NAME: MAZUAN BIN LINASSIGNMENT 4

MBEG 1134

Question

The problem of Concurrent delays and the principal theories or approaches in

solving them: Devlin approach, dominant approach, burden of proof approach.

Answer
Introduction

Concurrent delay is two or more occurrences that operate at the same time to
delay the progress of the Works. Where the delays in question act on different
activities, the matter is easily resolved by inputting the delays, one at a time, into
the contractors programme and checking the results as the process continues 1.
However, not all of those events enable the contractor to claim an extension of
time or to claim loss and expense2.

The issue involved in such delay is to determine the contractors entitlement to

extension of time as well as loss suffered from such delay caused by the owner
default; and the owners recovery of its actual delay or damages where the
contractor fails to complete its given work within stipulated period, due to the
contractors responsible delay that is concurrent to the owner caused delay3.

The Oxford dictionary defines the word concurrent as occurring or operating

simultaneously or side by side, or acting in conjunction. 4 The Society of
Construction Law, U.K., published its first influential Delay & Disruption Protocol
in 2002 in order to guide parties through common issues or problems involved in
1 Chappell, Marshall & Cavender, Building Contract Dictionary, Blackwell Science, 2001
2 Charles Russell: Concurrent delay. http://www.designingbuildings.co.uk/wiki/Concurrent_delay
3 Thapliyal A., Concurrent delays in construction work, Singh & Associates, UK, 2014
4 Oxford Dictionary; 3rd edition, 2010
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MBEG 1134

a construction projects by which they can resolve issues and avoid disputes. The
Protocol defines true concurrent delays as the occurrence of two or more delays
events at the same time, one an employer risk event, the other a contractor risk
event and the effects of which are felt at the same time.5

In analysing concurrent delays, each delay should be assessed separately and its
impact on other activities and the project date for completion calculated. Much
will turn on the quality of planning and programming, and record keeping. Not
only will there often be several delay events running in parallel, but there may be
parallel critical paths to contend with and periods of acceleration and/or
mitigation to take into account. The contract conditions will also have to be taken
into account on the analysis technique used6.

Keating on Building Contracts looks at a number of propositions as follows:7

1) The Devlin Approach
2) The Dominant Cause Approach
3) The Burden of Proof Approach

Devlin Approach

The first is described as the Devlin approach, a reference to a decision of Devlin

J. as he then was in Heskell v Continental Express Limited8.

In delivering his judgment, Devlin J. has stated:

5 The Society of Construction Law, U.K., Delay & Disruption Protocol, 2002
6 Gibson R., Technical Papers : Dispute Resolution 03, Gibson Consulting Limited, May 2010
7 Ramsey V. & Furst S., Keating on Construction Contracts, 9th Ed., Sweet & Maxwell, 2015
8 [1950] 1 All England 1033
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MBEG 1134

If a breach of contract is one of two causes of a loss, both causes cooperating and both of approximately equal efficacy, the breach is
sufficient to carry judgment for the loss.....

However, this approach is obviously unworkable in a construction contract

context. The difficulty is that it must be applied to both the claim of the
contractor for loss and expense or damages and the counterclaim of the Employer
for liquidated damages. In those circumstances, one could have the absurd
position that the Contractors claim for direct loss and expense succeeded in
relation to a period of delay and the Employers claim for liquidated damages
succeeded in respect of exactly the same period of delay9.

Dominant Cause Approach

Dominant cause approach is the approach adopted to resolve which of two

competing causes of delay or disruption is to be applied. That which is found to
be dominant is taken to be the cause of the delay or disruption.

In H. Fairweather Ltd v London Borough of Wandsworth 10, Judge Fox-Andrews

when describing dominant stated that:

Dominant has been said to have a number of meanings: Ruling,

prevailing, most influential

9 Adrian Williamson QC, Concurrency In Construction Delays, Keating Chambers, UK, 2005
10 [1987] 3 9 BLR 106
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In both City Inn Limited v Shepherd Construction Limited 11 and John Doyle
Construction Limited v Laing Management (Scotland) Ltd 12, Drummond Young LJ,
when talking about concurrency in respect of extensions of time and loss,
supported the proposition of the dominant or proximate cause approach, which
was said to derive from Leyland Shipping Company Limited v Norwich Union Fire
Insurance Society Limited13 and other insurance cases14.

Burden of Proof Approach

The Burden of Proof Approach contends that if there are two causes and the
claimant is in breach of contract, it is for the claimant to show that the loss was
caused otherwise than by his breach15.

Keating on Building Contracts has described the burden of proof approach as

follows:16

If there are two causes, one the contractual responsibility of the

Defendants and the other the contractual responsibility of the Claimant,
the Claimant succeeds if he establishes that the cause for which the
Defendant is responsible is the effective, dominant cause....

11 [2010] BLR 473

12 [2002] BLR 393
13 [1918] AC 350
14 Chappell, Marshall & Cavender, Building Contract Dictionary, Blackwell Science, 2001
15 Thapliyal A., Concurrent delays in construction work, Singh & Associates, UK, 2014
16 Ramsey V. & Furst S., Keating on Construction Contracts, 9th Ed., Sweet & Maxwell, 2015
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MBEG 1134

This approach has the great advantage that it can be applied equally to both
claim and counterclaim. There can only be one dominant cause of any particular
period of delay. If the dominant cause is the contractual responsibility of the
Employer, the Contractor gets loss and expense and does not pay liquidated
damages. If the dominant cause is the contractual responsibility of the
Contractor, his claim for loss and expense fails and he must pay liquidated
damages for the period of delay17.

Conclusion

Keating defined three type of approaches to justify the concurrent delays which is
The Devlin Approach, The Dominant Cause Approach and Burden of Proof
Approach. The Devlin Approach which contends that if there are two causes
operating together and one is a breach of contract, then the party responsible for
the breach will be liable for the loss. The Dominant Cause Approach contends
that if there are two causes, the effective, dominant cause is to be the deciding
factor. Lastly, The Burden of Proof Approach; which contends that if there are two
causes and the claimant is in breach of contract, it is for the claimant to show
that the loss was caused otherwise than by his breach.

17 Adrian Williamson QC, Concurrency In Construction Delays, Keating Chambers, UK, 2005
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