Construction Law Reporting - Essay Example

Construction law 0 1 This is a report giving responses and recommendation from the findings of an investigation into the death of a trainee. The trainee fell of a scaffold working after hours alone in the swimming pool area. This case is under contract and construction law. 1.2 A contract is a law-enforced exchange of words or agreements between two parties and it is legal. A contract is Latin for pacta sunt servanda (literally, promises must be kept) and breach of contract is under anticipation by the law and there are remedies. Contracts vary with their importance, in case it is buying a house, the contract has to be in writing, but in sale of small items, it is oral. 1.3 This law stands out from the other laws because it is sensitive. In construction and contract laws, claims and counter claims are the way that the employer and the contractor understand one another. Claim that is assertion for more funds towards a project, due to extension time for completion is under application by contractual arbitrators in engineering and construction law. This is a sensitive law because it has unforeseen shortcomings which have to be prepared for in advance. In order to understand the importance of this law one has to understand the principles involved in contract and construction law. 1.4 This law causes conflicts, however, the construction industry believes in solving disputes in a medical approach. This approach involves identifying the problem in the first place, then dealing with the problem. Every construction worker knows it is their personal obligation to keep everyone happy by opening up about any conflicts. Introduction 2.0 Construction and contract law 3.0 Dispute resolution in construction 4.0 Conclusion 5.0 Recommendation 6.0 Bibliography 7.0 2.0 Introduction 2.1This report is necessary to help the sub-contractors to Mekeng Company avert any further accidents that could lead to loss of human life. Interrelation between the contractors, sub-contractors and the employer is important in creating a good working environment. After the investigation into the scaffolding accident, the findings prove that more employees are less equipped to deal with heights and there is danger of another accident happening unless something is under change. 2.2 Although the employer is at fault, the ignorance of the employee is also to blame in trying to deal with an area n he was not an expert. The center for occupational safety and health administration (OSHA) requires that before the employer sends the employee off to work, they have adequate training to deal with the hazards in their line of duty. It is also OSHA’s principle that certain risky jobs are for those certified and specially qualified employees. In this case, the ignorance of this aspect has been going on for a long time as the investigation gathers. OSHA states that training an employee effectively is more of an asset rather than an expense. 2.3 In order for this case to die out, the sub-contractors have a right to claim from the employer. A sub-contractor is a party willing to share or take up all obligations of another party under one ultimate employer. Therefore, if the company claims unforeseen circumstances under the contract, the employer and other contractors may find a remedy for the company. In order to understand this, an understanding of construction and contract law has to be present. 3.0 Construction and contract law 3.1 This law stands out from the other laws because it is sensitive. In construction and contract laws, claims and counter claims are the way that the employer and the contractor understand one another. Claim that is assertion for more funds towards a project, due to extension time for completion is under application by contractual arbitrators in engineering and construction law. This is a sensitive law because it has unforeseen shortcomings which have to be prepared for in advance. In order to understand the importance of this law one has to understand the principles involved in contract and construction law. 3.2 Claims in this kind of law have several sources the first, which is the changing of the conditions. This is whereby the physical site is different in geographic value from what is under representation in the contract including unforeseen obstacles. The second cause for the rise of these disputes is due to additional work unlike stipulations by the contract. This is where the parties fail to agree on the pricing or type of work that they should be doing therefore causing bad blood between employer and the contractor. If the contractor delays due to factors beyond their control, which at times is the employers fault, the contractor has a claim. Disputes also come up due to the change in contract time or additional of work without a corresponding time added. 3.3 The uniqueness of the contract statement is that it gives a remedy for every contract in case there is a breach. Parties undertaking the contract have to know the contract and its remedies for a good working relationship. If the parties ignore these remedies, the relationship between the contractors and the employer is then chaotic and violent since no solutions agreed upon if one party feels oppressed. Contract law is essential in that it seeks to improve the relationship between the employer and the contractor in a peaceful manner. 3.4 In this kind of law, unforeseen claims or obstacles often rise. It is wise to learn how to deal with this claims, one of the methods the employer does this is through counterclaiming. A counter claim is an assertion by the responding party to the claiming party proving or giving information that the claim made is useless or nullified. This method of counter claiming is not necessarily a defense mechanism rather it is applicable in reviving an independent action grounded by the claimant. 3.5 Claims vary in contract and construction law; a claim due to a connection with the contract. This is where the claimant is not under the remedies of the contract and they need to invoke the applicable law in getting the remedy. A good example of this is a breach of contract. In the English law, this would lie under the principles of governing damages. Unless excluded by the contract, the remedy for such a claim is consequential damages especially from the time of contracting. If the innocent party were under adverse effect, this would lead to repudiation of the contract as the remedy to the innocent party. 3.6 The second type of claim is one carried out under the contract. This stipulates that should any event occur, both parties find the remedy of this under the respective clauses in the contract. For example, a member of any party is entitled to a remedy if any event stipulated in the contract occurs. If the event is in a breach of the contract, the party breaching should pay a cash sum. 3.7 The other claim arises where there is no contract between two parties and if any is in existence, it is void. This claim has basis on the principle that one has a right to receive pay for services lendered and work done. This claim, known as quantum meruit in legal systems is often under equation as undue enrichment. The principles of this claim are also under application where work was in completion, but no price had been set for the price. If the claim succeeds, the court assesses the work done and gives a value for the claimant to receive. An example where this principle was under application is the case of Constable Hart & Co. Ltd v. Peter Lind & Co. Ltd. 3.8 In the other claim, the claimant uses the applicable law to make the claim. This leads to a claim under the law of tort as the claim arises from the principles of the applicable law. If the claim is successful under this claim, the remedy is an award of the general damages and the amount of being dependent on the particular circumstances of the case. This is because the law governing a claim is not necessarily the same law governing the contract. Unless the claim is set amicably, the remedy for the claims discussed above could be litigation or arbitration. 4.0 Dispute resolution in construction 4.1 Mark Appel, the senior vice president of the arbitration committee, once gave a statement that sounded like an indictment but he was merely speaking sense. He said that the construction company is the one that appreciated the work of the majority population. In England, construction brings about ten percent of the gross domestic product. This field experiences many disagreements of different magnitudes and complexities. A contemporary construction site requires integration of many systems and they all have to be working in synchronization in order for the whole system to be effective. 4.2 Lack of effective conflict resolution in construction sites is expensive with tangible and intangible expenses. The tangible expenses include the cost of going to court and the amount involved in resolving the conflict. Due to the knowledge of these facts, the construction company has come up with efficient conflict resolution methods that aid in preventing disputes and resolving them. The construction industry is presently the cutting edge in conflict resolution due to the two-decade improvement. 4.3 The construction industry believes in solving disputes in a medical approach. This approach involves identifying the problem in the first place, then dealing with the problem. Every construction worker knows it is their duty to resolve their personal conflicts. This method of resolving conflicts is cost effective since the problem is in the early stages and this report gives a proposal on how to resolve any conflict with a neutral advisor. 4.4 Highlights of the conflict resolutions used by the construction industry are under explanation below; step negotiation is the first, which involves the parties involved in the conflict negotiating directly within a premeditated amount of time failure to reach a neutral goal the conflict moves to the next higher level. The other method is mediation, which involves a neutral person facilitating the talks between the conflicting parties. 4.5 Dispute review boards also work in conflict resolution whereby they consist of three neutral experts that visit the center occasionally to monitor the problems. This board also listens to potential disputes at the request of the people and offer advice on the best method for resolution. The last method used by the construction industry is arbitration whereby the conflicting parties give their opinions and feelings then an impartial third party offers the final opinion. 4.6 The fact that some disputes keep prevailing means the methods used are not good enough for conflict resolution rather they just help during the urgency of the moment. The addressing of these disputes depends on specifying a resolution method for the victims therefore proving that these methods do not consider the nature of the disputes. After the resolution period is over, parties always grow apart proving that these methods are only effective in the short term. 4.7 An active and effective system would ensure that in addition to solving the conflict it also prevents these disputes from happening. This method should also be flexible enough to offer several methods of resolving the conflict and at the same time being the least invasive. Such a system would be time saving and very effective in this case in order to prevent litigation. The money previously spent in resolving industry conflicts would be under diverse development projects. 5.0 Conclusion 5.1 In Florida, construction accidents are common and some that they face are; falling from buildings and scaffoldings, equipment failures, crane accidents, chemical exposure and welding urns among others. Since the injuries are serious and sometimes fatal, the lawyers in California work at getting compensation for the workers after ascertaining that they are not guilty of these accidents. Only the victims of negligence are under compensation by their company. 5.2 In this case, the fault was ignorance by the trainee, but the subcontractor also participated by letting someone not professionally trained get on scaffolding. According to OSHA that is a violation of the safety act and is punishable by prison time or a fine but the charge of manslaughter is too harsh for the company. When getting into the sub-contract, the contractors and the employer did not check for the qualification of the sub-contractors workers. The fault of the risk spread across the whole construction, the contractors and the employers too. It is the responsibility of the employer to watch over the employees during the working hours. The trainee that died was working past regular hours when he died. The employer therefore denies all responsibility for the death of the trainee. 6.0 Recommendations 6.1 The death of the trainee is bound to bring a lot of tension in the construction company. The report stipulates clearly how to deal with conflicts in the work place. In order to avoid the litigation, the contractors and employers should attempt to settle the issue internally, which is better than going to court and trying to charge the company with charges that cannot stick. There has to be a mediator to help the three parties sort out their differences. 6.2 The next recommendation is for mekeng to let the sub-contracted company go through dissolving the contract. The company breached the contract by breaking the law and any claim they make they are likely to lose. They should pay the damages for mekeng and the employer for introducing unprofessional workers in a risky position. 6.3 Mekeng Construction Company should also carry out a survey of their workers to ensure that all their employees are well qualified to work in risky situations. They should also introduce a rule that workers in risky positions should work in presence of people due to avoiding these accidents. 7.0 Bibliography STEINWAY, D. M. (2011). Environmental Law Handbook. Lanham, Rowman & Littlefield Pub. Group. http://public.eblib.com/EBLPublic/PublicView.do?ptiID=772651. CLARKSON, K. W., & CLARKSON-MILLER-JENTZ-CROSS. (2005). Wests business law: text and cases ; legal, ethical, international, and e-commerce environment. Mason, Ohio [u.a.], Thomson West. Read More