Philip Harris, Partner and Construction Lawyer with Wright Hassall explains builder's responsibilities in building process.
Transcript
Please note, this transcript has been automatically generated, so may contain inaccuracies.
Hello, I'm Philip Harris, I'm a partner in the construction department at Wright Hassall. And this is the first of our law bites takeaways sessions. And in this session, I'm going to be looking at the responsibility of the builder for the building process. Now saying is buildability is the province of the builder. And this means that the contractor is responsible for the building process is always responsible for the design and the execution of temporary works, including stretching, propping and scaffolding.
So generally, it's no defence to the contractor that he could not build what he's agreed to build, where he's agreed to build it, the tender will carry two challenges, the technological challenge, which is yes, I can build this, and the financial challenge, which is, yes, I can build it for the agreed price.
Generally, there's no implication that completion of the work to the architects or engineers design is feasible or practical, or even possible. So the contractor has to do everything that's necessary to complete the job without any additional payments. So the architect the engineers and saying, I've given you this to do, you can definitely do it, it will be all rights.
Unless the contractor I'm sorry, unless the contract specifically says otherwise, a construction professional cannot commits the employer to a change the building contract or a change to the works. So an instruction given by an architect to help out a contract, by ordering extra work would not bind the employer to make an additional payments, if the work would have been necessary to do the job in the first place.
Now, the law makes it very clear distinction between what it calls the province of the architect and the engineer on the one hand, and the province of the builder, on the other hand, and this was brought out by a leading case of Clayton against Boardman as long ago as 1962. And I'm going to just read you a passage from that case, so bear with me.
The judge says, the builder as employer of his workman has responsibility at common law to provide a safe system of work, so that everything is a safe for the workman as it reasonably can be. The responsibility of the builder should not be overlaid or confused by any doubts as to his province begins and some of the person's province and the architect on the other hand is engaged as agent for the owner. And his function is to make sure that when in the end, when the work has been completed, the owner will have a building properly constructed in accordance with the contract.
And he goes on.
The architect does not undertake to advise the builder as to what safety precautions should be taken. Or in particular how he should carry out his construction operations is the function and the rights of the builder to carry out his own building operations as he thinks.
It might be suggested that the fault of the architect was in not advising the builder as to how the work required by the specifications should be executed. If he had done so, the architect would have been stepping out of his own province and into the province of the builder. It's not right to require anyone to do that.
And then the judge went on to confirm that it wasn't for the architect to warn the builders work when how the work should be done or that there was some risk involved.
So since Clayton and Woodman in 1962, we've had a whole series of health and safety regulations, we've now got the CDM regulations 2015 where most textbooks recognise that those regulations which impose health and safety obligations on both the employer and the contractor. Don't change the common law position in Clayton and wood.
So going back to this responsibility for the building process, it may be, for example, that a plumber has agreed to put a boiler in a corner of a basement. But he's not measured things properly. So when he gets to site, the space restrictions prevents him doing it, he can get the boiler in, but he can't get a man in behind the boiler to put it through the wall. He's got no authority to knock the walls down. So he says this is ridiculous, I can't do the job. And there are cases which are very, very similar to that. And then just look buildability is your problem is not a defence, that you can't build it. And you're going to be liable for a significant breach of contract, and damages or financial compensation for that.
Generally speaking, everything that's necessary to be done is included in the contract price. So if a roofer said, Well, I'm going to patch a roof for 30,000 pounds, he gets on the roof. Lots of rotted.
belts as rotted timbers rotted, it costs him 90,000 pounds. Because he's agreed to do that job, generally speaking, he would have to bring it in for the original contract price. Now, very importantly, the employer doesn't promise the accuracy of the sites and soils information surveys provided by his professionals. He hands them over to the builder, and he says this is what I've got is for you to find out if it's right.
And that's a very important point for contractors to be aware of, that the employer isn't promising. It's for the contractor to find out whether these surveys arrived or not.
There is one case called back LBA ca lB Northampton, in which the quantity quantity surveyor for the employer sort of overstep the mark. And he said to the contractor, just assume that this is good Oxford clay.
And in doing so he had reversed the normal positions. So instead of saying you are to find out it said you are to assume, and in that situation, the contractor was off the hook.
Because the employer had told him to assume those conditions, but that's quite rare. Normally, it's for the builder to find out, always look at the contract to see where the risk lies in building contracts. It's very, very likely that the risk of the grounds and the site conditions, pre existing buildings will be on the contractor. in civil engineering contracts, it's much more likely that there'll be a clause that says you are liable for what a reasonably experienced contractor could have foreseen but not beyond that.
If the risk does lie with a contractor, then any additional costs he incurs will be borne by him, he won't get an increase in the price, then you need to consider variation. So what happens if a variation is thrown in during the course of the job will generally speaking, if this isn't a significant change in the standards, the kind of work that needs to be done or the conditions under which it needs to be done, then there won't be any entitlement to any extra payment other than the for the significant change in quantities that the variation might bring about. But if that variation does bring with it, a change in risk that the contractor couldn't have foreseen changes the character and the risk and the contract. So we'll get paid more for that.
Okay, back to this how of the building process. So we've got a builder is digging a ditch by a wall, he gets it wrong, it isn't straight or proper properly, the wall kicks out at the foundation as the wall falls down. He won't be entitled to an instruction, the contractor won't be entitled to an instruction to sort that mess out. Similarly, digging alongside a canal, he uses diggers that are too heavy the canal will breach is it floods the site? Generally he won't be entitled to an instruction to sort that problem out. You can ask but there is no obligation on the architect or engineer to give that instruction.
If an engineer or an architect sees the contractor doing something which he thinks is inherently dangerous, then he has to do a balancing act. He has to balance the advantage to the employer of trying to sort it out against the possible disadvantage to the employer. So if the contract could prove that what he was doing was right, and it was cheaper than the employer would be exposed to a higher cost if the architect insisted on a more expensive solution. So he has a balancing act to do between what's beneficial to the employer, but he's always doing things in the employees interest.
Not in the contracted interest. Now the Bible on construction contracts Hudson's building an engineering contracts I'm working from the 13th edition here that says, There are about four situations where it might be reasonable for an engineer or architect to intervene. The first is where the contract is method is contrary to what's been specified. So it's a clear breach.
The second is where the works will imperil the quality of the permanent work. So because he's responsible for permanent work, the steps in the third is where the works are unsafe, and there could be an accident, and that would delay the works hampering the employer getting his income stream from a building. And the fourth is very similar to assist the contractor when it's in the employer's interest to get a speedy conclusion.
In terms of workmanship, the implied obligation at common law is to build in a good, workman like manner, so carefully and skillfully. And that equates to the statutory position on sale of goods, of satisfactory quality under the sale of goods act 1979. So this good and workmanlike manner that equates to satisfactory quality, where the contract is silent on the choice of material, let's say the mix of mortar is left to the contractor, and the contractor makes that choice himself. And design is choice. So he's taking on a design responsibility, and that be reliance on him for that. So then there would be a higher obligation of suitability equivalent to suitability in relation to the sale of goods. And the final thing I want to say, is, a contractor does have a duty to warn, if he's given something to do, which is inherently dangerous, or could cause the employer financial difficulties, then he does have a duty to warn of that. So one of the leading cases, the contractor was told to knock out too many rules, he should have known that some of those rules were load bearing. And the judge said, you have a duty to warn any competent contractor would have known that you were knocking out too many balls, this was dangerous. So their level of responsibility is not going to be 100%. So if you've been given a dodgy specification, you might have say, 30% responsibility for not warning correctly. And then the rest of the responsibility, the larger part would fall on the design team and the construction professionals, you do have a duty to warn. And it's important to be aware of that. And then we're just going to post that as a slide the details of the case of Clayton and Whitman, this big case which I mentioned, which talks about the provenance of the architect engineer against the province of the builder. And that's it and I hope you found some points in this useful and you can take them away and apply them in your normal working life. Thanks very much for listening, everybody.
