Civil Engineering Reference
In-Depth Information
The area of global claims has been reviewed in
John Doyle Construction Ltd
and
guidance produced for the first time by a Scottish court. In delivering the court's opin-
ion Lord Drummond Young indicated that if a contractor can prove that all the events
on which he relies are the responsibility of the employer, then there is no need to iden-
tify any causal link between the individual events and particular items of direct loss
and expense. If, however, an event for which the employer is not responsible plays
a significant part in the causation of the loss and expense, then the claim will fail
unlessitispossibletoseparateouttheefectoftheeventforwhichtheemployerisnot
responsible. The court considered, however, that this was subject to three mitigating
considerations as follows:
In the first place, it may be possible to identify a causal link between particular
eventsforwhichtheemployerisresponsibleandindividualitemsofloss
In the
second place, the question of causation must be treated by the application of com-
mon sense to logical principles of causation
…
In this connection, it is frequently
possible to say that an item of loss has been caused by a particular event notwith-
standing that other events played a part in its occurrence. In such cases, if an event
oreventsforwhichtheemployerisresponsiblecanbedescribedasthedominant
cause of an item of loss, that will be sufficient to establish liability, notwithstanding
the existence of other causes that are to some degree at least concurrent
…
In the
thirdplace,evenifitcannotbesaidthateventsforwhichtheemployerisrespon-
sible are the dominant cause of the loss, it may be possible to apportion the loss
between the causes for which the employer is responsible and other causes. In such
casesitisobviouslynecessarythattheeventoreventsforwhichtheemployeris
responsible should be a material cause of the loss. Provided that condition is met,
however, we are of the opinion that apportionment of loss between the different
causes is possible in an appropriate case.
…
Although
John Doyle Construction Ltd
provides useful guidance in relation to global
claims, it should be borne in mind that it does not provide
carte blanche
to use a global
claimandthatevidenceofthecausallinkswillstillbeofcrucialimportanceinlossand
expense claims. he issue for the court was whether a global claim fell to be rejected at
the stage of legal debate and the court's decision was simply that the claim should be
allowed to proceed to a full hearing on the evidence. If, however, evidence could not
be produced to satisfy any of the three principles quoted above, then the claim would
still fail in its entirety. Similarly if evidence did satisfy any of the three principles, this
may still result in only a small proportion of the claim succeeding with the remainder
of the claim failing. Accordingly a contractor should still endeavour where possible to
prove a causal link between the relevant events and the items of loss and expense. A
failure to keep satisfactory records will not be a legitimate excuse for failing to do so.
It should be noted that there is no direct connection between the loss and expense
provisions in clauses 4.23-4.26 of the SBC (clauses 4.20-4.23 of the SBC/DB) and the
provisions dealing with extension of time to be found in clauses 2.26-2.29 (clauses
2.23-2.26oftheSBC/DB).hetwosetsofclauseshavedistinctandseparatepurposes.
Support for this proposition can be found in
MethodistHomesHousingAssociationLtd
v.
Scott & McIntosh
(1997).
