International Construction Law Review
CONCURRENCY, CAUSATION, COMMONSENSE AND COMPENSATION (PART 1)
ANDREW STEPHENSON
Partner, Clayton Utz, Melbourne, Australia
1. INTRODUCTION
The purpose of this paper is to discuss the proper analysis of the causal connection between concurrent delaying events and a contractor’s entitlement to extensions of time.
This paper will address the role of causation where there are concurrent delaying events by reference to the following issues:
(a) methods of assessing delay to completion;
(b) how the existence of concurrent causes of delay, only one of which arises from an excusable cause, affects the contractor’s entitlement to an extension of time;
(c) types of concurrency;
(d) the common law approach to causation1;
(e) construction cases dealing with concurrent causes of delay; and
(f) whether apportioning the gross delay between concurrent causes of delay is appropriate.
In the vast majority of cases, the “but for” test of causation will be appropriate in resolving disputes about causation. However, where there are concurrent causes the “but for” test is unreliable. This paper considers a number of cases, unrelated to delay in construction, to establish the basic common law approach to causation and then considers the application of that approach to delay in construction cases. This paper contends that the limited authority, arising from construction cases dealing with concurrent delays, fails to follow the common law principles established in non-construction cases and, as a consequence, falls into error.
Further, the paper contends that the approach taken in Keating on Construction Contracts (8th edition)2 is simplistic and inconsistent with
1 One matter not fully canvassed by this paper is the related issue of whether and in what circumstances a contractor is entitled to extra costs as a consequence of delay to the project. This issue is dealt with in the paper by Ian Bailey, SC (see page 197, below), along with legal issues concerning the recovery of liquidated damages for late completion.
2 D Keating, S Furst and V Ramsey, Keating on Construction Contracts (2006) (“Keating”).
Pt 2] Concurrency, Causation, Commonsense and Compensation (1)
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