Driver Trett Digest Issue 21 03.2021 - Flipbook - Page 43
DIGEST | ISSUE 21
MITIGATION
It should also be noted that a contractor has a duty to
mitigate its damages and hence find alternative uses for
Idling Plant where available. In the Phoenix Bridge11 case
it was highlighted that if a contractor can hire or use Idling
Plant during a delay period and elects not to do so, it would
then be difficult to recover damages based on a hire value.
EQUIPMENT RATE MANUALS
There are popular equipment rate manuals available for
reference such as the RICS Schedule and AGC12 Equipment
Cost Guide. Anyone using such manuals should thoroughly
read and understand the manuals when using them to assist
in calculating the components relating to Plant ownership
rate and/or a hire rate and determining Plant operating costs.
However, the application of published guides is limited to a
pricing exercise and is not always appropriate for a damages
assessment for costs of delay.
CONCLUSION
In order to succeed with a claim for Idling Owned-Plant
based on hire value, a contractor will need to be able to:
1.
2.
Prove that the Idling Owned-Plant could have been hired
out, or that it would have been used on other work but
for delay; and
Show that a reasonable hire rate has been demonstrated.
It is not usually appropriate to simply use commercial pricing
sources as proof of loss. It is necessary to demonstrate the
actual loss which, more often than not, will comprise actual
recorded items such as depreciation and finance related
costs.
1.
Plant as used by the builder or contractor in construction
work may be divided into two classes: 1. Small and nonmechanical plant and tools 2. Power-driven mechanical
plant, which consists of such plant as lorries, backhoe
loaders, concrete mixers, compressors, cranes, excavators,
dumpers, tractors, rollers, etc.
2. FIDIC Sub-Cl.1.1.4.3
3. Bailey, Julian. Construction Law 11.131
4. Alfred McAlpine Homes North Ltd v Property & Land
Contractors Ltd (1995) 76 BLR 59.
5. 1980 Edition, clause 26.
6. Sunley & Co Ltd v Cunard White Star Ltd [1940] 1 K.B. 740.
7. Converse et al. v. U.S
8. Cotton et al. v. U.S.
9. Bahen & Wright, Inc. v. United States, 94 C. Cls. 356, 360,
361, 365
10. Laburnum Construction Corporation (1964) 163 Ct. Cl. 339.
11. Phoenix Bridge Co. v. United States, 86 C. Cls. 603, 631
12. The associated General Contractors of America Contractors
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