Contractual responsibility of Artless as Employer to
Contractual options available to Pig’sEar on issues related to contract document discrepancies and failure by Artless to appointcontract administrator. In the project, Artless failed to appoint an architector contract administrator which was contrary to their contractual obligations underthe JCT 2016 suite1.The three key duties of the architect2under JCT suite 2016 being (a) to provide drawings, instructions (b) qualitycontrol (supervision) and (c) certification. The appointment of architect is a primaryobligation of the Employer, however, if no one is appointed, the Employer isobliged to carry out their duties.
In absence of the architect, it will the responsibilityof Artless as Employer to provide drawings and supervise the constructionworks. In this case, Pig’s Ear must serve a written notice on Artless for its failureto make appointment and consider it as a fundamental breach of contract3which will entitle them to rescind the contract, sue for damages or apply for timeextension. In addition, the failure of Artless to provide Pig’sEar with relevant drawings prior to the foundation works, will constitute arelevant event by virtue of provisions under clause 2.12.1 of the JCT SBC/Q2016. The relevant event4will entitle the Contractor to claim for time extension and associated costs. Here,discrepancies and divergences discovered by Pig’s Ear with the project drawings5are likely to cause delays or additional cost on account of abortive orrectification to foundation works. Pig’s Ear must evaluate the impact of thechanges to the completed foundation works and serve notice to Artless uponreceipt of the drawings, stating the reasons why they consider late issue ofdrawings as relevant event and how they would be entitled to time and cost.
In summary, Pig’s Ear must submit a claim to Artlesswith full and detailed particulars, refer to clauses from JCT 2016 suite and requirements6under CDM 2015, establish cause and effect nexus to their entitlement on timeand cost. Under the JCT SBC/Q 2016, extensions of time are dealt under clause2.28 which uses the mechanism of the relevant event, when such an event occursthe Contractor is entitled to an extension of time and associated costs. Responsibilities of Pig’s Ear under theJCT 2016 suite in dealing with issues related to faulty design of roof trussesprovided by Artless. In construction, defects may arise if works were notcarried out in accordance with standard practice, specified design or usage of wrongmaterials, matters under the Contractor’s responsibility.
In other cases, thedesigner could be responsible for faulty design whereby the defect will not beattributable to the Contractor. On the contrary, if an absolute sense ofobligation is required under the contract, the Contractor will be obliged to doeverything necessary for the due and proper completion of the work. It wouldmean that the liability for defects in construction contracts would always fallunder the Contractor, who will be held responsible for defective works and willtherefore be held to be in breach of contract. In BrunswickConstruction Ltd Vs Nowlan and Others7,a Contractor is engaged to execute all the works under supervision byarchitect, the Engineer’s drawing were found to be defective, the courtsimplied a term in to the contract requiring the Contractor to warn of anydefects in design. It is noted that belief will be sufficient8to find a duty to warn the Employer. However, in another case, Plant Construction Vs Clive Adams Associates9,adequate propping of roof trusses led to roof collapse, where the Employer wasadvised independently by Engineer, it was held that the principal duty ofContractor was to carry out the works and not subject the design to criticalexamination. It is clear that under the JCT suite, that the Contractor is notrequired to subject the design to scrutiny or assume responsibility forverifying the accuracy of the design. However, in some cases, the courts haveimplied a term into building contracts requiring the Contractor to warn ofdesign issues based on examination of drawings or the Contractor’s experience.
The rationale here is that, if a Contractor, on the basis of experience, takesthe view that some aspect of a design is unworkable, the Contractor10should not proceed to execute the design. The nature of warning will depend oncircumstances, the warning must be overwhelmingly and plainly effective11. Here, Artless not having appointed an architect, thecourts may apply an implied obligation on Pig’s Ear to warn Artless of defectsto the roof truss design. Pig’s Ear ought to have written to Artless advising onthe hazards of the roof truss design and document the advice, where roof truss couldlead to unsafe conditions and danger to life. However, Pig’s Ear did not adviseArtless and chose to build the roof truss. Having discovered the design defectlater, it is only fair for Pig’s Ear to rectify the roof truss as required,cost with any additional time would be on Artless.
Contractual options available to Artlessunder the JCT 2016 suite in dealing with Pig’s Ear failure to install disabledramp in conformity with the contract documentation.1 Clause 3.5.1 of JCTSBC/Q 2016.2 RIBA’s standard formof agreement for the appointment of an architect (SFA).
3 London Borough of Merton v.Stanley Hugh Leach Ltd. (1985) 32 B.L.
R. 51.4 Trollope & Colls Ltd. v. North West MetropolitanRegional Hospital Board 1973 2 All E.
R. 260 and Peak Construction (Liverpool)Ltd. v.
McKinney Foundations Ltd. (1970) 1 B.L.R. 111.
5 Items listed in the Information Release Schedule (IRS) 66 or simplysupply of contract drawings.6 The CDM 2015 imposesgeneral duties on parties to appoint professionals and provide information.7 (1974) 21 BLR 278 Victoria University ofManchester v Wilson (1984) 9 2000 BLR 13710 Equitable Debenture Assets Corporation Ltd. v. WilliamMoss Group Ltd.
and Others (1993) 2 Con L.R. 1; (1984) 1 Const. L.J. 13111 Six Continents Retail Ltd vCarford Catering Ltd (2003) EWCA Civ 1790
