Procurement and Contractual Practice

Procurement and Contractual Practice
Procurement and Contractual Practice
[Author Name(s), First M. Last, Omit Titles and Degrees]
[Institutional Affiliation(s)]
Author Note
Contract & Procurement Management (Project Management)

Procurement and Contractual Practice 1
Question 1
Issues
Whether the Architect, the Surveyor, Demolition Contractor, and the building contractor
were liable for the injuries caused to the employee.
Rules of Law
There are three elements that a plaintiff must prove in a claim of negligence. One of these
is a duty of care. The landmark authority for establishing a duty of care was the case of
Donoghue's Case where Lord Atkin stated that a person owes a duty of care to the neighbor who
could reasonably suffer injuries due to omissions and acts of the ignorant party.1 Where a duty of
care is owned by different persons, the court in Clay v AJ Crump & Sons Ltd stated all persons
would be jointly liable.2 The second element requires is a breach of the owed standard duty. This
is mainly an objective test where the claimant needs to establish that the defendant acted in a
different way a reasonable person with the defendant’s circumstances would have acted. Lastly is
the establishment of a causal link between the claimant’s injuries and the defendants’ breach. The
“But For” test established by Lord Denning requires the claimant to establish that the injuries
would not have occurred “but for” the fault made by the defendant.
Application
On application, the employees need to establish the existence of the duty of care, the
breach and establishing that the loss occurred due to the breach. The rule created in the neighbor
principle requires the employees to establish that the Architect, the Surveyor, Demolition
1
Donoghue v Stevenson (1992) 108 LQR.Donoghue v Stevenson (1992) 108 LQR.
2
Clay v AJ Crump & Sons Ltd (1964) 1964 QB 1.Clay v AJ Crump & Sons Ltd (1964) 1964 QB 1.

Procurement and Contractual Practice 2
Contractor, and the building contractor needed to reasonably foresee that their fault would have
harmed the employees. In Lords in Caparo v Dickman, it was established that the claimant must
show that there was the loss instigated was reasonably foreseeable, there was a satisfactory
proximal relationship between the claimants and the defendants, and it would be reasonable, fair,
and just to impose a duty of care to the defendant.3 From the facts provided, Ms. Goodwin had
informed the Architects, Surveyors, and Demolition Contractor clear the site in preparation of the
constructions. Therefore, all these parties were aware that the site would be used by the
employees. On the part of Building Contractor, he should have foreseen the failure to examine
the old garage could cause harm to employees if the garage was not stable. This establishes a
duty of care.
The employees also need to demonstrate that the defendants’ breached their duty of care.
This requires an objective test to demonstrate that any other person given the circumstances of
the defendants would have acted differently to prevent the loss. In Phillips v Whiteley Ltd, the
Court found that the defendant was not liable since the standard of care required was that of a
skilled ear piercer, and that was what was provided.4 Therefore, the defendant should have acted
in the same way a reasonable person in their profession would have acted to prevent the loss.
Also, they should have followed Ms. Goodwin instructions.
The last step is establishing the causal link. On the application of the but for the test, it is
a fact that the employees would not have been injured but for the defendants’ fault in leaving the
structure. In Clay v AJ Crump & Sons Ltd, the court found the architect, the demolition
3
Caparo Industries Plc v Dickman (1990) 1990 AC 2.Caparo Industries Plc v Dickman (1990)
1990 AC 2.
4
Phillips v William Whiteley Ltd: (1938) 1 ER.Phillips v William Whiteley Ltd: (1938) 1 ER.

Procurement and Contractual Practice 3
contractor and building contractor all liable for the damages since they jointly concluded to
retain the wall.5 In the case of Ms. Goodwin, Architect, the Surveyor, Demolition Contractor
would be liable for retaining the garage, while the building contractor would be liable for not
inspecting the garage.
Conclusion
Architect, the Surveyor, Demolition Contractor, and the building contractor would be
liable for injuries caused to employees.
Question 2
Public nuisance in construction work occurs where construction sites are poorly managed
to the extent of causing high levels of noise, intolerable dust emissions, chemical release into the
environment, thus posing risk to visitors and trespassers. Public nuisance is nuisance that
substantially disturbs the reasonable convenience and comfort of other people’s lives, community
and class of persons as described in Attorney general v Pya Quarries.6 Dyson LJ explained that
rights protected by criminal or tort laws in public nuisance prevent unlawful acts or omissions
that can adversely affect or endanger health, life, and safety of the public.7
In establishing a public nuisance, Lord Hanworth MR stated that the claimant must prove
that (a) the defendant unreasonably obstructed the highway; (b) the obstruction caused the
claimant to suffer special injuries or loss beyond injuries or loss suffered by the rest of the
5
Clay v. AJ Crump & Sons Ltd (n 2).Clay v. AJ Crump & Sons Ltd (n 2).
6
Attorney-General v PYA Quarries Ltd [1958] EWCA Civ 1.Attorney-General v PYA Quarries Ltd
[1958] EWCA Civ 1.
7
Register of the Corby Group Litigation v Corby Borough Council (Costs) [2008] EWCA Civ
463.Register of the Corby Group Litigation v Corby Borough Council (Costs) [2008] EWCA
Civ 463. Line 29