Civil Engineering Reference
In-Depth Information
on its own initiative?
It is surprising how often this question arises, typically when a contractor, working under
a JCT traditional contract, knows broadly what is required but does not have drawings or
specification which show the detail precisely. The contractor thinks it knows what to do and
carries on with the work to its own detail. Subsequently, the detail fails with serious conse-
quences.Itmightbeabadlyconstructedroofdetail,aninadequatestanchionbaseorperhaps
wrongly positioned heating pipes. Who is liable? Under SBC, IC and MW, the contractor
hasnoliabilityfordesign.EvenwhereICDandMWDareused,thecontractor'sliabilityfor
designisconfinedtothoseitemsclearlylistedinthecontractparticulars.Underatraditional
contract, the architect designs and the contractor constructs in accordance with the designs.
Provided that the contractor constructs exactly as drawn or specified, it is likely to have
little liability for the result unless the defect is so obvious that the contractor should have
warned the employer of the potential danger. However, the position changes if the contract-
or is not provided with sufficient information to enable it to construct the particular detail.
In such situations, it is for the contractor to ask the architect for the missing information. In
practice, a contractor may find itself in a situation where it is keen to make progress, but
there is no detail. If it pauses until the detail has been requested and eventually provided,
there may be a delay of which the contractor has to notify the architect and hope for an ex-
tension of time which is by no means certain. If the contractor, thinking it knows what is
required, presses on with the work, it places itself in a difficult situation.
There are two problems for the contractor. First, the architect, on seeing the solution
whichthecontractorhasadopted,mayinstructthecontractorthatitisnotinaccordancewith
the contract and must be removed. That would be strictly correct: The contractor's work
is not in accordance with the contract, because the contract documents do not show what
the contractor has done; in fact they show nothing regarding the detail in question. Second,
even if the architect does not notice what has been done, there may be a defect that causes
a problem - in the worst case, perhaps a collapse. The contractor cannot blame the archi-
tect, because the architect has not designed the detail which has been built. In such circum-
the contractor will probably be liable for the consequences of the defective design provided
that they were within the contemplation of the parties at the date the contract was executed
as likely to occur. There are probably many such instances where the contractor unthink-
ingly assumes design responsibility, but where there are no untoward consequences because
the contractor has produced a satisfactory solution. However, the author recently heard of
a contractor which became responsible for an entire defective heating system in a building.
