Barrister, Sydney, Australia 1

This paper considers the proper analysis of the element of compensation by way of liquidated damages to an owner and delay costs to a contractor, when the delay concerned has arisen from concurrent delay events. It is in one sense a companion piece to the paper by Andrew Stephenson at page 166, above. Consideration is given to a presumed contractual intention and risk allocation of general application to the right to compensation when the delay to completion involves concurrency. Two significant legal uncertainties which impinge upon the principled interpretation and drafting of contracts and the assessment of damages or costs for delay are also reviewed.

The legal issues which impact upon the entitlement to and assessment of damages for late completion and for costs and expense for delay are complex and, in many respects, difficult to reconcile. They are addressed in this paper. Consideration has been given by Andrew Stephenson in Part 1 to the analysis of the causal connection between delay and a contractor’s entitlement to additional time to complete (see pages 167–171). The last section of this paper adopts that analysis and considers how the correct common law principles of causation should apply to the assessment of compensation for delay.