POOL & SPA INDUSTRY
The Importance of ‘Buildability’
Michael Hiscock of commercial law firm Wright Hassall takes a closer look at the role and responsibilities of the contractor
I
t is important to realise that when a contractor quotes for a job, he is accepting the technological challenge that goes with it.
The contractor is saying that he can do that particular job and that he can deliver the end product on that particular site in that particular location.
It follows from this that the defence of ‘non-buildability’ is not a runner. The contractor cannot simply say, “I tried but it was impossible”.
A contractor could, of course, include a special term in the contract saying that he does not promise that the job can be done and that he relies on somebody else, such as a professional designer.
However subject to this, he promises that he can do the job.
Buildability is not to be confused with the separate issue of ‘frustration’ or impossibility of performance, where subsequent events conspire to make the original scheme impossible (such as an indefinite stop on work due to a war or a local authority or government order).
This responsibility for buildability goes hand in hand with another duty of the contractor – the duty to warn.
The contractor is responsible for the ‘how’ of the construction process. This applies equally to finishing trades such as decorators. If there is a problem with the feasibility of the works, then the contractor should warn of this. In one famous case, a contractor was asked to knock out a number of walls. He was given a drawing which showed load bearing and non-load bearing walls. He knocked out the walls which were shown as non-load bearing and the building became structurally unsafe. The judge concluded that any competent builder should have known that the drawing was incorrect and warned that what was being asked to do was unsafe. The contractor is responsible for the temporary works such as scaffolding and all enabling works which lead to the permanent finished result. These works are his ‘province’. Whereas the ‘province’ of architects and engineers and other professional designers is normally the design of the permanent works.
www.swimmingpoolnews.co.uk
So generally speaking, the contractor does not have a defence that the architect or other designer did not warn or tell him how to go about his works.
The contractor also does not have a defence that the architect or any of the client’s agents did not detect a defect at an early stage and save him money by requiring him to put it right early on.
The good news is that the contractor generally does have a defence that he complied with the specification provided or that he did what he was told to do. There is a general rule that if plans and specifications are provided to a contractor to work to and especially if the building owner employs an architect, then the contractor will not have to do more than carry out the work according to the plans and specifications in a workmanlike manner and using proper materials. The owner will be unable to complain if the unsuitability of the final result is due solely to exact compliance with that design, subject to the duty to warn. However virtually no contract completely defines the work to be done. In the majority of cases there is an element of choice to be exercised by the builder over the use of materials and the nature of the work. For example, the contractor may be responsible for the mix of plaster or paint. If he is not told exactly what to do and he makes decisions for himself, then he takes on a design responsibility. It is often said that, “design is choice”.
Therefore the
argument, “I did exactly what you asked me to do” is not always the cast iron defence that it appears to be.
Contractors must be careful not to inter- meddle in the design process where they have not agreed to take on design under the contract. This is a trap that the very good contractor often falls into. In order to help, and relying on
his experience, he suggests that something could be done in a different and better way. If he doesn’t want to accept design responsibility, then he must get the client or his architect to give a clear instruction accepting responsibility for the revised method. Otherwise, by interfering in the design, the contractor will have taken on design responsibility.
So there are a number of specific lessons
here: • Contractors will accept responsibility for buildability unless they exclude it.
• Contractors are responsible for the temporary or enabling works such as scaffolding.
• Contractors may be able to rely upon the defence that they followed the specification precisely.
• This is subject to their having a duty to warn that what they are being asked to do is not practical.
• “Design is choice”; so if you choose what to do where the contract is silent, or if you suggest better ways of doing things, try to get a clear instruction accepting your choice and agreeing to accept responsibility for it.
Michael Hiscock is Senior Associate in the Construction and Engineering Department at Wright Hassall and he can be contacted by phone on 01926 880739, or via email at
michael.hiscock@wrighthassall.co.uk
SPN August 2015 41
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68 |
Page 69 |
Page 70 |
Page 71 |
Page 72 |
Page 73 |
Page 74 |
Page 75 |
Page 76 |
Page 77 |
Page 78 |
Page 79 |
Page 80 |
Page 81 |
Page 82 |
Page 83 |
Page 84 |
Page 85 |
Page 86 |
Page 87 |
Page 88