Contractor carries out work or supplies materials that are not called for under the contract basing on an instruction from the Contract Administrator, the Contractor is entitled to additional costs.

    It is also important to remember that on a design and build contract where the Contractor is in charge of design, if there is a need to amend the design, the Contractor will be obliged to remedy that at no additional cost to the Employer as was the case in Davy Offshore v Emerald Field Contracting[6].

    Conclusion

    Variations are one of the leading causes of disputes on construction contracts. In order for a variation to be properly executed, there is a need to follow the due process that was set out in the Contract and also to correctly identify if indeed a change has been applied in those circumstances. Valuation of the variations has to be properly done and where applicable an Extension of Time awarded in order for the Variations to be completed.

    [1] [1978] Q.B. 574.

    [2] [1966] 2 Q.B. 617.

    [3] [1858] 11 WLUK 131.

    [4] [1873] 4 WLUK 19.

    [5] [1954]

    [6] [1992] 3WLUK 69.

  • Appraisal of a Contractor’s Tortious Liability under civil jurisdictions: A case study of France.

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    Charles Gavamukulya, MCIArb,AICCP

    Following the outlook into common law on the appraisal of a Contractor’s tortious liability under the tort of negligence in the previous article which can be found here: https://blog.cg.co.ug/appraising-contractors-tortious-liability-under-the-tort-of-negligence/ ,it is important to contrast that with civil jurisdictions like France, Germany or Saudi Arabia among others.

    How different would the Contractors tortious liability be under a civil jurisdiction?

    In this article, while considering how the issue might have been differently addressed in a Civil Code Country, reference is made to the French Civil Code. The structure of French tort law is such that it does not spell out the different torts like negligence, trespass and nuisance but rather provides for them generally in Articles 1240 to 1245 of the Civil Code. There is no limitation on the type of wrong which may arise under these articles since they are drafted to be very wide.

    Article 1245-8 provides that the claimant must demonstrate the harm, the defect and the causal relationship between the defect and the harm. These constitute the three elements of the claimant’s burden of proof in order to prove liability. Therefore, there is no need for a duty of care as would have been required by common law. Additionally, there is no need of application of the neighbour principle under French law. The claimant needs to prove the defect and the damages that he is pursuing. The French Civil code does not show how this link between defect and harm should be assessed but it must be direct causal link between the harm and the defect.

    Based on this, using an example of an Employer on a building project that has suffered structural failure due to defects in construction and (or) design, the Employer could prove that the defect in the construction and (or)design of the Works caused failure of the structure and the Contractor would be liable under French law. Once the claimants (the Employers in this case) ably prove fault, damage and the causal link between the fault and the damage, they can win all their compensation.

    Article 1241 provides that an individual is responsible for harm caused not only by their actions but also by their failure to act or exercise due care. This provision allows one to be liable for one’s omissions which is a departure from common law where in Stovin v Wise[1] it was held that the law does not recognize a duty of care owed to the whole world to take positive action to prevent harm. In Caparo v Dickman[2] terms, imposing such a general duty would be unfair, unjust or unreasonable. Referring to the instant facts, a Contractor would be liable to an Employer for actions that led to structural failure. Additionally, a Contractor would be liable to an Employer due to their inaction or lack of care in ensuring that the structure that was handed over was not under designed and improperly constructed.

    Article 1242 provides that one is not only liable for the harm resulting from one’s actions but also for harm caused by the actions of those for whom they are responsible or by things under their care. From this, where a contractor has subcontractors on site, it can be considered that the Contractor is responsible for the Subcontractor’s actions. The Contractor would be open to multiple fronts of liability as a result depending on the different parties that are affected by the different subcontractor’s actions.

    Article 1244 provides that a building owner, referred to as the Employer in this article, is liable for the harm caused by its collapse when that resulted from a lack of maintenance or construction defect. This indicates that liability arises from lack of maintenance or construction defects even when the owner of the building is not responsible for the cause of the defects. This is a departure from common law where a Contractor would instead be liable under public nuisance.

    In conclusion, in addition to the liabilities of the respective parties already established under common law, French law imposes an additional liability to an Employer where the Employer would be liable to parties that suffer due to the defective building that it owns. The burden of proof required from the claimants differs from that under common law given that the claimants now must fulfil the burden of proof in Article 1245-8. Additionally, Contractors could be open to multiple fronts of liability due to actions of their subcontractors.

    [1] [1996] AC 923 (HL).

    [2] [1990] 2 A.C. 605.

  • Appraising Contractors’ tortious liability under the tort of negligence.

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    Charles Gavamukulya, MCIArb,AICCP

    Introduction

    In the recent consolidated cases of Paul and another v Royal Wolverhampton NHS Trust, Polmear and another v Royal Cornwall Hospitals NHS Trust and Purchase v Ahmed, the Supreme Court of the UK has held that a Contractor owes a duty of care to an Employer in relation to building defects-arising from design, construction or both. This type of duty is usually parallel to a contractual duty that the contractor will perform its works with due skill and care. The existence of this parallel duty of care may be vital in cases where limitation periods are concerned. As such, even when defects occur almost six years after the completion date which would ordinarily be statute barred under claims in contract in the UK and in Uganda, claims in tort can be brought forward. This was established in the case of Dutton v Bognor Regis UDC where claims that were previously time barred by limitation were allowed.

    However, it should be noted that claims in tort for negligence, negligent advice or negligent misrepresentation are open for some standard forms of contract, for instance the FIDIC forms of contract where Sub-clause 20.4 of the 1999 FIDIC forms of contract allows for disputes in connection with or arising out of the Contract or the execution of the Works. Ashville Investments v Elmer Contractors Ltd is authority for the proposition that a clause which covers disputes arising under the contract but also includes the words ‘in connection with’ should be given a wide interpretation and will cover related claims for rectification, negligent misstatement, and the like.

    The Negligence Equation

    For a successful claim in the tort of negligence, the claimant-often the Employer, must show: (1) that the Contractor owed them a duty of care; (2) that there was a breach of that duty; and (3) this breach resulted in recoverable damage. It is important for all these components of this negligence equation to be satisfied in order for such a claim to succeed.

    While considering the first limb of this negligence equation, we consider the leading case of Donoghue v Stevenson where it was held that a manufacturer of goods owed a duty of care to their final consumer. This case established the ‘neighbour principle’ which determines whether a duty of care is owed by the defendant in any given situation. In his obiter, Lord Atkin defined a neighbour in the law as a “person who is so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.” Consequently, the requirements of foreseeability and proximity set out in the neighbour principle form the basis of finding duty of care. The fundamental concept of the neighbour principle underwent reformulation in Caparo Industries v Dickman. In this case, there was introduction of the consideration of whether the existence of a duty would be fair, just and reasonable. With this, Caparo introduced a third requirement that extended beyond the two earlier criteria that were set by Donoghue.

    In the appraisal of negligence, it is important to examine both negligent actions and negligent advice. Appraising negligent advice has particular application on design and build projects. When determining the duty of care for negligent misstatements, reference is made to the case of Hedley Byrne v Heller where it was held that a duty of care could exist concerning a statement leading to pure economic loss, if the parties were in a ‘special relationship’. Such a special relationship arises, in part, when one party exercises skill and judgement and the other party acts in reliance of this skill and judgement.

    Given that the Contractor is a neighbor to the Employer, the Contractor often owes the Employer a duty of care for both negligent acts and negligent advice in some cases.

    Breach of Duty

    After confirming the existence of a duty of care, the next step in proving negligence involves demonstrating a breach of that duty. To ascertain breach of duty of care, it is necessary first to identify the standard of care and then determine if this standard was met in the given circumstances. The standard of care, as established in Blyth v Birmingham Waterworks, is that of the ‘reasonable man’. This is a legal abstraction which represents an average person who was further described by Greer LJ in Hall v Brooklands Auto-Racing Club as ‘a man on the Clapham omnibus.’

    However, if the defendant presents themselves as possessing specific professional skills, the applicable standard of care must be determined by comparing them with others in the same profession. In Bolam v Friern Hospital Management Committee, it was held that the ‘test is the standard of the ordinary skilled man exercising and professing to have that special skill. For the context of a Contractor on a project, the Contractor holds themselves out to the Employer as possessing particular professional skills to execute a design and build project or simply a build project and therefore this is the standard of care to which they must adhere.

    The legal burden to prove breach of duty is on the Employer in this case and this must be established on the balance of probabilities. The Employer can rely on the maxim of res ipsa loquitur. With this, in the absence of convincing evidence to the contrary, the court will give the Employer the benefit of doubt by inferring negligence from what is known. This was shown in Scott v London & St. Katherine Docks where it was held that a claimant will be assisted by res ipsa loquitur if the thing causing damage is under the control of the defendant or someone for whose negligence the defendant is responsible, and that the accident is such as would not normally occur without negligence.

    When examining a Contractor’s liability to the Employer, further reference is made to Gee v Metropolitan Railway Co where the train doors were presumed to have been the sole responsibility of the train company and therefore it was liable. Where structural failure/defects are due to design and construction solely done by Contractor, and without any evidence to the contrary, the Employer can be assisted by the maxim of res ipsa loquitur. As such, where the standard of care is not reached in the respective duty stations, it can be said that there is a breach of duty.

    Did the breach of Duty result in loss?

    After establishing that there was breach of duty, the next key question would be whether or not the breach of duty resulted in loss. The general test used by the courts to determine the factual causation is the “but for” test, where the key question is whether, but for the defendant’s breach of duty, the loss or damage would have occurred. For instance, Lord Denning stated in Cork v Kirby Maclean Ltd that “…if the damage would not have happened but for a particular fault, then that fault is the cause of the damage; if it would have happened just the same, fault or no fault, the fault is not the cause of the damage.”

    The two types of damage under consideration are physical damage and pure economic loss. In Spartan Steel v Martin, it was held that financial loss not directly stemming from physical damage is too remote to be compensable in negligence. As such, the law of negligence concerns actual damage, usually in the form of physical injury to persons or property.

    The courts have adopted different approaches to pure economic loss resulting from a negligent action and pure economic loss caused by negligent advice. This can be shown in Murphy v Brentwood where it was held that the loss described as physical damage due to the negligent act was in fact pure economic loss and was not recoverable. As such, pure economic loss arising from a negligent act is not recoverable. As such, Employers cannot claim for pure economic loss resulting from Contractor’s negligent acts.

    In the case of Henderson v Merrett, it was held that when one party undertakes to provide professional or quasi- professional services for another, this commitment, if relied upon by the person on whose behalf these services are performed, may be adequate to establish a duty of care in tort, irrespective of the contractual relationship between the parties. According to Henderson, the existence of contractual relationships between the parties did not exclude the possibility of a duty of care in negligence. Moreover, the special relationship extended beyond advice to also include the provision of services.

    In Hedley Byrne, it was held that a duty of care could exist concerning a statement leading to pure economic loss if the parties were in a special relationship such as that one discussed above in Henderson. In contrast to pure economic loss arising from a negligent act, pure economic loss arising from negligent advice is recoverable. Consider a design and build project where the Contractor recommends the use of a wall of contiguous piles which is later discovered to have been under-designed for their length and load bearing requirements. It can be considered that the Contractor provided negligent advice to the Employer thereby entitling the Employer to claim for pure economic loss resulting from this negligent advice.

    Damage suffered.

    The final limb of the negligence equation involves determining the extent of the damage suffered by the claimant which should be attributable to the defendant. In the Wagon Mound (No.1) case, it was held that the appropriate test for remoteness is reasonable foreseeability of the kind or type of damage suffered by the claimant. Applying the Wagon Mound test in Hughes v Lord Advocate, it was held that it is only the type of damage which must be reasonably foreseeable and not the manner in which it occurs or its extent.  Where there is physical damage due to a breach of duty of care and it is reasonably foreseeable that the Employer would suffer this loss as a result of the Contractor’s negligence, this limb which is essential in proving negligence is satisfied.

    Conclusion

    In conclusion, Contractors can be liable to Employers for negligent acts and negligent advice. As such, Contractors have to be aware of these liabilities which may not necessarily be “under the contract” and with which claims can be forwarded beyond the limitation period.

  • CONSIDERATIONS REGARDING DELAY ANALYSIS ARISING FROM THOMAS BARNES & SONS PLC V BLACKBURN WITH DARWEN BOROUGH COUNCIL

    ·

    Charles Gavamukulya, MCIArb,AICCP

    Delay Analysis is a contentious issue in claims arising out of construction projects. Often time, there is an argument over the correct or more correct analysis method for delay analysis. The Society of Construction Law Delay and Disruption Protocol (‘SCL Protocol’) sets out the following differing methods of delay analysis that can be used to analyze the impact of a delay event to the critical path of a construction program:

    Delay Analysis Methods as set out in The Society of Construction Law Delay and Disruption Protocol

    On 17 October 2022, the High Court handed down its decision in Thomas Barnes & Sons plc v Blackburn with Darwen Borough Council [2022] EWHC 2598 (TCC), which related to the construction of a bus station in Blackburn.

    The claimant, Thomas Barnes & Sons plc (in administration) (‘Thomas Barnes’) was the contractor employed by a local Council, with the project suffering significant costs increases and delay.  The Council purported to terminate Thomas Barnes’ contract and engage another contractor to complete the works.  Soon after, Thomas Barnes went into administration, with the administrators subsequently seeking approximately £1.7 million in damages.  This included an entitlement to prolongation and delay-related damages, which led the Judge to provide some discussion on the differing forms of expert delay analysis relied on by the parties.

    In Thomas Barnes, the Judge noted that it would be wrong to place too much importance as to whether a particular method of delay analysis had been strictly followed, stating that:

    ‘The SCL Protocol itself discourages such an approach.  It states in the introduction that:

    (a) its objective is to provide useful guidance.

    (b) it is not intended to be a contract document nor to be a statement of the law;

    (c) its aim is to be consistent with good practice rather than to be a benchmark of best practice; and

    (d) its recommendations should be applied with common sense.  It states under paragraph 11.2 that “irrespective of which method of delay analysis is deployed, there is an overriding objective of ensuring that the conclusions derived from that analysis are sound from a commonsense perspective”.

    Thus, it would be wrong to proceed on the basis that, because the SCL Protocol identifies six commonly used methods of delay analysis, an expert is only allowed to choose one such method and any deviation from that stated approach renders their opinion fundamentally unreliable.  It must be borne in mind that the common objective of each is to enable the assessment of the impact of any delay to practical completion caused by particular items on the critical path to completion.  However, I do accept that if an expert selects a method which is manifestly inappropriate for the particular case or deviates materially from the method which he has said he is following, without providing any, or any proper, explanation, that can be a material consideration in deciding how much weight to place on the opinions expressed by the expert.’

    Especially when part of the claim centres around an extension of time, expert delay analysis is commonly relied on in both adjudication or litigation to prove or disprove a claim.  In light of the Judge’s comments in Thomas Barnes, it is not a requirement for a particular method to be strictly followed.  However, delay experts should be conscious of the impact that a deviation from the stated method used or the use of an inappropriate method will have on the weight of their evidence without a reasonable explanation

    Other observations from Thomas Barnes

    Traditional approaches to the main cause of delay have been the ‘dominant cause’ approach, focusing on the main cause of the delay, or alternatively, the ‘first in time’ approach, focusing on the event that occurs first. However, the Judge found that concurrent delays had occurred, even though there appeared to be a dominant delay, separate to one that occurred first. In this instance, the Judge made a finding that ‘depending upon the precise wording of the contract a contractor is probably entitled to an extension of time if the event relied upon was an effective cause of delay even if there was another concurrent cause of the same delay in respect of which the contractor was contractually responsible’. However, the Judge noted that despite being entitled to an extension of time for a dominant cause delay, the Contractor would not be entitled to costs for loss and expense where a separate concurrent delay occurred for which the contractor was contractually responsible.

  • Price escalation in construction contracts under FIDIC 

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    Charles Gavamukulya, MCIArb,AICCP

    Introduction

    As the cost of materials, transportation and labor rise globally, construction projects are feeling the bite of evaporating margins, constrained cashflow, and extended lead times. Moving into a post-COVID operational environment, after a long (and continuing) period of reconciliation regarding COVID costs and delays, price escalation is becoming an urgent issue for global construction.

    On top of COVID-driven inflation and delays, the commercial fallout of the conflict in Ukraine forced global supply chains and financing arrangements to adapt almost overnight, with an immediate impact on price-influencing fundamentals such as energy, iron/steel and other base metals. Unnervingly, a potentially similar economic shock could evolve from the increasingly tense international relations between China and Taiwan.

    In this context, contractors and subcontractors are not only looking for ways to manage cost increases under existing contracts, but also becoming aware that if their future contracts do not provide for the risk of price escalation in the coming years, it could lead to further problems.

    What is ‘price escalation’?

    Price escalation is sometimes known as ‘cost escalation’ or ‘material price escalation’. It refers to the sensitivity of construction contracts to the prices of materials and labour. In any fixed-price contract, the impact of rising costs in the supply chain will have a direct consequential impact on a contractor’s margin and cashflow. Under variable-price contracts, these are passed on to the Employer, with similar effects.

    It is unusual to see variable pricing in major international projects, in part because such projects are typically dependent on financing from institutions. Often these institutions mandate the contractual arrangements on projects they finance but, even if not the case, project finance is generally based on detailed risk assessments that view open-ended, uncertain cost structures unfavourably.

    New ‘target cost’ contracts are hybridising these contract models to an extent, essentially by providing a cost-reimbursable structure subject to a cap. Although these arrangements are enjoying some success in smaller domestic projects, it remains to be seen whether such arrangements will be used internationally.

    As a result, all contract models are impacted by price escalation, but it is often contractors that bear the brunt.

    Types of contracts  

    The type of contract usually informs as to which party takes the risk of price fluctuations. In reimbursable or cost-plus contracts, the employer takes the risk. The contractor is reimbursed the actual cost, plus allowances for overheads and profit. If the contractor’s actual costs increase, the contract price will increase also. 

    In remeasurement contracts and fixed price/lump sum contracts the contractor usually takes the risk unless there is a mechanism for cost adjustment.  In remeasurement contracts (such as the FIDIC Red Book – For Building and Engineering Works Designed by the Employer) the contract price is based on approximate quantities and a schedule of rates and prices. But, if the rates and prices can be adjusted where price fluctuations occur, the contract price is recalculated using the new rates and prices and the final agreed quantities. The actual work done is remeasured when the works are completed. In fixed price/lump sum contracts (such as the FIDIC Yellow Book – Plant and Design Build) the contractor provides an overall figure, ‘a lump sum’, for all the works that are agreed to be carried out under the contract. But, if the amounts due to the contractor can be adjusted where price fluctuations occur, the contract price is recalculated

    Escalation clauses 

    A mechanism for cost adjustment is, potentially, a more reliable way to limit the contractor’s risk.  In the FIDIC 1999 editions the escalation clause is at Sub-Clause 13.8, and in the FIDIC 2017 editions it is at Sub-Clause 13.7. Sometimes the escalation clause is deleted or modified. Sub-Clause 13.8 of the FIDIC 1999 editions (or Subclause 13.7 in the FIDIC 2017 editions) is an ‘opt-in’ clause. It applies only if:

    1. Under the FIDIC Red and Yellow Books 1999 – a table of adjustment data is included in the Appendix to Tender.

    2. Under the FIDIC Silver Book 1999 – provided for in the Particular Conditions.

    3. Under the FIDIC 2017 forms – a Schedule(s) of cost indexation is included in the contract.

    The table of adjustment data or Schedule(s) is a complete statement of the adjustments to be made to the cost of labor, goods and other inputs to the Works (for example, fuel). Any other rises or falls in the Costs are deemed to be included within the Accepted Contract Amount. No adjustment is applied to work valued on the basis of Cost or current prices. Where it applies:

    1. Under the FIDIC 1999 editions – the amounts payable to the contractor are adjusted for both rises and falls ‘in the cost of labor, goods and other inputs to the Works’ by adding or deducting amounts calculated in accordance with a prescribed formula (in the FIDIC Red and Yellow Books) or as set out in the Particular Conditions (in the FIDIC Silver Book).  

    2. Under the FIDIC 2017 editions – the amounts payable to the contractor are adjusted for both rises and falls ‘in the cost of labor, Goods and other inputs to the Works by adding or deducting amounts calculated in accordance with the Schedule(s).  

    In the FIDIC Red and Yellow Books 1999 a formula is set out, but this may be amended as the parties choose. The wording states: ‘The formulae shall be of the following general type’. The formula is as follows: 

    The n in the above formula refers to a defined period. This is usually the relevant payment period and so will typically be the month of the payment application. The o refers to the base date. Therefore, it applies the difference between the base index and the current index to the adjustable price element, bringing the contract price up in line with the change in the index (or down, if de-escalation is permitted).

    It is recognised that the formula set out above to calculate the adjustment multiplier (Pn), which is to be applied to the estimated contract value, is crude, but it is a fast and reasonably credible way of calculating and reimbursing fluctuations in costs.  The formula relies on:

    1.A fixed element (a), representing the nonadjustable portion in contractual payments, which is fixed at the time of Contract. FIDIC suggests 10% in the Appendix to Tender or Guidance.  

    2.The weighting of the resources (b) (c) (d), which is determined at the time of contract. For example, a road project might be 20/40/40 for labour, equipment and materials.  

    3. Cost indices for the current ‘now’ value (n) and the original value (o) for each of, for example, labor (L), equipment (E) and materials (M), which need to be updated frequently (preferably monthly rather than quarterly or annually, but that will depend upon the cost indices chosen).

    The mathematics involved are, therefore, relatively straightforward but the output of any formula is naturally dependent on the inputs which, although mathematical, are contractually defined. Consequently, both contractual and commercial review are essential.

    The FIDIC Silver Book 1999 and the FIDIC Gold Book 2008 do not set out a formula. The FIDIC Silver Book Guidance suggests that the wording for provisions based on the cost indices in the FIDIC Yellow Book be considered. The FIDIC 2017 editions do not set out a formula either. The Guidance states: ‘It is recommended that the Employer be advised by a professional with experience in construction costs and the inflationary effect on construction costs when preparing the contents of the Schedule(s) of cost indexation’

    What needs to be considered?

    Careful attention should be given to define key variables, such as:

    • The base date and/or start date
    • Triggers for applying the clause
    • Any caps on price increases
    • Any non-adjustable portion
    • Cost elements and weightings
    • The relevant reference indices
    • Whether different formulae are required for different costs
    • Currency variables, if needed
    • Any provisions for price de-escalation

    The price adjustment clause can directly define the commercial success of the project for the contractor in an inflationary environment. As a prime example, triggers for price adjustment often require a certain degree of increase before the clause is engaged, while a cap may prevent any cost above a certain degree of increase being passed on. This effectively creates a window of defined margin on certain core costs, and allocates an open-ended risk above the cap. 

    Conclusion

    In the current macroeconomic environment, contractors are increasingly concerned about how to handle recent cost increases, which are unprecedented in the modern era. For contracts without a price escalation clause, a detailed contract review may provide avenues to recover certain costs under other headings such as change of law, force majeure, or the variation procedures. Local law may also allow recovery, depending on the jurisdiction.

    In severe circumstances, commercial negotiation may become a necessity if the contractor is in risk of default, or if there are other risks to the project. Negotiated arrangements seen in practice include new financing, allowing some of the contractor’s proven costs to be deducted from liquidated delay damages, or new lump-sum contracts for work packages which are then removed from the main contract. All of these options are fraught with legal and commercial dangers and can bring further contentious issues if not handled carefully.

    With a view to the future, including price escalation clauses in contracts may seem disadvantageous to employers, as they are accepting the risk of increasing costs. However, price escalation clauses allow contractors to bid more accurately and competitively, resulting in lower bid prices for the employer. It also opens the door to price de-escalation, which would favour the employer if deflationary trends prevail during the project.

    Ultimately the most immediate benefit is that the project will not be endangered by contractor defaults, or contractor delays related to procurement and delivery issues arising from cost increases. In this regard, it should be borne in mind that the contractor’s delay is usually subject to liquidated delay damages, whereas the employer’s delay liability to other contractors is usually, at least theoretically, unlimited.

    Although it may seem like a risk for employers to accept price escalation clauses, the current and continuing uncertainty in global supply chains may cause havoc on future projects if not appropriately provided for in the contract. In this respect, the certainty provided by price escalation clauses has significant value in itself.

  • The Contract: the foundation of Construction Projects

    ·

    Charles Gavamukulya, MCIArb,AICCP

    Introduction

    Construction projects have peculiar characteristics unlike other commercial transactions and these characteristics result in construction projects being particularly sensitive to a large spectrum of risks. The prevailing influencing factor is the parties themselves. International construction projects for example, involve parties from differing cultural and legal backgrounds who bring with them their own ideas of not only how the works themselves should be performed, but also the way in which the parties are to structure and manage their contracting and project management. This is particularly influential when parties from differing jurisdictions enter into joint venture arrangements for the performance of works. The Uganda National Roads Authority (UNRA) project status report of March 2021, for example, showed that 14 out of 31 (45%) of the Upgrading Road Projects were being executed with joint ventures between consultancy companies from differing jurisdictions. More joint venture arrangements are expected with the advent of oil drilling and processing and the push for more involvement of local companies in these undertakings. Key considerations have to be taken, therefore, to consider who will undertake the essential functions required to take the project from concept to completion, and how the project risk including the risk inherent in valuing and paying for the work, will be handled.

    Checking for concrete slump at Drainage Improvement Works Project in Kawempe, Kampala City by CG Engineering Consults Staff and a member of the Consultant’s team.

    Risk management in Construction projects

    Successful project execution dictates that this risk must be managed and that parties settle the issues associated with project risk through contract provisions. These provisions allocate the project risks between the parties and offer specific remedies in the event of breach of contract or the occurrence of specified events. It is in this light, that the modern construction contract has become a sophisticated instrument and one that begs a question about what an ideal construction contract is. Also, important to note is that a project delivery method and a contract type that mirrors the risk profile of the project are congruent with risk allocation strategy.

    Project Delivery methods

    One distinguishing factor between various project delivery methods is who will carry the design responsibility. This concerns the level of the contractor’s involvement during the design phase. The traditional project delivery method is the “design-bid-build” where design and construction are contracted separately. Here, the owner carries out the design and only enters into a construction contract subsequent to the completion of design. The contactor is then selected by a means of competitive tender that includes a fully detailed design. The successful bidder has the obligation to construct the work designed by the owner in accordance with the owner’s detailed specifications and drawings. The March 2021 UNRA Project progress report of the upgrading roads projects showed that over 10 projects are being delivered with this method for instance Civil Works for the Upgrading of Rwenkunye-Apac-Lira-Puranga Road. Alternatively, the owner may allocate the design function to the contractor. This is commonly referred to as the “design-build” where design and construction are combined in a single contract with a single contractor. The design is accomplished in accordance with the Employer’s requirements after the award of the contract, with the contractor given broad leeway to design the job in an efficient manner. Ideally, the contractor is told what is needed, not how to achieve the desired product. This contract places additional risk on the contractor but may also leave the Employer facing a higher contract price as a result. The March 2021 UNRA Project progress report of the Upgrading roads project showed that over 3 projects were being delivered with this method for example Package 3 and Package 5 of the Critical Oil Roads.

    Once the owner has determined the delivery method, the next focus is on the type of contract. The choice of type of contract is linked to the overall payment and pricing structure that will govern the transaction.

    Types of Contracts

    The three basic types of contracts that are most commonly encountered in construction are: fixed price/lumpsum, re-measurement (admeasurement) and cost-plus. Fixed-price contracts are contracts where the contractor is paid a pre-agreed sum of money when they have successfully performed all of his or her obligations under the contract. Payment is made in pre-determined stages and the contractor assumes the risk for both performance and price. Re-measurement contracts involve the contractor having a fixed price for each item of work in accordance with the owner’s estimated quantities. During contract execution, the work completed by the contractor is measured and the amount the contractor is paid is determined as a product of the measured quantities and the contractor’s price for each item. In this, the Employer assumes the risk for the quantity and the contractor assumes the risk for the pricing. Under a cost-plus contract, the owner retains the cost risk, and the contractor is paid his or her costs including overheads and profit. This is more flexible in that it does not require full information at the time of tender, but this flexibility comes at a huge price for the owner. Additionally, administration of these contracts comes at a greater cost because complete records of all time and materials spent by the contractor on the work must be maintained and must be verifiable.

    Contract documents

    Construction contracts must include principal documents that identify and allocate the project risk and describe the works. The principal documents in a construction contract include:

    · The conditions of contract, general and specific

    · Technical documentation

    · Schedules

    · Programmes

    · Bills of quantities

    The contract sets forth the basic terms under which the parties are doing business together for example price and payment terms, commencement date, completion date, description of scope of work, allocation of risks of loss, alternative dispute resolution and indemnification provisions. The general conditions are a set of rules that cover problems such as claims, disputes, sub-contracting, changes, time, warranties, insurance, remedies, and termination that routinely arise in construction contracts.

    Specifications provide even more detail as to the materials to be used, the performance requirements for aspects of the project and the method or techniques of construction to be employed. The specifications fill in the necessary information that is not evident from the drawings and includes materials and workmanship clauses, schedules to provide additional information and provisional sums if required, for instance the General Specifications for Roads and Bridge Works by the Ministry of Works and Transport used in the execution of Road and Bridge projects in Uganda.

    The Employer’s requirements, as explained by Nael Bunni, are the main source of information for the general obligations of the contractor and should be drafted in a balanced manner so as to effectively specify the Employer’s needs, while not limiting the contractor’s flexibility in design to meet those needs. This term is used by FIDIC to denote the document that defines the purpose, scope and design and technical criteria of the works in design-build contracts. In Uganda, these are normally issued by a Procurement and Disposal Entity for example UNRA at the tendering stage.

    The bill of quantities, as used in an admeasured contract, is a list of the materials and their estimated quantities against which the contractors provide their rates during the tender phase. The agreed prices are then used for the periodic valuation of the works that have been executed.

    Conclusion

    In conclusion, the ideal contract -the one that will be most cost effective- is one that assigns each risk to a party that is best equipped to manage and minimize the risk, recognizing the unique circumstances of the project. Therefore, it is important to undertake a comprehensive and systematic approach to identifying, assessing, and developing a risk mitigation strategy which can aid in drafting of proper construction contracts by construction parties and their representatives. It is also important to choose a project delivery system and a contract type that match the risk allocation and mitigation strategy. Drafting construction contracts, therefore, requires party representatives to be well conversant with the construction industry and the risks associated with it in order to avoid the danger that can arise from “copy and paste” of “construction contract templates”.