Reasonable Steps To Avoid Or Reduce Delay
WHAT IS MEANT BY A CONTRACTOR HAVING TO TAKE ANY REASONABLE, PRACTICAL STEPS TO AVOID OR REDUCE A DELAY ?
Clause 29.4 of the JBCC Series 2000 Principal Building Agreement requires action from the Contractor whenever he becomes aware of a circumstance which could cause a delay to practical completion.
The Contractor is required to
- give the Principal Agent written notice of the delay
- take any reasonable practical steps to avoid or reduce the delay, and
- timeously notify the Principal Agent of his intention to submit a claim for a revision of the date for practical completion.
With regard to 2) above, similarly worded provisions are to be found in many forms of construction contract and commentators and the courts agree that, in taking reasonable practical steps, the intention is not to expend money.
Keating on Building Contracts 5th edition at page 575 states “Thus, for example, in some cases it might be the Contractor’s duty to reprogramme the works either to prevent or reduce delays. How far the Contractor must take other steps depends upon the circumstances of each case, but it is thought that the proviso does not contemplate the expenditure of substantial sums of money.”
In Terrell v Maby Todd & Co., an English case in 1952, the judge held that such a provision only required a party to do what was commercially practicable and what it could reasonably do in the circumstances.
Such a provision requires a Contractor to take reasonable practical steps to keep the effects of any delay down to a minimum or to avoid them if possible.
Especially if the cause of the delay is any of those listed under clause 29.2 the Contractor is not required to expend his own money to reduce the delay.
R D PICKLES | FORMER MEMBERSHIP SERVICES MANAGER |
