International Construction Law Review
CONCURRENT DELAY IN CONSTRUCTION – PRINCIPLES AND CHALLENGES
FRANCO MASTRANDREA
LLB (Hons), MSc, PhD, FRICS, FCIArb, Barrister at Law
INTRODUCTION
Concurrent delay on construction projects, i.e. where delay results from two or more causes – such as matters for which each contracting party is separately and independently responsible, each sufficient to explain the delay – continues to provoke debate and comment, particularly in the UK, suggesting that all is not well with this area of law and practice. This appears to be due to a combination of factors, including the search for an adequate definition of concurrent delay, the consequences of adopting particular contractual provisions, the application of such provisions, and the principles and methodologies used to determine entitlements to further time or money.
Lawyers have traditionally searched for the causes of construction delays by reference to the general law’s standard approach to causation, i.e. through the use of a counter-factual analysis (the but-for test).
However, because the but-for test breaks down in cases of damage resulting from independently sufficient causes, lawyers have been obliged to devise alternative means of locating the relevant causes in those circumstances. Recent academic literature on concurrent causes has garnered broad support, particularly that surrounding Wright’s “NESS” condition (being a necessary element of a set of conditions sufficient for the consequence1). The nature, relevance and application of such conditions to the identification of causes of concurrent delay are explored.
Beyond the strictly causal enquiry, the questions whether liability should attach2 and, if so, its extent are increasingly raised. This includes, notably, calls for improved protection for defendants. That pressure has led to changes in the law of tort, such as in Australia as the introduction of proportionate liability models. Even contract – where an “all-or-nothing” strict liability regime has had significant traditional sway – has not escaped scrutiny. This has extended to calls for the efficacy of events more
1 Richard W Wright, “Causation in Tort Law”, 73 Cal LR 1735 (1985), at p. 1788.
2 Causation does not equate with responsibility. The question whether something was a cause in fact is increasingly regarded as distinct from the normative question whether the defendant should be held responsible for his involvement, sometimes confusingly labelled “proximate cause”.
The International Construction Law Review [2014
84