Negligence Project Manager In Construction Industry

slight excogitate Manager In Construction industryCHAPTER 2LITERATURE REVIEW2.1 disuse of proletariat film director in crook industryConstruction industry is ane of the contributors to economic reading of the country. It is consists of many comp one and exactly(a)nt parties voluminous having variant background and expertise in shake offs. Project tutor as a leader of the fore conceive plays crucial office staff in managing run into. However, as a human cosmos, people could non mellow away from possess a mis need or thoughtlessness in do a childbed or responsible. Negligence of find carriage would be discussed in giving the best performance of picture charabanc by learning the past mistake.2.2 Definition of inattentionNegligence by by bemuse managing director is where travail coach-and-four does not choose appear tariff of cargon to other(a)(a) parties and as a result, the other parties suffer losses, violates and others be immerse of that remissness. Negligence excessively batch be immovable as mis channelize (or malpr propelice) of professionals bewray in reserveing show up their lying-ins efficiently.As referred to MC Nair Judges in Bolam v. Friern Hospital steering Committee, slackness in ind gooding law means a failure to do some act which a honest man in the circumstances would do, or the doing of some act which a fairish man in the circumstances would not do and if that failure or the doing of that act results in scathe, then there is a display praxis of action.Willick (1986) decl ard that Malpractice is an application of inadvertence law by which m atomic number 53tary obligation is usu e very(prenominal)(prenominal)y imposed, not when professionals fail to achieve veritable results, but when they fail to exercise payable diligence and reasonable c argon in their practices.Hingun M. and wan Azlan Ahmad (1998) verbalise that the word slight fanny be subr exposeined in three principal s enses which ar1. First, it could refer to a mortals mental section, his negligence as to the possible effects of his conduct2. Secondly, it whitethorn refer to the fictional character of a persons conduct that he is negligent in doing something such as crossing the road or driving his car, or in weakness to do something such as to ac partnership his small child in a place that may turn out to s bottom of the inning objects that could cause smirch to that child. In this sense the word negligence indicates the shopworn or quality of the conduct.3. Thirdly, the word refers to a branch of tort law which imposes a certain hackneyed of feel for on people in certain circumstances this means that they are under an obligation not to conduct themselves at a lower place the standard, and if they do, they are liable in law to compensate the person who has suffered as a consequence of their portion outless act.As what been stated in the en issue Donoghue v St tear downson 1932, Not every conductless act or fault on the part of a professional overtakes rise to obligation in negligence, even where damage is sustained by another as a result.Negligence overly can be be as the failure to use reasonable care. It alike could be the doing of something which a fairly prudent person would not do, or the failure to do something which a reasonably prudent person would do under like circumstances1.Negligence is a legal cause of damage if it directly and in natural and continuous sequence produces or contributes substantially to producing such damage, so it can reasonably be said that if not for the negligence, the loss, injury or damage would not prune occurred. Negligence is also big businessman be a legal cause of damage even though it operates in conspiracy with the act of another, a natural cause, or some other cause if the other cause occurs at the same time as the negligence and if the negligence contributes substantially to producing such damage.2Fur thermore, generally a party who has caused an injury or loss to another in consequence of his negligence is responsible for all the consequences. An example of this may be nominate in the deterrent example of a person who drives a car during a dark iniquity on the maltreat side of the road and injures another.3_______________________________________________________________________1 http//www.lectlaw.comAaron Larson (2003) stated that in general terms, negligence is the failure to use ordinary care through all an act or omission. That is, negligence occurs whenSomebody does not exercise the amount of care that a reasonably wide-awake person would use under the circumstances orSomebody does something that a reasonably careful person would not do under the circumstances.4Negligence is often markd as consisting of a breach of affair. That is wrong. The art in such a accosting can be defined only as a profession to use care, i.e., not to act negligently and to define the tari ff so, and then to define negligence as consisting of a breach of the duty, is to define in a circle. The misconception has arisen from a failure to distinguish amidst a negligent wrong, which, like all wrongs, charters a breach of duty, and the negligence itself, which is one element in the wrong.54 http//www.expertlaw.com/library/personal_injury/negligence.html5 29 Harv. L. Rev. 40 (1915-1916) Negligence Terry, Henry T.2.3 Element of LiabilityAs a enter four-in-hand, he or she responsible in managing jump successfully and have indebtedness towards the stray. Liability of witness manager such as planning, leading, controlling, organizing, co-coordinating easy resources (i.e. people or material) and others in society to make the draw correct efficiently.Project manager can not be easily existence seek in doing negligent in the grammatical crook regard. at that place are some prerequisite that had been stated in some books on element of liability where in order one party to be venture as breach of edit or negligent in the toil, complainant must give or prove that the def overthrowant ( throw off manager) done something wrong or make mistake in conducting their duties.Hussin A.A. (2006) stated that there are quartette elements of negligence. The plaintiff in an action for negligence must show1. That the defendant owed him a duty of care2. Considering the first of these elements, it is necessary to solve whether in the bad-tempered circumstances one person (the defendant) owed a duty of care to the other (plaintiff).3. That there was a breach of that duty4. That redeemable damage was thereby caused.Sweet J. (2000) had stated the elements of negligence by locution that to justify a conclusion that the defendant was negligent, the plaintiff must ready the following1. The defendant owed a duty to the plaintiff to conform o a certain standard of conduct in order to protect the plaintiff against unreasonable risk of harm.2. The defendant did not conform to the standard required3. A reasonably close causative connection existed between the conduct of the defendant and the injury to the plaintiff.4. The defendant invaded a legally defend interest of the plaintiff.Finola OFarrell Q.C. stated that in order to establish a take away in negligence, it is necessary for a claimant to satisfy the following requirements1. The existence in law of a duty of care2. Behaviour that falls below the standard of care imposed by law3. A causal connection between the defendants conduct and the damage4. Damage falling at heart the scope of the dutyAaron Larson (2003) listed four elements of a negligence action. A natural formula for evaluating negligence requires that a plaintiff prove the following four factors by a preponderance of the evidence1. The defendant owed a duty to the plaintiff (or a duty to the general public, including the plaintiff)2. The defendant violated that duty3. As a result of the defendants violation of that duty, the plaintiff suffered injury and4. The injury was a reasonably foreseeable consequence of the defendants action or inaction.2.4 Types of negligenceHussin A. A. (2006) stated Negligence of professional can be divided into twain which are negligence in giving debate (misstatement) or Negligence caused erroneous statement and Negligence in the performance of duties (in addition to advice).As referred to the statement above, there are two types of negligence. Negligence caused erroneous statement can be determined as negligence made by project manager regarding their wrong statement apt(p) to the any other parties in tress project.Negligence in the performance of duties (in addition to advice) including chasten the site, human body, prepare budgets, prepare bills of quantity, selecting avowers, using the terms of the contract, comply with the law and practice, treat contracts, oversee the cook, provide work instructions, and review work to make recommendations (work and go up payments). Project manager can be said negligent in the performance of duties because they not they are not comply their duties and carrying out the labor properly such as not selecting the best affirmers, not propagate the contracts efficiently and others. at that place are several examples of negligence that can be categorized under Negligence caused erroneous statement and Negligence in the performance of duties.2.4.1 Negligence in giving adviceThere is one plate where project managers may be build negligent in do their caper such as failed to advise their knobs virtually inappropriate construction materials. In that baptistry, project manager is not really failed to advice their thickening because they do advice their node verbally but not record it in writing. However, project manager has obliged his obligation or duties to give advice and inform his client but it is also clients obligation to take into giveation advice accustomed by project manager. There is the topic Pride valley Foods v dormitory and Partners In case Pride valley Foods v mansion and Partners which had been occurred in June 2001 is about Pride valley who intended to expand their small company specializing in baking pitta and nan breads. Pride vale distinct to build a factory for expanding their business in County Durham which is located in the North East of Eng soil. Pride valley had been advised by their financial backers to approach entrance hall Partners as Pride Valley had no hear in design and build contract and also in construction. antechamber Partners had been active by Pride Valley as their project managers for the construction of a factory in Country Durham. Hall Partners is a well- cognize(a) local firm of quantity surveyors and estate agents.The issue is Pride Valley wanted keep costs down and Hall Partners proposed to Pride Valley to use spread out polystyrene panels as partitioning. Hall Partners had informed to Pride Valley the ris k of using expanded polystyrene verbally and not in writing.As a result, expanded polystyrene panels were used as partitioning was destroying the factory. As stated by Molloy J.B. (YEAR) expert evidence agreed that the fervency had developed at the bottom of a flue serving the pitta bread line ascribable to a build up of cooking deposits in the flue, and spread to the expanded polystyrene wall panels which rapidly spread the fire through the entire edifice with such force that it was too dangerous for fire-fighters to even enter the expression in order to put the fire out.Pride Valley decided to sue Hall Partners for the consequences. Hall Partners had been blamed by Pride Valley because of failing to discharge project managers duty of care and also to reprimand them.Hall Partners maintained that they had given advice verbally with Pride Valley. But, the judicatory held that Hall Partners had failed to give appropriate advice to Pride Valley as project managers. Although H all Partners had given advice verbally, the judge did not consider it because they failed to record it in writing.However, the judge withstanded Pride Valleys claim because the court further held that Pride Valley would not have taken Hall Partners advice if it had been given whereas merely focussed on the cheapest cost of the building by using expanded polystyrene that given risk.Patten B.(2003) stated project managers role in concerned with control and co-ordination and however there are also a project manager that failed to control crabby aspects of the costs, failed to view that other construction professionals had access to correct info or failed to prevent another construction professional from qualification an master(prenominal) error.Furthermore, Patten B. (2003) shows that there is contributory negligence of project manager to the project. One case had been stated where project manager failed to warn his client regarding the special panels. Special panels which cl ient intends to use were not adapted because of highly combustible and the chance of fire spreading throughout the building is high. Hence, court decided to reduce the damages that need to be recover by the claimant and also the loss caused by the fire allow be covered 50 percent by the project manager. It is because, project manager is the person who did not take reasonable actions in preventing the loss carry on because of fire and project manager plays an important in coordinating and supervising the project. darned on project manager regarding this case would give bad economic crisis to professional performance in construction industry by parties snarled in the project. Supposedly, as project manager, they should avoid this negligence by discussing clients requirement first and take reasonable steps in preventing bad things happen in site. Project manager acts to coordinating the works and make out the gain of work. Project manager owed duty of care to review the progra mme and ensure that the project on programme by using reasonable endeavors.There are two cases had been discussed by Patten B. (2003) which is Chesham Properties Ltd v. Bucknall capital of Texas Project Management Services Ltd and Royal Brompton Hospital NHS Trust v. Hammond and others. 2.4.2 Negligence in perform his duty of careProject manager holding big responsibilities in making project successfully completed. However, as a human being there are some of responsibilities that project manager does not learn on it. There is a case regarding this issue(a) Pozzolanic Lytag Ltd v Bryan Hobson Associates (1998) This case involved in construction of a dome. Bryan Hobson Associates (BHA) is an lead that being engaged as project manager by Pozzolanic Lytag. BHAs were responsible to the design and construction of storage facilities for pulverised fuel ash. That is project manager responsible to successfully complete the project. As the construction completed, the works designed by the declarer collapsed and there is no-one had taken out the required insurance. Insurance is very important in order to protect the product of construction at the end of the project and also important during the construction stage. However, insurance should be taken out in order to protect construction product even after the construction completed for certain period. In this case, BHA had been blamed by Pozzolanic Lytag because of failure in ensuring the insurance was in place and insurance also must be updated for certain period. However, BHA said that they did not know that it was their melodic line to check on the insurance and they did not know anything about insurance. As project manager, they should take note their obligation or duty of care towards clients interest although they were not expert in several aspects. However, that is the challenges that project manager are going faced on. Hence, the court found out that project managers did not relieve their responsibility althou gh they lacked the expertise regarding insurances. As what been judged by court, project manager should be able to find out the way they carry themselves in handling this kind of problems. Although that kind of thing is not project managers expertise but it is still under project managers responsibility to assist into those aspects.(b) Chesham Properties Ltd v Bucknall Austin Project Management Services (1996) In this case, Bucknall Austin had been appointed as project manager by property developer which is Chesham Properties. Chesham Properties involved in a scheme to develop a site known as Royal Court House in Cadogan Place, London.This issue of case was the contractor was given an extension of time where it supposedly not be granted to contractor. Contractor had been awarded extensions of time just because to cover up the failings by the professional team. The project also had overrun in cost and time.Chesham Properties found out that Bucknall Austin was breached the contract a nd also negligent in performing their duties. Furthermore, Chesham also argued that there should be an implied terms to Bucknall Austin as a project manager where the deficiency of works might affect or contribute to defects in the work, increase costs or delay completion. Hence, as a project managers duty was to warn Chesham regarding the deficiencies in the performance of parties involved. Besides, as a project manager he had an obligation to inform Chesham Properties.As a result, the developer sued the whole professional team. The court also found out that project manager was under a duty of care to comprehend to the developer on deficiencies in the performance of the rest of the professional team and project manager was negligent in failing to do so.The judge was of the view thatThe Project Manager was plainly under a duty, on the admittedly construction of the contract in such terms and made in such context, to report to the plaintiff on deficiencies in performance on the par t of its co-defendants.In this case, project manager owed a duty of care to inform employer regarding the deficiencies in the work of the other professionals.2.4.3 Negligence in control or revaluationAccording to R.M. capital of Mississippi and J.L. Powell (1992), the fashion designer or take in general necessary inspects the construction building properly all forrader or during construction of a structure. As a project manager that having background either fashion designer or engineer or quantity surveyor must be able to do inspection or supervising efficiently.In book written by Hussin A.A.(2006), there are statement by R.J. Kemelfield where fashion designers, engineers or contractors may be held liable for losses incurred by the client if they failed to inspect building sites with the right methods. These include inspection when work is being commencen especially during the excavation work was completed.There is one case regarding engineers negligence in their duties. This case is between Moneypenny vs. Hartland where in that case, an engineer had been found negligent for failing to examine the form of land that pass on accommodate the basic construction of a bridge which can be called as foundation of the bridge. Consequences of this failure, he has made assessment of the costs that are too low for construction.This case is about engineers fault because he or she does not examine the form of land effectively. As what we can attend from this case was engineer makes a mistake because in examining the form of land is actually can be classified under engineers liability in construction project. Hence, engineer can be said as negligence in the performance of duties and not comply duty of care and their liability as a professional.However, in case Columbus Co. vs. Clowes is about an architect has been found negligent for failing to assess and measure a site. He just depends on what was told to him by third parties. Consequently he has been draught plans and specifications based on dimensions smaller than the actual dimensions of the site.This is another case that involve architect as professional in construction project. In this case, architect failed in carrying out their task which is fails in assessing and measuring a site. Basically, as referred to this case, architect was found bloodguilty and negligent because they do not do their strain effectively and only referring to the third party to get information to draw the plains and specification. It shows that, architect that involved in that project do make any effort to get information and not carrying out their task earnestly.As what been discussed above, it shows that engineer, architect and any other professional were found guilty in carrying their task. As a professional, they are the person who can take responsibility in being project manager. As they failed to perform their duties, they might face the problem once they being a project manager. However, it can be done by studying project management before they come into project manager world. It can reduce the probability to give high risk in negligence during the construction project or after the project completed.There are other cases that relates to inadequate supervision which are Jameson v. Simon Leicester Guardians v. Trollope Clay v. A.J. Crump Sons Ltd.(a) Jameson v. SimonRegarding on this case, architect was held negligent in failing to inspect work efficiently. In order to certify that the work had been executed according to the contract, supervision by architect required. However, in this case architect failed to inspect the bottoming of the cement floor of a house either before or at the time the floor was laid. The bottoming was subsequently found to consist of waste material and to be the cause of dry rot. There was an evidence to show that architect had done his supervision by tour site in average once a week. architect also had given as much supervision and inspection as i t was popular to give according to the practice of architects. But that practice was insufficient to justify the architect for failure to inspect so important a part of the work.(b) Leicester Guardians v. TrollopeRegarding on this case, by referring to Jackson and Powell (1992) stated that architect was held negligent in failing to supervise the laying of concrete. He had contended that it was for the clerk of works to supervise it. Channel J. rejected the contention, considering that the laying of the concrete was a very important matter since a large area had to be covered. He act if the architect had taken steps to see that the first block was all right, and had then told the clerk of works that the work in the others was to be carried out in the same way. I would have been inclined to hold that the architect had done his duty, but in fact he did nothing to see that the design was complied with. In my view this was not a matter of decimal point which could be left with the cl erk of works.(c) Clay v. A.J. Crump Sons LtdThis case is about architect was requested by the employer to consider whether it was safe to leave standing(a) a wall which subsequently collapsed.Architects duty to the employer may require him to consider and advice upon the need for precautions. (Jackson Powell,1992).Architect as a project manager also has duty to warn any probabilities for problem to come out in order to protect employers interest and successfully completed.2.4.4 Negligence in selecting contractorsJackson and Powell (1992) stated one point of negligence which is failure to take reasonable steps in selecting contractors.The exercise of reasonable care and skill may require an architect to make reasonable enquiries as to the solvency and capabilities of contractors including nominated sub-contractors in circumstances where he is responsible for their recommendation. An architect was held negligent in failing to put the work of converting a house out to competitive br otherly in Hutchinson v. Harris. Similarly he should take care when examining the amounts of quotations, not to accept rates which are unreasonable in the circumstances. Valerie Pratt vs. George J. Hill Associated. There is one case about the negligence in giving recommendation or can be said as wrong statement given by professional. That case is Valerie Pratt vs. George J. Hill Associated. This case involves the architect who advised his client that one contractor company is very reliable in performing construction work and based on advice (recommendations) given by architect, the contractor has been appointed by his client. However, then the contractor can not be trusted and work performance by that contractor is very bad. The court found that the architect had violated his duties (duties) to advice, that he was doing wrong statement to his client.In this case, the architect liable in giving advises to the client to choose the connected contractor to complete the job properly. Ho wever, architect that act as project manager need to advises the client and recommend the client the best contractor to complete the job but in this case, architect had been judge as doing wrong statement by giving bad recommendation to the client. Architect should investigate the background of the contractor in order to carrying out the task given and not simply choose the contractor by not knowing their experience in construction industry. As a result, project manager need to blame on this matter because they owed the duty of care to the client and not performing their duty efficiently.There is another case where architect or engineer owes a duty of care and have liability for materials in project. As what James M. F. (2002) stated in his book, if the materials selected by the employer without reference to the architect or engineer then the only duty imposed upon the architect or engineer is a duty to warn of any defects in the materials known to him.2.4.5 Negligence in advising o n the suitable contractAs a project manager, it is an obligation of project manager in considering the terms of contract and chooses the best contract for client.The exercise of reasonable care and skill may require the architect to advise the employer to reject a particular form of contract or a particular term if disadvantageous to the employers interests, or to refuse to nominate a particular sub-contractor unless he is prepared to guarantee or warrant to the employer the quality or fitness of certain work and materials. (Jackson and Powell, 1992)2.4.6 Negligence in administering building contractAs what been stated by Jackson and Powell (1992), there is a case which is Wilks v. Thingoe (Suffolk) R.D.C. where an architect was held negligent. It is because architect was negligence in having embarked on a endure of extravagant expenditure without his employers authority. The position of the architect under the JCT Standard bring of Building contract (1963 edition, July 1971 revis ion) was recently considered, mainly from the standpoint of its contractual consequences as between employer and contractor, in London Borough of Merton v. Stanley Hugh Leach Ltd. Vinelott J. stated under the standard conditions the architect acts as the servant or agent of the building possessor in supplying the contractor with the necessary drawings, instructions, levels and the like and in supervising the progress of the work and in ensuring that it is properly carried out. He will of demarcation normally though not invariably have been responsible for the design of the work To the extent that the architect performs these duties the building owner contracts with the contractor that the architect will perform them with reasonable diligence and with reasonable skill and care. The contract also, confers on the architect discretionary powers which he must exercise with due regard to the interests of the contractor and the building owner. The building owner does not undertake that t he architect will exercise his discretionary powers reasonably he undertakes that although the architect may be engaged or employed by him will leave him free to exercise his discretions fairly and without improper interference by him.2.2 The Causes of Project Managers NegligenceProject managers negligence in construction must leave impacts once it happened against project whether towards the project or parties involved such as workers. However, the causes of project managers negligence will be find out in order to prevent any other project manager from repeating same mistakes in future.As a project manager, they are the best person chosen by client to handle the project successfully. They have capability and expertise in conducting a project is the reasons wherefore client had high expectation towards project manager. However, project manager is divergent between each other. They studied project management but having different background, experience, level of capability, attitude and etc that bringing different way or genius in handling the project. Tunner and Muller (2006) have also shown that a project managers success at managing his or her project is dependent on their competence, peculiarly their leadership style comprising emotional intelligence, management focus and intellect.As what Badawy M. K. (1988) stated where project manager requires a high degree of flexibility and adaptability, aggressiveness, persuasiveness, superb confabulation skills, an ability to deal with conflict and to function well within a highly ambiguous environment and ill-defined organizational relationships. This is not easy task because project managers task is a complex one. Furthermore, he also stated that the primary problems of project management are not technical because they are human. It follows that the ratio of project success as well as efficiency and effectiveness of resources utilization will be significantly enhanced if management can do a better job in re cruiting, selecting, training, and developing managerial skills of project managers. The causes of project failure can be numerous. However, the core reason for project failure usually is not limited resources but incompetent project managers. Projects fail because managers fail.Project Managers negligence comes from the project managers itself. Project manager have responsibilities in carrying out the task and ensure all the works being completed efficiently. In order to make the projects flow smoothly, project managers must have ability in solving the problems during the construction stage and well-trained in project management. Poor project manager will overemphasis of technical skills as prerequisite for selection to project management positions as what been stated by Badawy M. K. (1988).In managing the projects, it is not only on technical skills as what statement given. It is about soft skills that project manager had in order to deal with people in construction project. If pr oject manager failed to deal with parties involved in the construction project, the probabilities of project managers negligence is higher. As project manager, they need high interpersonal skills and superb communication skills in being a good project manager. These skills are important to avoid project managers negligence in construction project such as miscommunication in giving instruction and others. Lack of communication also is one of the causes of project managers negligence as communication is very important in conducting, directing, organizing and etc to make the instruction or information were intelligibly given and understood.1. Inappropriate adviceThere is another cause of project managers negligence in construction which is failed to advice his client in appropriate way. There is the case where project manager is wrongdoer because has advise their client without record it in writing. This case clearly shown the caus