Article Loss Prevention

AGS Commercial Risks and How to Manage Them Conference 2020 – Overview

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Following the success of the first AGS Commercial Risks and How to Manage Them Conference in July 2019, the conference was held on 22nd January 2020 at the Manchester Conference Centre. The conference was sponsored by Geotechnics, SOCOTEC UK, Geotechnical Engineering and Envirolab. The afternoon conference was attended by 60 delegates and following lunch and opportunity to network with the sponsors and attendees, Jo Strange (CGL), who was chairing the event gave the opening address.

Russell Jones (Golder Associates) started the afternoon speaking about ‘battle of the forms’, which arises when two businesses are negotiating the terms of a contract and one business provides an offer and then the other business provides a counteroffer. Russell concluded that the battle is usually ‘won’ by the party that fired the last shot!.

Hugh Mallett (BuroHappold Engineering and AGS Loss Prevention Working Group Leader) discussed the importance of defining scope and objectives in proposals and project reports by reference to real life case studies which led to dispute or claims and referred delegates to LPA 69 for further information.

Stephen Hargreaves (Griffiths & Armour) described several case studies based on insurance claims, showing that fundamental errors can equal high value disputes. Stephen advised on an “eyes wide open” policy to manage the risks around making assumptions.

Zita Mansi (Beale & Co) spoke about collateral warranties, emphasising that collateral warranties are new contracts with third parties. Zita informed the delegates the measures available to mitigate risk and the fundamental importance of limiting liability in such agreements.

After refreshments and further networking, Adam Gombocz (NHBC) discussed how NHBC adopt a proactive approach to managing risks on sites registered for Buildmark warranty. Through case studies, Adam explained what is to be avoided on residential developments.

Rachel Griffiths (Fugro) considered the important distinction between the ‘duty of care’ required in providing (a) services or (b) goods.  Goods fall under a ‘fit for purpose’ requirement of the Sale of Goods Act. Whereas provision of services falls under a requirement for ‘reasonable skill and care’ under the Supply of Goods and Services Act. These standards are fundamentally different and consultants giving advice or providing designs should make sure that their contract specifically refers to “reasonable skill and care” and not to “fit for purpose”.  To avoid any misunderstanding Rachel recommended that this clarity should be reiterated in AGS Member’s professional reports.

The final talk of the day was provided by Lee Beveridge (Environment Agency), who discussed the implications for Members of recent changes in Landfill Tax (see AGS Magazine March/ April 2019). Lee advised that the new rules were in effect now but could also date back to activities from 1st April 2018. Lee warned delegates that the HMRC were looking to enforce the new regime with considerable vigour.

The presentations from the conference (with approval from speakers) are now available on the AGS website together with numerous documents and up to date commercial guidance, freely available. The Legal Helpline also offers members 15 mins of free advice from Beale and Co.

News Loss Prevention

AGS LPWG Input to NEC4 Professional Services Contract

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The Loss Prevention Working Group has been in communication with the NEC4 drafting committee regarding the extent of professional indemnity insurance cover required under the Professional Services Contract.  NEC are to provide additional guidance on how to complete Contract Data for the insurances within the published guidance notes. At present, guidance on this insurance in Volume 2 simply recommends that the advice of an insurance specialist be obtained. NEC now propose to add the following.

When insurance cover is restricted for certain work required under the contract, for example advice in relation to land affected by contamination where an aggregate limit has been imposed, the compiler should include the entry “….. in respect of each claim without limit to the number of claims, but subject to an aggregate limit of …. In respect of claims relating to …”. The same approach should be followed where other restrictions are placed on the cover which Consultants are able to obtain for services under the contract.

This will allow consultants to be covered by their usual policies which usually limit cover relating to contamination to be in the annual aggregate.

Neil Parry, Director at Geotechnical Engineering on behalf of the AGS Loss Prevention Working Group

Article Safety

“Emergency rescue from a trial pit – are you prepared?”

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This is the second of a series of articles related to safety and trial pitting, following the June 2019 AGS Magazine article “Is trial pitting fit for purpose?”.

Imagine the situation: you are in a meeting at your office and your phone buzzes – a number you don’t recognise; it buzzes again, and you mute it.  You carry on with your important meeting, when it buzzes with a text “URGENT – accident, call straightaway!”.  You excuse yourself and call the unknown number.  The voice says “I’m the JCB driver at … site; your Engineer has fallen into a trial pit; it’s quite deep and they’re hurt.  What do we do?”, and then says “I’ve called the Fire Brigade, but they’re not here, and the pit sides are looking likely to collapse.  There’s standing water and inflow at the base of the pit, and they might not be able to breathe soon!”

Perhaps reading this you are thinking to yourself that you wouldn’t get a call like that because you always have a 2 person team on site?  Well maybe it’s one of the two calling you and you’ve still got a very difficult problem to address.  Maybe you are thinking you won’t get that call because your company generic and site specific RAMS or Construction Phase Plan includes a detailed Emergency Rescue Plan for such a situation, and your staff have been trained on it, and the field team have been briefed on it, and there is equipment available.  That would be good.  Because you do have generic and site-specific rescue plans don’t you?

The AGS Safety guidance note “Work at Height”, which is based on the HSE document “Working at Height : a brief guide”, states “… this must include planning for emergencies and rescue, without resort to the emergency services in the first instance…”.

           

In Autumn 2019, the AGS Safety Working Group sent out questionnaires to AGS members, asking for their feedback on how they managed Work at Height when carrying out machine dug trial pitting activities, and particularly focused on logging activities close to the unprotected edge of a trial pit circa 2, 3, 4m+ deep.  Whilst a specific question was not asked about rescue plans, not one of the respondents identified rescue plans as a part of their work at height / trial pitting arrangements.   Because a specific “rescue” question was not asked in the questionnaire, it would be premature and unreasonable to deduce that none of the respondents employ rescue plans.   But in collating and interpreting those survey responses, it started to concern me that no-one even mentioned it in their response.

The questionnaire and discussions within the AGS Safety Working Group over the past year, contributed to a paper presented at the AGS “Safety in Mind” conference in November 2019, entitled “How far is SFARP when working at Height during trial pitting”.  Subsequent discussions following the presentation have concerned me that rescue plans for trial pitting, specifically rescuing a logging engineer who has fallen into a trial pit, do not appear to be as widely practiced as I might imagine.

There are all sorts of reasons why we carry out trial pitting, and why we have for many decades undertaken this by standing (for part of the operation at least) close to an unprotected edge of a pit several metres in depth.  A discussion about those aspects is contained within the “Safety in Mind” conference presentation (which is available on the AGS website) and will be the subject of the next article in this series.  There are discussions ongoing within the AGS Safety Working Group about Working at Height and trial pitting, and about new equipment coming into the industry which might be practicable, and which may further prevent a fall into a trial pit.   However, until that becomes available, we should as an industry, and as employers and managers be thinking about rescue.

Rescue from a trial pit is not easy.  You might have an extendable ladder within the boot of your car / van.  But if the fallen person is injured, can they even climb a ladder?  What if you descend the ladder, could you pick them up and carry them back up a ladder?  Perhaps you could attach a rope to them and get the JCB to lift them out?  Do you know how to attach a rope to an injured person, so that it will support them, and not lead to them slipping and being injured further? Perhaps if they were wearing a rescue harness then you could attach the rope to that, but that involves having a rope of sufficient strength available.  Maybe you could wait for the fire brigade, but that presumes they can get there in time, are not dealing with other emergencies, and also that they can easily get to where you are trial pitting, which may not always be easy. And importantly, will they get there before the pit collapses, because if not you are dealing with removal of a body rather than rescue of an injured person.  Maybe you think you could ride down on the JCB bucket and help the person into the bucket and lift them out.   There certainly are products and equipment in the construction and utilities industries which might contribute to implantation of a pre-planned rescue.  However, it is usually about this time in a discussion that someone will raise “Confined Space!”.  Whether any individual trial pit is a confined space is dependent on actual site conditions, but a trial pit is certainly a potential confined space, not least if that groundwater inflow is causing a rise of water at the base of the pit, or if ground gas is present.  And we probably all know the mantra about confined spaces – you don’t send another person in at risk to rescue because then we may have 2 people to rescue.  What a conundrum!  If it’s not easy to you, what kind of challenge does it pose to the JCB driver and your second young graduate engineer on site who are actually faced with it?

So, preparing for emergency rescue isn’t easy.  It might involve equipment you don’t have; you would need to train your staff and brief others; you haven’t implemented it before and are not aware of others who have done so.

Maybe it is easier to just believe because it hasn’t happened to you before, it’s not too urgent.  One thing the questionnaire responses identified, is that during hundreds of years of collective experience, none of the respondents or the author have experienced or known of a single case of a logging engineer / geologist falling into a trial pit.  This is comforting to some extent.  However, a fall into a trial pit would almost certainly lead to major injury, broken bones, back, neck etc. Or worse.  I would suggest that as employers, managers and as an industry, our methods of work should allow human beings to make human mistakes (such as tripping or stumbling close to the edge perhaps) without having their life substantially affected forever as a result.

This article is not intended to be judgmental or critical.  It is intended to raise, for discussion or action, an issue of concern, certainly to me at least.  I have been involved in trial pitting for over 30 years and have derived great personal and project benefit from getting up close to the ground, and from the information that can be uniquely obtained from pits.  I have no interest in “banning” trial pitting.  The synthesis and collation of information on this subject over the past year however has prompted personal thoughts about whether we as an industry and employers are doing enough, particularly to seek other practicable technological solutions which allow us to continue to benefit from trial pitting.

Back to the initial telephone call.  Let’s imagine that the Fire Brigade have got there, and fortunately, before the sides of the pit collapsed.  Your staff member is out of the pit, but on their way to hospital with broken bones at least.  You now have 3 telephone calls to make which will keep you from your important meeting – to your Managing Director, to the HSE/RIDDOR, the outcomes of which will no doubt lead to business loss and potential prosecution, and most importantly to the family of your injured member of staff.

I am sure that some readers will think this is “scaremongering”, and that people don’t fall down trial pits, as long as they are “competent” and follow sensible guidance and the (“perfect”) RAMS.  Are you absolutely sure that you can rely on that; and what about UXO and Archaeology Watching Brief observers who also want to peer into the pit – are you sure?  Do you want to make those telephone calls or speak to the HSE Inspector under caution?

Please have this discussion within your own projects and organisations. Download the AGS “Work at Height” guidance note and read it and disseminate it around your organisation to raise awareness.  The AGS Safety Working Group are having this discussion and are establishing a Trial Pitting Sub-Group.  Please let the AGS know your thoughts, views, experiences and ideas on rescue, particularly if you already implement a proven methodology for such a situation, which would benefit other AGS members from its dissemination.

The time to think about emergency rescue from a trial pit is NOT when you need it – it is long before.  The person who needs to think about it is not your young logging engineer / geologist, but the employer and managers.

Article provided by Steve Everton, Director of Operations at Jacobs

News

AGS Magazine: December 2019 / January 2020

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The Association of Geotechnical and Geoenvironmental Specialists are pleased to announce the December 2019 / January 2020 issue of their publication; AGS Magazine. To view the magazine click here.

This free, publication focuses on geotechnics, engineering geology and geoenvironmental engineering as well as the work and achievements of the AGS.

There are a number of excellent articles in this month’s issue including;
New AGS Members in 2019 – Page 4
AGS Safety in Mind Conference – Review – Page 6
Mindfulness & Meditation – Page 10
Collateral Warranties: Reliance and Limiting Liability – Page 14
Q&A with Neil Parry of Geotechnical Engineering – Page 18
Standards Update: November 2019 – Page 22

Advertising opportunities are available within future issues of the publication. To view rates and opportunities please view our media pack by clicking HERE.

If you have a news story, article, case study or event which you’d like to tell our editorial team about please email ags@ags.org.uk. Articles should act as opinion pieces and not directly advertise a company. Please note that the publication of editorial and advertising content is subject to the discretion of the editorial board.

Article

Q&A with Neil Parry

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Full Name: Neil Parry
Job Title: Technical Director
Company: Geotechnical Engineering Limited

I’m a chartered Civil Engineer and SiLC with 32 years’ experience working for major contractors and consultants on many different projects including major infrastructure, military, demolition and remediation schemes, latterly in the ground investigation sector. I am a member of the AGS Loss Prevention Working Group, chaired the Contaminated Land Working Group between 2013 and 2017 and was chair of the AGS between 2017 and 2019. I am involved in the working groups revising the specification for ground investigation and developing an NEC type contract for GI work, I am also currently chair of Ground Forum.

What or who inspired you to join the geotechnical industry?

I began my career working as a site engineer with Alfred McAlpine and AE Farr Limited in the late 1980s on construction sites such as the Avon Ring Road and building munitions igloos for the US Airforce. I was based at the offices of Acer Freeman Fox in Bristol, gaining design experience for my Civils chartership when AE Farr went into receivership, a victim of the severe downturn in 1990. Despite being re-employed by Amey Construction I decided that it was best for my young family to leave civil engineering contracting and take up the offer of consultancy work with Acer. I originally worked in bridge design and on water projects, but due to my undergraduate specialism in soil mechanics ended up in the geotechnical engineering team. I enjoyed the mix of site-based and design work and quickly realised that this was what I wanted to do for the rest of my career. I was lucky to work with several knowledgeable and inspiring leaders who encouraged me to progress within the geotechnical industry. When I had the opportunity to study for an MSc in the relatively new subject of environmental geology/geoenvironmental engineering I jumped at the chance and undertook the course on a part-time basis over three years. I really enjoyed learning a new subject and was encouraged by the people I worked with to continue in this sector. I continue to work on both geotechnical and geoenvironmental work.

What does a typical day entail?

As most people will say there are rarely typical days in ground investigation/geotechnical engineering. If we have a major project that is about to start or I am visiting a site for the first time there is often a health and safety induction or briefing. The importance of health, safety and wellbeing is perhaps the most significant advancement in the industry that I have seen in the last 30 years and I am pleased to have seen this progress.

It is likely that I will attend a meeting, either internally, on AGS business or with one of our clients. Despite technical advancements allowing remote interaction I feel that the importance of face to face meetings cannot be overestimated and I believe that personal contact is a significant aid to promoting collaborative working.

I may be involved in reviewing a contract or undertaking technical checks of test results, logs or reports, hopefully providing positive encouragement and advice. I may also be required to design the anchor system for one of our slope climbing rigs prior to it being deployed to a slope anywhere in the UK.

Are there any projects which you’re particularly proud to have been a part of?

I try to take pride in whatever project I’m involved in at the time, whether it is a £20,000 investigation for a housing project or on major GI works costing millions of pounds for a large infrastructure scheme. Some of the projects that come to mind however are working on the feasibility of scheme options for the A465 ‘Heads of the Valleys’ Road, which is currently under construction many years later. I also worked on the geotechnical design and supervised the GI for a £200 million indoor ski centre in Taiwan. I have been involved in several brownfield land schemes such as the gasworks remediation for the Thistle Centre in Scotland and the demolition/remediation works for Bede Island in Leicester. Recently Geotechnical Engineering have undertaken work on several large infrastructure projects, which have been challenging and rewarding.

What are the most challenging aspects of your role?

Like most people working in our industry I have several different roles and responsibilities, both within Geotechnical Engineering and the AGS. I am passionate about promoting the value of technical skills and it is disappointing when these are dismissed or marginalised reducing the benefit of the work we do. Working directly to the requirements of a specification may not produce the best technical value for the project and early contractor involvement greatly helps in improving specifications in respect to the proposed works.
I also find the it challenging to promote the fairness of relationships between parties when entering into contracts. I believe that those taking the risks under a contract should be rewarded for doing so and there is an important balance between assigning risk and responsibility between contractual parties.

What are the aims and objectives of the Ground Forum?

The Ground Forum provides a single point of contact for ground related industries (including the AGS, EGGS, BGA, FPS, BDA and several others) with government and official bodies, giving the geotechnical fraternity a voice within the construction industry. Ground Forum exists to:
• Provide an effective point of communication between Member Organisations.
• Enhance the profile of the ground engineering industry.
• Raise youth awareness of the satisfaction and rewards of a career in ground engineering.
• Promote good practice in all ground related disciplines.
• Enhance training through CPD.
• Promote the value of good ground engineering and geotechnics.
• Lobby the government and other construction organisations on issues of concern for the ground engineering sector.
As the Chair of Ground Forum, what does your role involve?
The chair of Ground Forum provides a coordinating role between the fifteen member organisations. There are three to four committee meetings every year plus attendance at events by the Construction Industry Council and Parliamentary and Scientific Committee. As there are a wide range of different views on the industry between the different bodies represented (for example the Institute of Materials, Minerals and Mining (IOM3) and the International Geosynthetics Society) it is important to forge a common purpose and develop agreed objectives.

What are the current focuses of the Ground Forum?

Currently Ground Forum is focussed upon:
• Lobbying the Government to ensure infrastructure spending is maintained through to addressing the status of valued European employees and maintaining UK access to skilled operatives and professionals.
• The Impact of Brexit on ground engineering sector.
• Addressing the shortage of Ground Engineering professionals.
• Maintaining Ground Engineers on the Government’s shortage of occupations list.
• Supporting university degrees and specialisms in ground engineering.
• Ensuring the industry maintains its access to expertise and well trained graduates.

Why do you feel the AGS are an integral member of the Ground Forum?

The AGS has quite a diverse membership, representing several different aspects of the ground engineering industry. This is reflected in the different AGS Working Groups, including the proposed Instrumentation and Monitoring group. This helps the AGS to understand the needs across the industry and several AGS members have successfully chaired Ground Forum.
Why do you feel the AGS and the Ground Forum are important to the industry?

There is a need to constantly promote the quality of our ground engineering professionals and the work they do in an industry that is literally “covered up”, so that our work is often unseen. Without bodies such as AGS, Ground Forum and their membership bodies I believe standards would be in danger of slipping with significant repercussions.

What changes would you like to see implemented in the geotechnical industry?

Although maintaining a high skill base is crucial and the possibility of skills shortages could have a major impact, I believe the promotion of health, safety and wellbeing is crucial to the success of the geotechnical industry. We need to look after our young engineers to allow them to develop both technically and in their quality of life.

The output from the recently established joint procurement of ground investigation working groups will hopefully lead to beneficial changes in what can often be the most important part at the start of a scheme. I’m hoping the results of these groups will be beneficial to all of the industry and adopted by client organisations throughout the UK.

Article

Mindfulness & Meditation

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Applying mindfulness to the workplace has benefits in terms of stress management, improved health and greater focus.

Mindfulness and mental health
Mindfulness is recommended as a treatment for people with mental ill-health as well as those who want to improve their mental health and wellbeing.
There are also different sorts of mindfulness meditation which can help people in different ways. Evidence shows compelling support for Mindfulness Based Stress Reduction (MBSR), which helps people to cope with stress, and for Mindfulness Based Cognitive Therapy (MBCT), which is designed to help people with recurring depression. They provide a flexible set of skills to manage mental health and support wellbeing.

The evidence for mindfulness
Mindfulness meditation has been shown to affect how the brain works and even its structure. People undertaking mindfulness training have shown increased activity in the area of the brain associated with positive emotion – the pre-frontal cortex – which is generally less active in people who are depressed.2
Many studies have shown changes in brain wave activity during meditation and researchers have found that areas of the brain linked to emotional regulation are larger in people who have meditated regularly for five years or more.3 The evidence for different types of mindfulness is promising and research has grown in recent years. Source: Mentalhealth.org.uk

What is mindfulness?

Being aware of what is going on inside and outside of yourself, moment by moment.

We frequently live internally, forgetting about the world around us and how our bodies respond to it. We often get wrapped up in our own thoughts, and are unaware of how our thoughts and emotions reflect on our physical body.

Mindfulness puts each of your senses into practice – smells, sounds, sights, tastes, and focuses these senses on the present moment and surroundings.

Mindfulness brings the present moment to the forefront, enabling you to positively change your perception, thoughts and feelings about yourself and your life.

What are the benefits?

Mindfulness enables you to enjoy both yourself and your surroundings. By being more aware of the present moment and the impact this has on you, you can establish a positive thought pattern.

Focusing on your internal dialogue will help you to understand a pattern of thought, enabling you to gradually train yourself to recognise when these become unhelpful and destructive.

Mindfulness gives you the opportunity to step back from your thought pattern and recognise that it doesn’t control you and can be altered in whichever way you wish.

This recognition will enable you to highlight signs of anxiety and stress perhaps before you normally would. Determining these signs more promptly will help you to combat them in their earlier stages.

In short, mindfulness could help you:
• Become more self-aware
• Reduce stress and anxiety
• Feel more in control of your thoughts and feelings
• Establish stronger coping strategies towards unhelpful thoughts and feelings
• To be kinder to yourself

How to practice mindfulness

Become more aware of each of your senses in order to switch off the ‘auto pilot’ thought processes. Pay attention to your thoughts, feelings, body and how you react to the world around you.

Notice the everyday – The sound of your feet hitting the pavement, the feel of your hands on your knife and fork or the shapes of the clouds. Paying attention to the things you encounter everyday will bring a new and brighter perspective on life.

Keep it habitual – Dedicate a certain time to being mindful. Try to keep this uniform each day as becoming mindful takes practice. This could be a bath before bed, or a walk to work for example.

Try something new – We are all creatures of habit, so stepping out from the norm can help to establish a new and fresh perspective. This can be something simple like sitting on a different seat on your commute to work, or running a different route for your jog.

Recognise your thoughts – Some people have a very busy and vocal inner dialogue. This can become intrusive and often go unnoticed. But paying attention to it will enable you to make positive changes. Mindfulness isn’t about quashing your usual thought pattern, but instead questioning it. Are those thoughts useful? Are they causing you harm? Embrace your thoughts, acknowledge them, and try to release them as easily as they arrived. Exercise can often help to quiet a worried and busy mind.

Free yourself from the past and future – The beauty of mindfulness is that it can be practiced anywhere. It can be helpful to acknowledge that you may have been confined by past problems, or occupied by future worries.

Mindfulness Techniques

We have discussed that mindfulness can be practiced within normal daily life, but it can also be helpful to dedicate some time to establish more formal mindful practice in the form of mindful meditation.

The word “meditation” is something you could think of as a big umbrella word. Rather like “sport” it covers a whole host of different styles, activities and methods.

It is something which anyone can do and enjoy when you find a method which suits you.

Things you need, to gain the most benefit from meditation and mindfulness:
1. Focus
2. Relaxation
3. Self-acceptance and patience

1. Focus
• Keep your mind engaged in your meditation
• As soon as you are aware of wandering thoughts bring yourself back to focus
• When a thought crosses your mind in meditation, acknowledge it but don’t start a conversation with it! Let it go now and allow it to come back later or file the thought away for later action
• Allow yourself to just say “I don’t know!” if you start to question yourself
• Tighten and relax each muscle group from top to bottom
• Focus on what you see, hear, smell, taste and feel moment by moment
• Return to focus

2. Relaxation
• Allow yourself to be relaxed when you start to meditate
• Allow the meditation to enhance those feelings
• Close your eyes and place your hands flat on your solar plexus
• Calm on each outbreath
• Imagine breathing in relaxing coloured air – you can also breath out unwanted feelings with a relevant colour to you.

Ask yourself –
• Am I physically comfortable?
• If using music – is the volume right for me?

Also check you are mentally comfortable –
• Do I feel safe?
• Am I comfortable that I won’t be disturbed?
• Have I allowed time? (Set an alarm!)

3. Acceptance and Patience
• Don’t worry about whether you are doing it the “right” way. The way you are doing it is right for you right now!
• Do not try too hard
• Accept that thoughts will enter your mind and distractions will occur and simply return to the meditation each time your mind wanders without giving yourself a hard time
• Practice will make it easier and more effective – the more you do it the better you get
• Return to focus

Helpful Meditation Techniques

Guided Visualisation
• Start by relaxing your body
• Engage all your senses and imagine: sights, sounds, smells, temperature and touch
• Guide yourself through an imaginary journey to a place where you can relax and enjoy feeling safe and calm

Laugh your troubles away
• Make a little cave in your hands
• Put your troubles inside
• Take a peek and laugh them away

Seated meditation
• Be awake, conscious, engaged, calm and relaxed
• Sit upright and be comfortable
• Use your chosen hand position

Breath counting meditation
• Close your eyes and allow yourself to relax
• Start to focus on your breath, then begin to count the out breaths
• If you lose count because you have become distracted, start again
• Do this to start with for up to 50 natural breaths then build it up as you like

When you have practiced you will get a feel for what you enjoy and what works for you, so you can create your own style of meditation.

To provide Mindfulness in your workplace and for further information contact The Healthy Employee Ltd
E: office@thehealthyemployee.co.uk
T: 07778 218009

Article Loss Prevention

Collateral Warranties, Reliance and Limiting Liability

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It is common in construction projects for contractors, sub-contractors and consultants to be asked to provide collateral warranties and/or letters of reliance/assignments to parties other than the main client. In this article we consider the scope of such liability to third parties and, also, the extent to which it can be limited in contractual documentation.

The ability to limit your liability to third parties will often mirror or be dependent on the extent of any limitations of liability set out in the contract with the original client. It follows that, when drafting terms of appointment, care should be taken to ensure your liability is as limited as possible. In particular:

1. The contract should expressly prohibit assignment. It should also exclude third party rights under the Contracts (Rights of Third Parties) Act 1999. Whilst most standard construction contracts will include such a restriction, it is always sensible to double check that it is there.

2. Include a cap on liability – this is acceptable, so long as it satisfies the criteria of ‘reasonableness’ under the Unfair Contract Terms Act 1997. It should be in respect of “all such claims” as opposed to “each and every claim”. You should note that the level of professional indemnity cover you hold is not, in itself, a limit on your liability.

3. Include a net contribution clause to protect you in circumstances where there are other parties who are also liable to the client. Such a clause ensures that you are not left responsible for the entire sum claimed, and that liability can be shared out between the various parties involved.

4. Include an exclusion for indirect and consequential losses. This will ensure that you are not responsible for losses that are too far removed from the services provided.

5. Restrict the time limit for all claims to a period of six years from the date of the delivery of services/a report.

A carefully drafted appointment or contract, including the provisions referred to above, will provide strong grounds on which to challenge any third party claims that may later develop.

Collateral Warranties

Breaches of contract can cause loss to many parties in a construction project. There is, however, usually no direct contractual link between you and third parties such as project funders, purchasers or future tenants. Collateral warranties create that otherwise non-existent link by creating a separate contract between you and the third party.

Whilst it would, of course, always be preferable to avoid providing collateral warranties, this often will not be possible. It is therefore sensible when agreeing terms of appointment to limit the obligation to provide collateral warranties to only closely defined groups, such as the first purchaser or the first tenant and to resist wording that requires a collateral warranty to be provided to “any party with an interest”. It is also prudent to agree a cap on the total number of collateral warranties the terms of appointment obliges you to provide, and the number of times those warranties can be assigned to others.

When agreeing the terms of a collateral warranty, you should take care to ensure that its obligations mirror, and do not go beyond, the terms of your main contract with the client. A collateral warranty will generally include a “no greater duty” or “equivalent rights of defence” clause, which confirms the parties’ intention that the liability under the collateral warranty should be no greater than the duty you assumed under the main contract with your client. This fundamental principle was confirmed by the court in Swansea Stadium v City & County of Swansea [2019] and the Scottish Court of Session in British Overseas Bank Nominees Ltd v Stewart Milne Group Ltd [2019]. If a collateral warranty is drafted as a bespoke document, or if a standard form is amended, care should be taken to ensure that the “no greater duty” wording is included.

Bearing in mind the stand alone status of a collateral warranty, its content should be considered as closely as the terms of the original terms of appointment. As such, it should exclude third party rights in a similar way to the main contract and should provide for assignment only if prior consent is given.

You should also bear in mind the issue of time-bar, or limitation, which has recently been considered by the courts in the cases of Swansea Stadium v City & County of Swansea [2019] and British Overseas Bank Nominees Ltd v Stewart Milne Group Ltd [2018]. In the Swansea case it was held that the limitation period ran from the date of the original building contract, not the date on which the collateral warranty was granted. This was reinforced by the Court of Session in British Overseas Bank.

For the avoidance of any doubt, you may wish to ensure that there is an express clause included in the collateral warranty stating that no actions or proceedings shall be commenced after the expiry of six or twelve years (as appropriate) from the completion of the services provided. This is particularly important if the collateral warranty is provided some years after a project has been completed.

Reports and third parties

Another area in relation to which liability to third parties may arise is the assignment of reports, originally prepared for the original client, to a third party (e.g. a developer purchasing the site from the original owner).

The question arises as to what extent that third party can rely on the content of your report. This issue was considered by the court in the case of BDW Trading Ltd v Integral Geotechnique (Wales) Ltd 2018. The judgment clarifies that any third party seeking to rely on your report will have to obtain a formal assignment “or other legal document” in order to do so. The court noted a significant distinction between “using” the report (in the sense of reading it and making decisions based on it) and “relying” on it in a legal sense. We reviewed the court’s decision in this case in LPA 68 to which you can refer for further detail as regards the background of the case. LPA 68 can be downloaded here.

The case is a good reminder of the commercial value of formal assignments of reports (or collateral warranties or letters of reliance) to third parties. When negotiating such transactions, proper consideration should be given to the significant extra risk that is being created in terms of potential liabilities and suitable remuneration for the risk assumed should be sought.

In the event of a formal assignment, how can you minimise your exposure to future claims from the third party assignee? It would be advisable to have a standard agreement to assign readily to hand, as requests to assign are often urgently made. A standard agreement should be carefully thought out and should include the following terms:

• Any further assignment of the report is absolutely prohibited.
• No proceedings or action can be brought after 6 years from the date of the report (not the date of the assignment).
• The adequacy of your performance in preparing the report shall be assessed by reference to standards prevailing at the time the report was prepared and the terms of the original appointment, not by contemporaneous standards/terms.
• No liability will arise from any changes to site conditions since the report was prepared.
• An express financial cap on liability.
• An exclusion of liability for consequential losses.
• Confirmation that any claim by the assignee will be subject to (1) any right of set off that you may have against the client, such as an unpaid invoice and (2) any defence you may have against the client, such as a cap or other limitations on liability contained in the original contract.

Finally, you should avoid any suggestion that the report is to be treated as if it had been originally prepared for the assignee. For this reason, requests to change the name of the client referred to in the report should be firmly resisted.

Conclusion

Whilst it is difficult to completely avoid potential liability to third parties involved in a construction project, recent case law suggests that the courts will be sympathetic to your position. The BDW Trading case confirms that a claim in respect of a report prepared for a client can be relied upon by a third party only where there is a formal assignment. Also, limits of liability, net contribution clauses and exclusion clauses have all been enforced by the courts of late. It is therefore worthwhile ensuring, first, that the main contract with the client limits liability insofar as possible: this will involve standing firm as regards reasonable limits of liability and the inclusion of net contribution clauses. Thereafter, all collateral warranties/assignments should echo, or enhance, those limitation of liability clauses.

Zita will be speaking at the half-day AGS Commercial Risks and How to Manage Them Conference which is taking place on Wednesday 22nd January 2020 at the Manchester Conference Centre in Manchester. For further information on the conference and to book your place to attend, please visit the AGS website or email ags@ags.org.uk.

Article provided by Zita Mansi, Senior Associate at Beale & Co

Article

New AGS Members in 2019

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The AGS is pleased to announce that in 2019, nine member organisations, four affiliate organisations and one practitioner member were accepted by the Membership Panel and approved by the Executive.

Nine students and graduates were also accepted as AGS members.

The new member organisations are S M Associates, ACS Testing, Ecologia Environmental Solutions, Hixtra, Strata Geotechnics, RSK RAW, Curtins Consulting, The Environmental Protection Group and Geotechnical Observations. The new affiliate organisations are Beale & Co, 1st Line Defence, Geosense and Landmark Information Group. The new practitioner member is Ken Marsh.

AGS Membership is open to geotechnical and geoenvironmental companies who employ specialist who can provide competent services and affiliate companies who provide support services and supplies to the members. Students and Graduates can also become members of the AGS. Full details of membership criteria can be found at http://www.ags.org.uk/about/become-a-member/

Article Loss Prevention

Soil Quality Limits for Buried Water Pipes

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It is common practise to use the guidance published by UKWIR, ref 10/WM/03/21 “Guidance for the selection of water supply pipes to be used in brownfield sites”. 2009-10, in assessing the potential risk to buried water pipes from soil contamination. However, it should be noted that some water companies have their own bespoke threshold concentrations, which take precedence over the UKWIR guidance. These may not be publicly available.

Therefore, to mitigate the risk of inaccurate advice being provided, any guidance on selection of water pipes should be caveated as requiring a check and confirmation by the local water company.

Jo Strange, Technical Director at CGL on behalf of the AGS Loss Prevention Working Group

Article

Procurement of Ground Investigation Steering Group Survey

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This survey is a collaboration between the Association of Geotechnical and Geoenvironmental Specialists (AGS), British Drilling Association (BDA) and Federation of Piling Specialists (FPS). It builds upon the AGS/BDA 2017 survey ‘Spotlight on the industry’ which identified that poor procurement of ground investigation was amongst the top three concerns of the responders.

The purpose of the survey is to identify the level of understanding of, and detail the concerns with, the current procurement processes for UK ground investigation services. The responses will be used by Joint Industry Working Groups under the Procurement of Ground Investigation Steering Group to develop new or amend existing procurement guidance.

We welcome responses from across the industry and wider participation from all stakeholders will bring greater insight. Your response will be treated in confidence and the results of the survey will be shared with the geotechnical community.

The survey can be completed here and will take around 5-10 minutes to complete. The survey will close on Tuesday 31st December 2019.

News

AGS Magazine: November 2019

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The Association of Geotechnical and Geoenvironmental Specialists are pleased to announce the November issue of their publication; AGS Magazine. To view the magazine click here.

This free, publication focuses on geotechnics, engineering geology and geoenvironmental engineering as well as the work and achievements of the AGS.

There are a number of excellent articles in this month’s issue including;
AGS Video Competition – Page 4
Loss Prevention Alert 69: Objectives and scope – Page 5
“Easy” Safety Conversations – Page 6
The Value in Ground Engineering – Page 10
Q&A with Dr Claire Stone of i2 Analytical – Page 14
Working Group Focus: Data Management – Page 17

Advertising opportunities are available within future issues of the publication. To view rates and opportunities please view our media pack by clicking HERE.

If you have a news story, article, case study or event which you’d like to tell our editorial team about please email ags@ags.org.uk. Articles should act as opinion pieces and not directly advertise a company. Please note that the publication of editorial and advertising content is subject to the discretion of the editorial board.

Article

AGS Video Competition

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Following on from the success of the first AGS Photography competition last year, the AGS are holding their first official video competition for the geotechnical and geoenvironmental industry.

We’re on the lookout for your most creative video clips, including labs testing, site operations, work in offices, training and drone footage, as the AGS are looking to create a video which represents the diversity of the geotechnical and geoenvironmental industry.

Entry into the competition is free and the winner of the competition will win a hamper basket from luxury retailer, Fortnum and Mason, and two runners up will receive a bottle of champagne.

All entries will be reviewed by the AGS Officers, who will decide on a shortlist and overall winner. Full details will be announced in the March/April 2020 issue of AGS Magazine.

VIDEO REQUIREMENTS
The AGS are looking for high quality video clips of a geotechnical and geoenvironmental nature. Video clips can include projects, laboratory testing, collaborative working and more. Videos featuring staff should demonstrate health and safety procedures are in place, if appropriate.

HOW TO ENTER
Please email across your video clips before Monday 3rd February 2020 with the below points listed to ags@ags.org.uk. Please list the email subject as ‘AGS Video Competition 2019’;

o A short description of what it showcases and where it was taken (up to 50 words)
o Credit information (if applicable)
o Your full name
o Company name
o Postal address

TERMS AND CONDITIONS
• There is no limit to the number of videos you enter.
• The deadline for entries is Monday 3rd February 2020.
• Entry into the competition is free
• Applicants must be aged 18 or over.
• Video clips should be sent in standard video format.
• Applicants must be based in the UK.
• The photographer must have full copyright of all entered videos.
• All videos entered may be reproduced by the AGS and used in future AGS event and marketing literature without prior notice. This may include usage across the AGS’ social media channels, inclusion in the AGS Magazine and on the AGS website. The clips may also be edited by the AGS.