Concurrent delay is usually considered in the context of extension of time (“EOT”) to complete construction works. In RC Asia Engineering Sdn Bhd v Lion Pacific Sdn Bhd [2021] 1 LNS 1667 however, the High Court had occasion to consider concurrent delay – or overlapping delay – in the assessment of reasonable time to complete such works.
The issues that can be gleaned from RC Asia and elaborated below are:
a) approach to determining reasonable time;
b) overlapping delay vs concurrent delay;
c) treatment of overlapping delay in assessing reasonable time; and
d) application of the common sense approach to causation.
Summary
The Plaintiff was a subcontractor appointed by the Defendant main contractor (see paras 13, 14).
The Plaintiff’s works were originally required (under the subcontract) to be completed by 15 August 2016, but was actually completed only on 30 April 2017 (see paras 24, 34).
Among the claims and counterclaims put forward in the court action were (i) the Plaintiff’s claim for prolongation costs; and (ii) the Defendant’s counterclaim for liquidated damages and general damages due to delay in completing the works (see paras 4, 5).
In its grounds of judgment, the High Court first found that time was set at large by the Defendant’s acts of prevention and therefore the Plaintiff was only obliged to complete its works within reasonable time (see para 45). As a result of time being set at large, liquidated damages is no longer claimable (see paras 70, 71).
Next, the High Court proceeded to determine (i) what was a reasonable time for the Plaintiff to complete its works; and (ii) whether the Plaintiff did in fact complete within such time.
In the end, the High Court found that 30 April 2017 was a reasonable time for works completion, and the Plaintiff did complete by that time (see paras 59, 34).
Consequently, the High Court dismissed the Defendant’s counterclaim for general damages for late completion (para 72).
Approach to Determining Reasonable Time
To determine what is a reasonable time to complete the works, the High Court held that a just and equitable common sense approach is sufficient. In contrast, determining EOT require delay criticality and efficacy to be established systematically and methodically, and further taking into account any conditions precedent and qualifications imposed by the contract. See para 58.
In line with the above approach, the High Court determined reasonable time to be 30 April 2017 based on the evidence of lay witnesses, without any expert delay or critical path analysis (see paras 59, 8. 9).
In comparison, the High Court in Ong Saut Mee v Gasing Meridian Sdn Bhd [2021] 5 CLJ 249 held that a delay analysis by an expert is required to establish cause and effect in a logical and methodical way for the purposes of EOT. The defendant’s attempt to prove his EOT entitlement through lay witnesses was an impressionistic rather than a calculated assessment, and was not acceptable (see Ong Saut Mee, paras 73 – 76).
Overlapping Delay vs Concurrent Delay
The High Court appears to draw a distinction between concurrent delay and overlapping delay (see para 56):
a) For “concurrent delay”, reference is made to the definition by John Marrin QC in his article “Concurrent Delay”. (Although not expressly set out in the grounds of judgment, John Marrin QC’s said definition is oft quoted as “… a period of project overrun which is caused by two or more effective causes of delay which are of equal causative potency”)
b) “Overlapping delay” is ascribed to the situation where two or more delay events arise at different times but the effects of which are felt at the same
c) Overlapping delay is not necessarily concurrent delay (although the High Court did not elaborate further on this).
It is to be noted that the “overlapping delay” situation described above is referred to as the common usage of “concurrent delay” by the Society of Construction Law Delay and Disruption Protocol (2nd ed, 2017) (the “SCL Protocol”), at para 10.4.
Treatment of Overlapping Delay in Assessing Reasonable Time
I shall adopt the following terminology from the SCL Protocol:
a) “Employer Risk Event” shall mean an event or cause of delay which under the contract is at the risk / responsibility of the employer, and which therefore gives rise to EOT entitlement.
b) “Contractor Risk Event” shall mean an event or cause of delay which under the contract is at the risk / responsibility of the contractor, and which therefore does not gives rise to any EOT entitlement.
Overlapping delay is given the same treatment as concurrent delay, i.e. where delay is caused by an Employer Risk Event and a Contractor Risk Event, the contractor is still entitled to full EOT (see para 57).
This means that “reasonable time” will not be shortened where there is overlapping delay, as shown by the following findings of the High Court:
a) After 31 January 2017, both parties were jointly responsible for late completion due to overlapping delay caused by them until completion was achieved on 30 April 2017 (see para 56).
b) Notwithstanding the overlapping delay, a reasonable time to complete the works is on 30 April 2017 (see para 59).
Application of the Common Sense Approach to Causation
The High Court found that there were overlapping delays caused by both parties to the progress of the works from January 2017 until completion on 30 Apr 2017 based on (see paras 55, 30, 33):
- 18, 20 February – Defendant suspended drilling of guard rail holes
- 1 March – Defendant revised design of guard rail joints
- 28 March – Defendant instructed works due to said revised design
- late January, February – Plaintiff had to re-do unsatisfactory track ballasting work
- inaccurate survey data
The above approach is instructive in that the overlapping delay events were considered perhaps in a “global” manner, without ascertaining the detailed effect of each delay event (eg. no. of days delay). This ties in with the “just and equitable common sense approach” referred to earlier above.
Conclusion
RC Asia is notable for its introduction of the term “overlapping delay” and giving it the same treatment as concurrent delay when assessing reasonable time.
For more on concurrent delay, see here and here.
The contents of this article are published for the purpose of general information only; they are not to be regarded, used or relied on as legal advice for any matter. Please contact us if you require legal advice specific to your case.