“fit for the purpose”It is a known fact that during the last decade, the use of design and build project delivery method in the Middle East, especially in Dubai had greatly increased. In design and build approach, owner selects a Contractor to design and build the required project. With the traditional project delivery method, owner or developer selects an Architect or an Engineer to design the project and subsequently chose a Contractor by negotiating or by competitive tendering for execution and completion. In more general terms with the traditional method the Contractor offers a bid price for what Client specified whereas in design and build approach Clients has to accept what Contractor offers within his given parameters. The essence of the design and build contracting is to transfer the risks of design development, both in time and cost, from the Employer to the Contractor.If the Client needs to construct dual carriageway say from Dubai to Muscat, with the design and build approach, the Client requires preparing his “Statement of Employer’s Requirements” and the Contractor decides how to achieve the milestones specified by the Client. Client also needs to address the finance requirements such as investors, borrowings, owner paying or operating and recovering at the end by public – private partnering mechanisms. The most common advantage on design and build method is it overlaps the design phase with the construction and thereby reducing the delivery time significantly. It also provides more closer working atmosphere with the design team and the construction team, facilitating creative problem solving environment for successful completion of projects. Minimized Client’s involvement with single entity and less complains on design errors and changes are enhancing the chances of achieving an accelerated completion than the traditional approach. Today the term “design” is entirely taken away from modern forms of contract and replaced with “package” or “turnkey” term. In construction industry the word “design” has merely less precise meaning. It is a process of planning of the construction activitis till the successful completion and handing over the project. No contract can provide 100 % designed details, for an example, precise positions of traffic signs, duct crossings, lamp post or asphalt mix, cannot define at the beginning of the infrastructure contracts. Such operations involve considerable element of design, which is left to the Contractor. In addition to that quality of work, workmanship and maintaining their standards shall be reasonably fit for their purpose though it is not fully specified. In other words, the Contractor is responsible for elements of the design left to him (Young & Marten v McManus Childs (1969)).

As a common practice Contractors always retain certain level and choice in regard to unspecified components in design for their choice and economical execution and for better returns. But in principle the entire design responsibility should be on the basis of fitness for purpose. If you purchase any good from the market you are entitled to enjoy the benefit and it should fit for its purpose. Similarly, in construction industry series of tests have been carried out to extend the principle of “fit for the purpose”. Design and build contracts can impose a higher standard than reasonable skill and care. This obligation resembles the seller’s duty to supply goods which reasonably fit for their intended purpose. In the case of Viking Grain v PH White (1985) court found that White was liable for failing to provide stores for grain handling and fit for its purpose. In some contracts such obligations of the designer will be found limited to reasonable skill and care.

In the case of Newham LBC v Taylor Woodrow (1981), Newham clamed damages due to partial collapse of multi storey residential block at Ronan Point UK, under three grounds, negligence in design, negligence in construction and failed to provide a building fit for its purpose, it was held that Taylor Woodrow was not guilty in negligence in design and build, but liable for failing to provide a building to fit for its purpose. In Independent Broadcasting Authority v Emley Moor and BICC (1980) held that Emley Moor was liable for failing to provide a TV mast for its purpose. There are situations which the court will find the parties indented a different standard of duty. Where the designer is employed by the Contractor who is himself liable for the fitness for the purpose of the works, the law may impose a higher duty. In Greaves Contractors v Baynham Meikle (1975) held that the designer was liable for failing to design the structure of a building known to be subjected to vibrating loads. The floors were not adequately designed to resist the vibration generated from fork lifts. The courts found that the designer had not failed to design the floor with reasonable skill and care, but held there to be an implied term of his engagement that the building would fit for its purpose and held that the designer was guilty. In Gloucestershire County Council v Richardson (1968) the House of Lords were faced with a similar situation in relation to defective columns. The supplier was nominated by the Employer, but in this case the Employer imposed the terms of sub-contract between the Contractor and his supplier which excluded all liability on the supplier’s part for deficiency or lack of quality, unless a claim was made within 24 hours. This was sufficient to exclude the implication of either of the two terms, that is fitness for purpose and merchantable quality.In University of Warwick v Sir Robert McAlpine (1988), the University Employer instructed the Contractor McAlpine to employ CCL to form remedial works using a new method of tiling adhesion, which the architects had recommended after a trial scheme. CCL were not formally nominated as sub Contractors. McAlpine had misgivings about the process and obtained an indemnity from CCL. The adhesion failed and Garland J held that "there can be no implication of the warranty of fitness because there was no reliance on McAlpine".Today world, developing cities spending billion dollars to improve their transport, rail system, road network, other infrastructure and services with most sophisticated modern technologies to find solutions for their traffic problems which have significant impact on economy. Traffic congestion means delay, and delay means waste of time, which means waste of money and a negative impact on economic development. If the solution is a new scheme or a proposal (such as new roads, rails or boat services or other means) and upon completion of such, where the problem still remains unchanged or if it does not serve the purpose made for, who is liable?

Piyal RathnayakeHanscomb Consultant Inc.