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DAMAGE RECOVERY MEASUREMENT ISSUES UNIQUE TO CONSTRUCTION DISPUTES

International Construction Law Review

DAMAGE RECOVERY MEASUREMENT ISSUES UNIQUE TO CONSTRUCTION DISPUTES Philip L Bruner * I. THE COMPLEXITY OF CONSTRUCTION DAMAGE MEASUREMENT Damage recovery measurement is nowhere more complex – a veritable “Gordian Knot” 1 – than in major construction litigation where different measures of remediation underlie different proofs of causation frequently obscured by the murkiness of concurrent multiple causative events and often arising out of modern judicial contextualisation that has resulted in the emergence of “construction law”. 2 The sources of such “Gordian” complexity are legion: (1) Construction damage measures address claims arising out of facts involving a host of complex applied sciences, such as architecture, the engineering disciplines of civil, soils, structural, electrical, mechanical, and others, the materials sciences that govern the extraction, formulation and manufacture of building materials, contractor trade customs and practices, building codes usually seeking to build a project to a unique design, and arising out of unique projects built on a unique site, by a unique aggregation of companies, operating without economies of scale in an uncontrolled environment, where productivity is affected by * Philip L. Bruner is an arbitrator and mediator of disputes arising out of the construction, engineering, energy, infrastructure and related fi elds, and is the Director of the JAMS Global Engineering and Construction Panel of Neutrals. He is a Fellow and Chartered Arbitrator of the Chartered Institute of Arbitrators, Fellow of the College of Commercial Arbitrators, Member of Britain’s Society of Construction Arbitrators, Fellow and Past-President of The American College of Construction Lawyers, Honourary Fellow of the Canadian College of Construction Lawyers, Fellow of the International Academy of Construction Lawyers and Fellow of the American Bar Foundation. He is the co-author with Patrick J. O’Connor, Jr of Bruner & O’Connor on Construction Law , the 12-volume legal treatise regarded as a defi nitive American work in its fi eld. His CV may be found at www.jamsadr.com under “Neutrals”. 1 The legend of the Gordian Knot is recorded in the World Book Encyclopedia as follows: “A Phrygian peasant named Gordius used [the knot] to tie the ox yoke to his chariot. Gordius became king of Phrygia because an oracle advised it. A legend said that the man who could loosen the difficult knot would become ruler of all Asia. Many people tried without success. Finally, Alexander the Great cut the knot with a sword, and declared that he had fulfilled the prophecy … The expression cutting the Gordian knot means solving a difficult problem in an unexpected way.” 2 See, Philip L. Bruner, “The Historical Emergence of Construction Law” 34 Wm Mitchell L Rev 1 (2007), Paul Hardeman Inc v Ark Power & Light Co 380 F. Supp 298, 317 (ED Ark 1974) (“Construction contracts are a separate breed of animal and, even if not completely sui generis , still … the law must be stated in principles reflecting underlying economic and industry realities”). Pt 3] Damage Recovery Measurement Issues Unique to Construction 321

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