Contractor's implied duty to warn design defects

In Malaysian construction industry, traditional procurement method is the most common method of procuring a project. In this method, the client contracts with consultants, and has another separate contract with the contractor. Consultants will prepare building designs in accordance to their expertis...

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Main Author:	Gan, Gilbert Siang Yang
Format:	Thesis
Language:	English
Published:	2015
Subjects:	TH Building construction
Online Access:	http://eprints.utm.my/id/eprint/48877/25/GilbertGanSiangMFAB2015.pdf
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id	my-utm-ep.48877
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spelling	my-utm-ep.488772020-07-05T02:53:28Z Contractor's implied duty to warn design defects 2015-01 Gan, Gilbert Siang Yang TH Building construction In Malaysian construction industry, traditional procurement method is the most common method of procuring a project. In this method, the client contracts with consultants, and has another separate contract with the contractor. Consultants will prepare building designs in accordance to their expertise. Meanwhile contractor will contract with the client to construct the building based on designs given. However, human made mistakes happen, where design defects exist in consultants’ design. Contractor during construction may discover design defects. But sadly, many contractors have a mindset that they are only contracted to construct, and any design defects is not their concern. Some may even intentionally keep silent about the discovery, so that they are able to claim for variation order for when rectification works are required to heal the problem caused by the design defect. Thus, the objective of this study is to identify whether contractor has the implied duty to warn design defects. The research methodology undertaken is by documentary analysis of law cases reported in law journals. The research have identified relevant clauses in the standard forms of contracts, and also eleven law cases related to contractor’s duty to warn design defects. The findings of the analysis are: Contractor owes duty of care to his client. He is expected to warn client of design defect if a reasonably competent contractor would have noticed it and highlight it to his client. Lastly, even if contractor has raised the discovery to his client or contract administrator and was instructed to continue to construct, the contractor will still be liable, as mere discussion of the risk will not release contractor from being responsible. Contractor should take formal and further steps to warn about the perceived dangers and even refusal to carry out the works. 2015-01 Thesis http://eprints.utm.my/id/eprint/48877/ http://eprints.utm.my/id/eprint/48877/25/GilbertGanSiangMFAB2015.pdf application/pdf en public http://dms.library.utm.my:8080/vital/access/manager/Repository/vital:87877 masters Universiti Teknologi Malaysia, Faculty of Built Environment Faculty of Built Environment
institution	Universiti Teknologi Malaysia
collection	UTM Institutional Repository
language	English
topic	TH Building construction
spellingShingle	TH Building construction Gan, Gilbert Siang Yang Contractor's implied duty to warn design defects
description	In Malaysian construction industry, traditional procurement method is the most common method of procuring a project. In this method, the client contracts with consultants, and has another separate contract with the contractor. Consultants will prepare building designs in accordance to their expertise. Meanwhile contractor will contract with the client to construct the building based on designs given. However, human made mistakes happen, where design defects exist in consultants’ design. Contractor during construction may discover design defects. But sadly, many contractors have a mindset that they are only contracted to construct, and any design defects is not their concern. Some may even intentionally keep silent about the discovery, so that they are able to claim for variation order for when rectification works are required to heal the problem caused by the design defect. Thus, the objective of this study is to identify whether contractor has the implied duty to warn design defects. The research methodology undertaken is by documentary analysis of law cases reported in law journals. The research have identified relevant clauses in the standard forms of contracts, and also eleven law cases related to contractor’s duty to warn design defects. The findings of the analysis are: Contractor owes duty of care to his client. He is expected to warn client of design defect if a reasonably competent contractor would have noticed it and highlight it to his client. Lastly, even if contractor has raised the discovery to his client or contract administrator and was instructed to continue to construct, the contractor will still be liable, as mere discussion of the risk will not release contractor from being responsible. Contractor should take formal and further steps to warn about the perceived dangers and even refusal to carry out the works.
format	Thesis
qualification_level	Master's degree
author	Gan, Gilbert Siang Yang
author_facet	Gan, Gilbert Siang Yang
author_sort	Gan, Gilbert Siang Yang
title	Contractor's implied duty to warn design defects
title_short	Contractor's implied duty to warn design defects
title_full	Contractor's implied duty to warn design defects
title_fullStr	Contractor's implied duty to warn design defects
title_full_unstemmed	Contractor's implied duty to warn design defects
title_sort	contractor's implied duty to warn design defects
granting_institution	Universiti Teknologi Malaysia, Faculty of Built Environment
granting_department	Faculty of Built Environment
publishDate	2015
url	http://eprints.utm.my/id/eprint/48877/25/GilbertGanSiangMFAB2015.pdf
_version_	1747817493576024064

Contractor's implied duty to warn design defects

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