Construction Law: Variation, Oral Instructions, and Negligence in a Building Project

This assignment delves into the legal complexities of a construction project, focusing on the concepts of variation, oral instructions, and negligence. It analyzes a scenario where a sub-contractor (C) is instructed to use faulty concrete and fill gaps with resin, raising concerns about potential future damage. The assignment explores the legal implications of variations, the enforceability of oral instructions, and the potential liability of C for following such instructions. It examines relevant laws, including Contract Law, Employment Law, and Tort of Negligence, to provide a comprehensive legal analysis of the situation.

Construction Law

Table of Contents
Introduction......................................................................................................................................3
The scenario of the assignment........................................................................................................4
a). Explain the meaning of a 'variation or alteration' to the work in a construction context?......5
b). Advise whether or not C may be instructed to do this work, orally or in writing?..........7
c). Explain whether or not C must follow his line manager's instruction..................................10
Conclusion.....................................................................................................................................12
Reference:......................................................................................................................................13

Introduction
This assignment consists a deep study of the legal system and laws formulated under such
system. The focus of this assignment is on Construction Law, Contract Law, Employment Law,
Consumer Law, and Torts. Based on these laws, the solution to the issues provided under the
given scenario is given. These laws contain the duty and responsibility of the organisations and
the staff members of such organisations which must be complied for avoiding the legal penalties.
This assignment defines the term variation in the construction plan and its impact on the contract.
There are various guidelines which must be followed by the contractor/sub-contractor for
effective performance of the contract and to avoid future dispute.

The scenario of the assignment
This case is related to the construction of union block for the students. Under this, Krafty Ltd
enters into a contract with Dumm Ltd (D) to construct such block. As per the first stage of the
construction contract, the development of the ground floor was completed. For developing the
next floors for clubs and bars D enter into a sub-contract with Cool Unitd (C). While
constructing the floors, C got to know that the concrete mixture used for the building the block is
faulty as it will allow water to enter into the crack at the time of rains. However, D instructed C
to use such concrete for a building block and to fill the gap with a specific resin. According to C,
such remedy is wrong due to which the building and the individuals using such building can
suffer or incur damage in the future.
Now C seeks legal advice to deal with such issues.

a). Explain the meaning of a 'variation or alteration' to the work in a construction context?
Variation is a deviation in the agreed terms and conditions of a contract. It can also be said that
the modification in the stated contractual guideline due to a various number of factors. The main
reason for variation is the change in requirement of the party to the contract. This includes the
changes in the plans, documents related to the case or the conditions of the contract.
The changes are made by a formal document known as “Variation Order”. This is the
document in which terms and conditions related to the modification in the construction contract
and the related plans are mentioned. This order is in written form which issued to the contractor
after the execution of the main contract. This document is issued to authorise the changes or
modifications in the work or the changes in the money or consideration involved or the duration
of the construction (Hughes, et. al., 2015).
There are different types of variations which are as follows:
Direct Changes: Changes which are easily identifiable as they are directly related to the
construction project. These are the instructions or the directions provided by the owner to the
constructor, in most of the cases, or some other individual related to the performance of the
construction contract. These are the changes which may be in addition to the construction plan or
the changes in work to be done or the increase or decrease in cost of the project.
Constructive Changes: These are the changes which authorises the alteration or modification in
the construction plans or the contractual guidelines due to the performance or non-performance
of any act related to the construction. These are the changes which are mutually recognised by
both the parties to the contracts which may be related to any specific performance, or the
completion time or the cost of project. These changes must be provided writing to avoid future
disputes (Knowles, 2012).
Variations are common in the field of Construction and Architecture. It is suggested that for
implementing such changes, a separate agreement or a contract must be enforced between eh
parties. Taking the given scenario into consideration, the focal point of this case is the contract
between the contractor and the sub-contractor (Knowles, 2012). As not much information is

provided about the guidelines, terms, and conditions of the contract, the filling of the gaps can be
considered as an extra work which is not as per the contractual guidelines. The task assigned to C
was to build two floors, not fill gaps of ground floor. If the extra work which is assigned to the
sub-contractor by the contractor delays the performance of the contract between them and leads
to increase in the cost of the project, main contractor, D will be held responsible for it and all the
expenses and charges of such extra work must be to C.
As per clause 5.3.1 of the standards provided in JCT, 2011, this states that the contractor is
required to submit the quotation of the variation in a particular form and as per the Schedule 2.
This schedule must also mention the losses or the expenses which may be incurred which
implementing such variations. It is also considered that the person demanding changes will be
liable for the delay in the performance of construction project (Chappell, 2017).
As per Clause 62 of the Engineering and Construction Contract, this includes the procedure for
submission of the quotation and to be approved by the individual demanding such changes i.e.
main contractor as per this case. Such person may approve the quotation of the changes or
modification or demand a further explanation in this regards. It is the duty of such person to
reply in relation to the quotation of the variation with a period of two weeks (Knowles, 2012).
From the above discussion, this can be understood that the variation in the construction plan has
an impact on the operations related to the performance of construction contract which is as
follows:
 Cost of the project.
 The time duration for completion of project.
 Loss or expenses incurred due to the variation
 Resources Required (Burr, 2016).

b). Advise whether or not C may be instructed to do this work, orally or in writing?
Issue
There is a contract between the main constructor, D and the sub-constructor, C about building
two floors for the clubs and bars. During the construction process, it was found by C that there
were some cracks in first floor which will allow water to fill inside and will create a slippery
slime. C was instructed to fill the gap with a specific resin. According to C, this is a wrong deed
which may affect the building and its user in the future times. The issue faced by C under this
question is whether to receive such instruction orally or in writing.
Applicable Law
As per Contract Law, both the contract i.e. oral or written contracts are legally enforceable. It is
not necessary that the contract must always be in written form. It can be in writing, oral or
combination of the two. Oral contracts are uncommon contracts but it gives rise to the
contractual relations and is legally enforceable (McKendrick, 2014).
There are certain requirements which are described by the common law to create a legally
bounded contract. However, in accordance with the provisions specified in the Contract Law, to
make the contract legally enforceable is necessary that all the elements of the contracts are
satisfied which are as follows:
Offer: This is the first and foremost conditions which are to be fulfilled. According to this, an
offer must be made by one party to another party. This depicts the readiness to enter into a
contract and such offer becomes a legal contract once the offer is accepted by the offeree. The
terms and conditions of the offeror must be accepted by the offeree to create a valid contract.
Acceptance: It is the consent of the offeree to the offer made by offeror. All the terms offered
by the offeror must be accepted by the offeree and where offeree makes an offer to change the
terms of the original offer then is considered as a counter offer and will not form a valid
contractual relation between the parties (Hannigan, 2015).

Consideration: To form a valid contract, there must be some consideration. It is the money
which is paid by one party to another party against the performance of the contract. A contract
without consideration is considered as a void contract unless it is a gift.
Intention to enter into Legal Relationship: Before getting into a contractual relation, there
must be an intention to form legal relations between the parties. Both the party must perform
their part of contract (Cartwright, 2016).
Contractual Capacity: These are the conditions which must be met with at the time of entering
into an agreement. These conditions are:
 the mental stability of the parties to contract
 Should not be a minor.
As per the Employment Law, it is the duty of the principal to make sure about health and safety
of the workers and provides an adequate working environment. The principal will be held
responsible if any, injury is sustained by the worker at the time of the employment (Knowles,
2012).
Analysis
In accordance with the scenario, the main focus in on the contract entered by the D and C i.e. the
main contractor and sub-contractor. There are different norms and laws which are applicable to
this situation which is as follows:
Contract Act, 1990: According to this act, both, oral and written contracts are legally
enforceable. However, there are conditions which must be fulfilled by the parties to contract. So,
both the parties i.e. contractor and sub-contractor make that their contract have all the essential
elements of a contract.
The actual issue under the oral agreement is when it comes to litigation in the court; it becomes
difficult to prove the existence of all the elements of the contract. Even proving the existence of
the contract becomes difficult. The burden of proof lies on the aggrieved party to the contract.
There must be evidence of the oral agreement with the party at default.

Occupational Safety and Health Act, 1974: As there is a contract between D and C and C is
required to work as per the instruction of D. So, it can be considered that sub-contractor is
underemployment of the main contractor and the contract can be treated as an employment
contract.
This act provides that it is an obligation of the principal/employer to make sure about the safety
and health of the employee and the individuals not under his employment.
Section 2 states that the principal is responsible for the safety of the employees and providing a
working environment to them.
Section 3 deals with the duties of the principal towards the people not under his employment, the
operations of such principal must not affect their health and safety (Legislation.gov.uk, 2018).
Employment Rights Act, 1996: This act provides rights to employees to sue the employers in
case of any injury or damage incurred while in course of employment. The employer will be
liable to pay compensation.
Conclusion
As per the discussion made above, it is recommended that C must receive the instructions in
writing as in case there are issues between the parties, C will have proof of building the two
floors as per the variations received in writing from D. Moreover, quotations must also be
provided to D regarding the variation including the cost of such variation, time required for
implementing the variations and such quotations must be approved by D. So, there will be
conclusive evidence of working as per variations.

c). Explain whether or not C must follow his line manager's instruction.
Issue
According to C, building of two floors by filling the gap with resin will affect the life of the
building and its user may incur or sustain physical damage. This was due to the fault in concrete
mixture and C was instructed to use that mix to build two floors on the block.
Applicable Law
There are various laws which are applicable to the given situation. The major laws applicable in
this situation are as follows:
Tort of Negligence: This tort means any performance or non-performance of the act causes a
breach of obligation to take care. These acts are considered as “civil wrong”. The breach of duty
gives rise to the legal responsibility to pay compensation. However, it is essential that some
prudent person has suffered some loss. The same was stated in the case of Donoghue v Stevenson
(InBrief, 2018).
Misrepresentation Act, 1967: There are various situations in which parties to contract
misrepresent or make false statements to deceive another party. This can be done due to the
negligence of duty of the party at default. This is known as Negligent Misrepresentation. This
leads to the breach of duty to take care of another person, linking it with the Negligence Tort
(Chappell, 2014).
Under this, the person responsible for the act of negligence will be held responsible and the
aggrieved party has the right to sue and to claim compensation for the damages sustained by him
(Mondaq, 2010).
Occupational Safety and Health Act, 1974: As per section 2 and 3 of the act, it is provided that
it is the duty of the principal to provide a safeguard to the person, not under his employment as
well as his employees. It is the duty of the principal to make sure no injuries or damages are
incurred by any person due to his operations. It is also specified that such principal will be held

liable for the damages and is bound by the provision of the act to compensate the aggrieved
party.
Analysis
It is analysed as per the applicable laws and the scenario provided that:
 If the building is developed as per the direction of the main contractor, it will give rise to
the act of negligence at the part of C as he constructed the building knowing that
damages will be incurred to the building and its users in the future time if the building is
developed by using the concrete mix provided by D and filling the crack with resins
(Chappell, 2014). At first instance, C will be held responsible for such activities as the
user may incur physical injury due to such faulty construction (Adriaanse, 2016).
 As per the Misrepresentation Act, while selling the block, the buyer will not be
informed about the fault in concrete and the gap was filled with the resin. It will be
considered as a misrepresentation of information and the contractor will be held liable
and will compensate the aggrieved parties.
 As per the Occupational Safety and Health Act, the principal will be held responsible
for the damages of the workers and the users. The contractor will be bound to pay
compensation (Brauer, 2016).
Conclusion
It is suggested based on the applicable laws and norms that the instructions provided by the
manager must not be followed as this give rise to the act of negligence. The consequences which
can be faced are explained above.

Conclusion
As per the discussion made above, based on the given case and applicable laws that all the rules,
regulations and norms provided under these laws must be followed by the contractor while
constructing a building. The guidelines are given under JCT, 2011 and Engineering and
Construction Contract, which are related to the construction, must be complied with. It is
suggested that any act of negligence must not be performed by the any of the contractors as it is
considered as a civil wrong and person at default is held liable for such actions and is bound to
compensate the parties that have incurred losses or damages.

Reference:
1. Adriaanse, M.J., 2016. Construction contract law. Palgrave Macmillan.
2. Brauer, R.L., 2016. Safety and health for engineers. John Wiley & Sons.
3. Burr, A. ed., 2016. Delay and disruption in construction contracts. CRC Press.
4. Cartwright, J., 2016. Contract law: An introduction to the English law of contract for the
civil lawyer. Bloomsbury Publishing.
5. Chappell, D., 2017. Understanding JCT standard building contracts. Routledge.
6. Hannigan, B., 2015. Company law. Oxford University Press, USA.
7. Hughes, W., Champion, R. and Murdoch, J., 2015. Construction contracts: law and
management. Routledge.
8. Chappell, D. 2014 “The JCT Standard Building Contract 2011: An explanation and guide
for busy practitioners and students”, Wiley publishing.
9. InBrief, 2018. The Law of Tort. Available at: https://www.inbrief.co.uk/claim-
preparations/the-law-of-tort/. [Accessed on: 21.03.2018]
10. Knowles, R., 2012. 200 Construction problems and solutions. Wiley publishing.
11. Legislation.gov.uk, 2018. Health and Safety at work etc. Act, 1974. Available at:
http://www.legislation.gov.uk/ukpga/1974/37/contents. [Accessed on: 21.03.2018]
12. McKendrick, E., 2014. Contract law: text, cases, and materials. Oxford University Press
(UK).
13. Mondaq, 2010. UK: The Consequences of Making a Misrepresentation. Available at:
http://www.mondaq.com/uk/x/102458/trials+appeals+compensation/The+Consequences+
of+Making+a+Misrepresentation. [Accessed on: 21.03.2018]