Civil Engineering Reference
In-Depth Information
SBC and DB clause 3.2 require the contractor to have a person-in-charge on site 'at all
times'. IC, ICD, MW and MWD clause 3.2 require the person-in-charge to be on the site 'at
all reasonable times'. The phrase 'at all times' is not to be taken literally, and it is sugges-
ted that under SBC and DB the contractor's obligation amounts to ensuring that the person-
in-charge is on site for the whole of the time that any activity is being carried out, even if
that is simply off-loading materials. The JCT draftsman's decision to use different wording
for the Intermediate and Minor Works contracts clearly suggests a somewhat lesser duty un-
der those contracts. What is reasonable will depend on all the circumstances. Generally, it
is likely that the person-in-charge must be on site whenever the Works are in progress, al-
though there may be some instances, where the Works are small or carried out in small par-
cels over a long period, which do not warrant that the person-in-charge is constantly on the
site.Itmaybesufficienttovisitthesiteonaregularbasisprovidedthatthereisaresponsible
operative available. On small projects, it is common to have a working foreman and for the
identity of the foreman to change as the work progresses to reflect the progression in trades.
Therefore, the first thing is to establish whether the particular contract terms require the
person-in-charge to be on site. The second thing is to check how long the site has been left
without supervision. It may be that the person-in-charge has simply left site on an urgent
matter for a few minutes and will shortly return. It will be serious, however, if the archi-
tect arrives on site and finds that the person-in-charge has been away all morning. If the
person-in-chargeisawayfromthesiteduringthetimethatworkisinprogress,itiscertainly
a breach of contract under SBC and DB and possibly so, depending on circumstances, un-
der IC, ICD, MW and MWD. The contract does not include any direct sanction for such a
breach, and if the project simply continued despite the absence of the person-in-charge, the
employer would be left to claim whatever damages he or she had suffered as a result of the
breach. That would generally amount to the cost of correcting any defects in the work. If
there were no defects despite the absence of the person-in-charge, it is difficult to see what
damage the employer could be said to have suffered. The employer would always have the
concernthatduringsuchabsencesomeessentialwork,nowcoveredup,hadbeenbadlydone
or even omitted, but suspicion without evidence would not give rise to damages, and it is a
common experience that defects occur even when a person-in-charge is constantly on site.
Under SBC clause 3.15, DB clause 3.10 and IC and ICD clause 3.12, there is power for
the architect (the employer under DB) to issue instructions postponing any work, and the
power is probably implied in MW and MWD clause 3.4. Usually, when the power is exer-
cised, it almost automatically entitles the contractor to an extension of time and appropriate
loss and/or expense. The position under MW and MWD is less clear so far as loss and/or
