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3.1 14 Apportionment

The document discusses the apportionment of construction delays between employers and contractors, outlining two scenarios: 'Jury Verdict' and 'Apportionment of Time.' It explains how damages are allocated based on the responsibility of each party for specific delay events and highlights the legal principles endorsed by various jurisdictions regarding concurrent and sequential delays. The document also references relevant case law to illustrate the application of these principles.

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8 views10 pages

3.1 14 Apportionment

The document discusses the apportionment of construction delays between employers and contractors, outlining two scenarios: 'Jury Verdict' and 'Apportionment of Time.' It explains how damages are allocated based on the responsibility of each party for specific delay events and highlights the legal principles endorsed by various jurisdictions regarding concurrent and sequential delays. The document also references relevant case law to illustrate the application of these principles.

Uploaded by

BahmanTamaddon
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF, TXT or read online on Scribd
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Construction Delays &

Concurrent Delay
By/ Ghosoun Hashem
BEng, PMP-PMI, CLAC, CCP, RMP

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Apportionment

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3.3 Apportionment
• Scenario (i)”:

Apportioning faults between the Employer and the Contractor; and accordingly
apportioning resultant damages.

• Apportioning liability considering contributory negligence or contribution among


joint wrongdoers.

• For a specific delay events, the Employer was responsible for x% of it, and the
Contractor was responsible for y% of it.

• Approach called (“Jury Verdict”),


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3.3 Apportionment
• Scenario (ii): Apportioning of time/delay arises from the competing causes of delays
based on the party responsible for each cause/risk, whereby the decision maker
identifies how many days of delay were attributed to the Contractor and how many
days of delay were attributed to the Employer, accordingly assesses/allocates
damages i.e. each party bears the damages for the period he is responsible of.

• For instance, by the means of thorough delay analysis, specific delay period was
solely attributed to one party and subsequent delay period was solely attributed to
the other party .

• Approach called (“Apportionment of Time”) . 4


3.3 Apportionment

• If scenario (i) “Jury Verdict” applied,

the Employer and the Contractor will both together share the damage associated with
delays based on the significance of delays impact on the project as a whole, therefore,
LDs/Prolongation Cost will be partially granted on account of comparative fault basis,
which is similar to tort principle of apportioning liability in cases of contributory
negligence or contribution among joint-wrongdoers.

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3.3 Apportionment

• If scenario (ii) “Apportionment of Time” applied,

The net effect will apply, i.e. if the contractor is responsible for ‘x’ days delay after the
completion date and the Employer is responsible for ‘y’ days delay after the completion
date, and let’s assume x is bigger than y; then during the period ‘y’ time-but-no-cost
approach will be applied (this analogous to x equal y) similar to what is broadly
implemented in England and United States, and for the period ‘x-y’ LDs will be applied.

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3.3 Apportionment

The American Court of Federal Claims stated that to distinguish between Concurrent
and Sequential Delays, Two examples provided;

1) delay to the commencement of the works emanated from late approval of plans
(Relevant Event) and late ordering of materials (Contractor’s default), is said to be
concurrent and apportionment is not applicable,

2) Employer’s delay in approving the location of a supply road (Relevant Event), then
subsequently delayed delivery of materials (Contractor’s default), is said to be
sequential and apportionment is applicable.
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3.3 Apportionment

• Apportionment of fault “Jury Verdict” was approved under Scottish law.

• It was recognized in John Doyle case, whereby Extra Division, Inner House Court of
Session preferred to apply apportionment where no dominant cause can be
identified.

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3.3 Apportionment

Case Of City Inn Limited v Shepherd Construction Ltd. Lord Drummond Young stated:

“Where there is true concurrency between a relevant event and a contractor default, in
the sense that both existed simultaneously, regardless of which started first, it may be
appropriate to apportion responsibility for the delay between the two causes; obviously,
however, the basis for such apportionment must be fair and reasonable.”

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3.3 Apportionment

Many other jurisdictions have in general endorsed the principles of Apportionment, such
as Canada, New Zealand, Australia, Hong Kong, Italy and other civil law jurisdictions
such as UAE whereby the principles of good faith, reasonableness, honesty and fairness
represent core principles under the law.

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