Recent Developments in the Law of Torts in Northern Ireland Annual Conference of the Irish Association of Law Teachers

This paper reviews decisions from the Northern Ireland and England and Wales High Courts and Courts of Appeal as well as the UK Supreme Court relating to tort and principally to the tort of negligence in the past 12 months or so.

In structure, the paper will be presented in four parts. First, three preliminary points relating to contemporary features of the NI civil courts: personal litigants – Devine v McAteer [2012] NICA 30 (7 September 2012); pre-action protocols – Monaghan v Graham [2013] NIQB 53 (3 May 2013); and the rise of alternative dispute resolution. On the last named issue, the recent decision of PGF II SA v OMFS Company 1 Ltd [2013] EWCA Civ 1288 (23 October 2013) on unreasonable refusal to mediate, will be discussed.

Second, the paper moves to consider the law of negligence generally and case law from the NI High Court reiterating Lord Hoffmann’s view in Tomlinson v Congleton Borough Council [2004] 1 AC 46 that no duty of care arises from obvious risks of injury. In this, reference will be made to the application of the above “Hoffmann principle” in West Sussex County Council v Pierce [2013] EWCA Civ 1230 (16 October 2013), which concerned an accident sustained by a child at school. A similar set of facts was presented recently to the UK Supreme Court in Woodland v Essex County Council [2013] UKSC 66 (23 October 2013). The decision there, on non-delegable duties of care, will have a significant impact for schools in the provision of extracurricular activities.

Third, I will review a NI case of note on the duty of care of solicitors in the context of professional negligence in the context of conflicting advice by counsel.

Fourth, I will examine a series of cases on employer liability and including issues such as the duty of care towards the volunteer worker; tort and safety at work principles generally; and, more specifically, the duty of care of the employer towards an employee who suffers psychiatric illness as a result of stress and/or harassment at work. On the issue of workplace stress, the NI courts have made extensive reference to the Hale LJ principles found in the Court of Appeal decision of Hatton v Sutherland [2002] 1 All ER 1 and applied to those who have suffered trauma in reporting on or policing “the troubles” in Northern Ireland. On the issue of statutory harassment at work, the paper will also mention the UK Supreme Court’s decision in Hayes v Willoughby [2013] UKSC 17 (20 March 2013).

Early Implementation of BIM into a Cold-Formed Steel Design/ Fabricator and an Architectural/Planning Consultancy

There is a broad consensus surrounding the ability of building information modelling (BIM) to positively impact a project by enabling greater collaboration. This paper aims to examine the development of BIM and how it can contribute to the evermore present and growing cold-formed steel (CFS) industry. This is achieved thorough a comprehensive literature review and four exploratory interviews with industry experts. Work has been carried out, for the first time, alongside one of the UK’s largest CFS Designer/Fabricators in conjunction with Northern Ireland’s leading Architectural and Town Planning Consultants in the identification and dissemination of information. The capabilities of BIM have been investigated through modeling of simple CFS structures n consultation with the project partners. By scrutinising the literature and associated interviews, the primary opportunities, as well as barriers, of BIM implementation have been investigated in the context of these companies. It is essential to develop greater understanding of the flexibility, adaptability and interoperability of BIM software as the UK construction industry faces a daunting challenge; fully collaborative 3D BIM as required by the UK Government under the “Government Construction Strategy” by 2016 in all public sector projects. This paper, and the wider study that it stems from, approaches the problem from a new angle, from sections of the construction industry that have not yet fully embedded BIM.

Confined Site Construction: A qualitative investigation of critical issues affecting management of Health and Safety

The construction industry is inherently risky, with a significant number of accidents and disasters occurring, particularly on confined construction sites. This research investigates and identifies the various issues affecting successful management of health and safety in confined construction sites. The rationale is that identifying the issues would assist the management of health and safety particularly in inner city centres which are mostly confined sites. Using empiricism epistemology, the methodology was based on qualitative research approach by means of multiple case studies in three different geographical locations of Ireland, UK and USA. Data on each case study were collected through individual interviews and focus group discussion with project participants. The findings suggest that three core issues are the underlying factors affecting management of health and safety on confined construction sites. It include, (i) lack of space, (ii) problem of co-ordination and management of site personnel, and (iii) overcrowding of workplace. The implication of this is that project teams and their organisations should see project processes from a holistic point of view, as a unified single system, where quick intervention in solving a particular issue should be the norm, so as not to adversely affect interrelated sequence of events in project operations. Proactive strategies should be devised to mitigate these issues and may include detail project programming, space management, effective constructability review and efficient co-ordination of personnel, plant and materials among others. The value of this research is to aid management and operation of brownfield sites by identifying issues impacting on health and safety management in project process.

Confined site construction: An empirical analysis of factors impacting health and safety management

Purpose – The purpose of this paper is to identify, clarify and tabulate the various managerial issues encountered, to aid in the management of the complex health and safety concerns which occur within a confined construction site environment.

Design/methodology/approach – This is achieved through conducting extensive qualitative and qualitative research in the form of case studies, interviews and questionnaire survey.

Findings – The leading managerial issues in the management of health and safety on a confined construction site are found to be: “Difficulty to move materials around site safely”; “Lack of adequate room for the effective handling of materials”; “Difficulty in ensuring site is tidy and all plant and materials are stored safely”; “Close proximity of individuals to operation of large plant and machinery”; and joint fifth “Difficulty in ensuring proper arrangement and collection of waste materials on-site” along with “Difficulty in controlling hazardous materials and equipment on site”.

Practical implications – The resulting implication for practice of these results can be summarised by identifying that with sustained development of urban centres on a global scale, coupled with the increasing complexity of architectural designs, the majority of on-site project management professionals are faced with the onerous task of completing often intricate designs within a limited spatial environment, under strict health and safety parameters.

Originality/value – The subsequent value of the findings are such that just as on-site management professionals successfully identify the various managerial issues highlighted, the successful management of health and safety on a confined construction site is attainable.

Factors Influencing the Implementation of Site Waste Management Plans on UK Projects of all sizes

The purpose of this research is to identify and assess the opportunities and challenges of implementing a Site Waste Management Plan (SWMP) on projects irrespective of size. In the UK, construction and demolition waste accounts for a third of all UK waste. There are a number of factors that influence the implementation of SWMPs. In order to identify and analyse these factors, 4 unstructured interviews were carried out and a sample of 56 participants completed a questionnaire survey. The scope of the study was limited to UK
construction industry professionals. The analysis revealed that more needs to be done if the industry is to meet government targets of reduction in construction related waste going to landfill. In addition, although SWMP may not yet be legally required on all construction projects, clients and contractors need to realise
the benefits to cut costs and implement best practice by adopting a SWMP. The benefits of implementing a SWMP will not only help to achieve this but also gain significant cost savings on projects and is also extremely beneficial to the environment. This study presents evidence that contractors need to do more to reduce waste and draws a clear link between waste reduction and the implementation of SWMPs. The findings are useful in the ongoing efforts to encourage the industry to find smarter, more efficient and less
damaging ways to operate

The Impact of the Recent Economic Recession on the NEC Contract in Northern Ireland: A Preliminary Study

In comparison to the rest of the United Kingdom (UK) the Northern Irish Construction Industry was disproportionately affected by the recent economic recession. During this period, use of the New Engineering Contract (NEC) has proliferated in the public sector, however no study has been undertaken to examine the impact of the recession on this contract in Northern Ireland. The aim of this paper is to explore NEC contract implementation in Northern Ireland and the impact of the recession on its operation. A qualitative methodology is adopted using a literature review and semi structured interviews with six construction professionals. A qualitative analysis identifies themes and issues arising exploring connections and links between them using thematic coding. The initial findings are that the introduction of the NEC contract in Northern Ireland makes demands of contractors and consultants in terms of additional resources and training. Some consultants show a clear lack of understanding of the contract and its provisions. Whilst there is general agreement that the contract does help to stimulate good project management, the interviewees find the contract time consuming and complicated to administer, describing it as “unforgiving for the architect and unforgiving to the contractor.” Due to the impact of the recession, both contractors and consultants are still reporting a drop in income from pre-recession levels. Project resourcing levels have dropped significantly since the onset of the recession. Adversarial and opportunistic behaviour has increased. Many consultants and contractors are struggling to adequately administer the NEC contract at current income levels. The introduction of the NEC contract and the economic recession have exerted opposing forces on the implementation of the contract, hindering its execution. As the pressures exerted by the economic recession abate and a greater understanding of the contract develops, these opposing forces will ease leading to a more consistent implementation of the contract.

The Impact of the Recent Economic Recession on the operation of the NEC Contract in Northern Ireland

In May 2006, the NEC contract was introduced as the preferred contract for Northern Ireland public sector works. This was subsequently followed by the 2007 economic crash and ensuing recession, which continues to affect the Northern Ireland Construction Industry, to a greater extent than the remainder of the United Kingdom (UK). However, use of the NEC contract has increased during this period, particularly in the public sector. There has been debate in the literature regarding the impact of the NEC contract on adversarial behaviour, but little consideration of the impact of external economic factors on the use of the NEC contract. Using a sequential mixed method approach, the study aims to fill this gap in knowledge, through examination of the impact the economic downturn has had on the operation of the NEC contract in Northern Ireland. Qualitative and quantitative findings show that the demands placed by the NEC contract, and the effects of the economic recession, have exerted opposing forces contract implementation, thus hindering its execution. The findings can lead to a deeper understanding, in the context of both industry and academia, of situations where a lack of resources may negatively impact the operation of the NEC contract.

Maturity Model for Supply Chain Relationships in Construction

This study explores the special characteristics of the construction industry and develops a maturity model for measuring and improving the relationships between the key players of a construction supply chain. The model adopts the capability maturity methodology and defines four maturity levels of construction supply chain relationships. It is in a matrix format, consisting of 24 assessment criteria in eight categories at each maturity level. It also provides three different ways of using the model. The model is evaluated through a series of expert interviews. A case study is also presented to demonstrate the application of this model in practice.

Establishing ex ante public construction supply chain guidelines in the public procurement of Schools' estate

Purpose – The purpose of this study is to explore the formative development of construction supply chain guidelines or proposals in a UK region’s schools’ estates procurement process to more effectively address a forthcoming increase in investment.

Design/methodology/approach – The research approach is interpretive. Using an action research approach, repeated semi-structured interviews and focus groups with a range of stakeholders are conducted.

Findings – The current construction supply chain in schools’ estate procurement has many difficulties, not least given the highly fragmented and disconnected nature of the projects. Synergies are being missed and there is little or no continuous improvement. Drawing on these findings, the research iteratively develops a range of proposals and guidelines to address this situation.

Research limitations/implications – This research adds weight to the current focus on pressing for change in the construction industry. It presents potentially valuable insights into the benefits of partnering arrangements and how these might usefully be incorporated into schools’ estate supply chain.

Practical implications – A set of guidelines is developed to guide the public procurement of schools’ estate in a UK region. These guidelines are set within the context of the Modernising and Rethinking Construction agenda.

Originality/value – The action research approach enabled the researchers to gain a unique insight into how public procurement and contractor personnel interact and to establish effective practical guidelines.

Confined site construction: A qualitative review of issues regarding health and safety on-site

The construction industry is inherently hazardous, with a significant number of accidents and incidents occurring, particularly on confined construction sites. This research identifies, clarifies and tabulates the various managerial health and safety issues encountered on confined construction sites, based on a qualitative approach, to aid in the management of the complex health and safety concerns. The methodology is based on qualitative research incorporating case studies, interviews, causal loop diagrams and mind mapping. The key findings in the managerial issues in the management of health and safety on confined construction sites can be summarised as follows; (1) A lack of space, (2) Increased management of site personnel, (3) Overcrowding of the work place. The implication for the industry is that due to the sustained development of urban centres on a global scale, coupled with the increasing complexity of architectural designs, the majority of on-site project management professionals are faced with the onerous task of completing often intricate designs within a limited spatial environment, under strict health and safety parameters. The value of such research is to aid management professionals successfully identify the various managerial issues highlighted, resulting in the successful management of health and safety on a confined construction site.

Irresponsible Lending?: A Case Study of a U.K. Credit Industry Reform Initiative

There are major concerns about the level of personal borrowing, particularly sourced from credit cards. This paper charts the progress of an initiative to create a Responsible Lending Index (RLI) for the credit industry. The RLI proposed to voluntarily benchmark lending standards and promote best practice within the credit industry by involving suppliers of credit, customer representatives and regulators. However, despite initial support from some banks, consumer bodies and the Chair of the Treasury Select Committee, it failed to gain sufficient support from financial institutions in its original format. The primary reasons for this were related to the complexity of building such a robust index and the banks trade body’s fear of exposing its members to public scrutiny. A revised alternative, the Responsible Lending Initiative, was proposed which took into account these concerns. However, the Association of Payment Clearing Service (APACS), the trade body of the credit industry, then effectively destroyed the proposal. This article describes an attempt to address the challenges in the credit card industry with the initiation of the RLI, reflected in stakeholder discourse and in the context of a wider concern expressed by the involved stakeholders in terms of the need for greater responsibility in the banking industry’s lending practices.

Life Cycle Assessment guidelines for the sustainable production and recycling of aggregates:The Sustainable Aggregates Resource Management project (SARMa)

The mining/quarrying industry is a sector of industry where there are very few Life Cycle Assessment (LCA) tools, and where the role of LCA has been poorly investigated. A key issue is the integration of three inter-dependent life cycles: Project, Asset and Product. Given the unique features of mining LCAs, this Note from the Field presents a common methodology implemented within the Sustainable Aggregates Resource Management (SARMa) Project (www.sarmaproject.eu) in order to boost adoption of LCA in the aggregate industry in South Eastern Europe. The proposed methodology emphasises the importance of resource efficiency and recycling in the context of a Sustainable Supply Mix of aggregates for the construction industry. Through its adoption, aggregate producers, recyclers, and governmental planners would gain confidence with LCA tools and conduct consistent and meaningful life cycle analyses of natural and recycled aggregates. © 2011 Elsevier Ltd. All rights reserved.

Is Early Warning Effective for the Improvement of Problem Solving and Project Performance?

Since the first launch of the new engineering contract (NEC) in 1993, early warning of problems has been widely recognized as an important approach of proactive management during a construction or engineering project. Is early warning really effective for the improvement of problem solving and project performance? This is a research question that still lacks a good answer. For this reason, an empirical investigation was made in the United Kingdom (U.K.) to answer the question. This study adopts a combination of literature review, expert interview, and questionnaire survey. Nearly 100 questionnaire responses were collected from the U.K. construction industry, based on which the use of early warning under different forms of contract is compared in this paper. Problem solving and project performance are further compared between the projects using early warning and the projects not using early warning. The comparison provides clear evidence for the significant effect of early warning on problem solving and project performance in terms of time, cost, and quality. Subsequently, an input-process-output model is developed in this paper to explore the relationship among early warning, problem solving, and project
performance. All these help construction researchers and practitioners to better understand the role of early warning in ensuring project success.

Construction Disputes in Small to Medium Enterprises in Ireland during Recession: Identification of Critical Factors

Purpose - To identify the critical factors causing construction disputes in Small to Medium Enterprises (SMEs) in Ireland during the recent recession period of 2007 to 2013.
Design/Methodology/Approach - A mixed method approach incorporating a literature review, case studies and questionnaire survey, with results analysed using exploratory (data reduction) factor analysis.
Findings - The results indicate seven core critical factors which result in construction disputes in SMEs in Ireland during a recession: Payment and extras; Physical work conditions; Poor financial/legal practise; Changes to the agreed scope of works; Time overrun; Defects; and Requests for increase in speed of project and long-term defects.
Research Limitations/Implications - With Ireland emerging from the current economic recession and the prevalence of SMEs to the construction sector, it is essential to document the core critical factors of construction disputes which emerge within this particular segment of the built environment.
Practical Implications - To address the adversarial nature of the construction sector and the prevalence of SMEs, it is essential to identify and document the critical factors of construction disputes within this remit. It is envisaged that the results of this research will be acknowledged, and the recommendations adopted, by construction SMEs, particularly within Ireland, as they emerge from the economic recession.
Originality/Value - This paper fulfils a gap in knowledge with the emergence of the economic recession and the identification of critical factors of construction dispute within SMEs in the Irish construction industry.

A systematic review investigating the effectiveness of Complementary and Alternative Medicine (CAM) for the management of low back and/or pelvic pain (LBPP) in pregnancy

Aim: To evaluate and summarize the current evidence on the effectiveness of complementary and alternative medicine for the management of low back pain and/or pelvic pain in pregnancy.

Background: International research demonstrates that 25-30% of women use complementary and alternative medicine to manage low back and pelvic pain in pregnancy without robust evidence demonstrating its effectiveness.

Design: A systematic review of randomized controlled trials to determine the effectiveness of complementary and alternative medicine for low back and/or pelvic pain in pregnancy.

Data Sources: Cochrane library (1898-2013), PubMed (1996-2013), MEDLINE (1946-2013), AMED (1985-2013), Embase (1974-2013), Cinahl (1937-2013), Index to Thesis (1716-2013) and Ethos (1914-2013).

Review Methods: Selected studies were written in English, randomized controlled trials, a group 1 or 2 therapy and reported pain reduction as an outcome measure. Study quality was reviewed using Risk of Bias and evidence strength the Cochrane Grading of Recommendations and Development Evaluation Tool.

Results: Eight studies were selected for full review. Two acupuncture studies with low risk of bias showed both clinically important changes and statistically significant results. There was evidence of effectiveness for osteopathy and chiropractic. However, osteopathy and chiropractic studies scored high for risk of bias. Strength of the evidence across studies was very low.

Conclusion: There is limited evidence supporting the use of general CAM for managing pregnancy-related low back and/or pelvic pain. However, the restricted availability of high-quality studies, combined with the very low evidence strength, makes it impossible to make evidence-based recommendations for practice.