Tort Law and Dispute Resolution in Construction Projects Case Study

Common Legal Issues in Rehabilitation Center Construction

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Task 1: Part A

(a) Tort

The tort is basically some wrong acts that can produce harm to other persons or entities and which defines as civil wrongs and the courts can take charge against this. The violation of legal rights refers to the injury and the term harm refers to the situation where an individual suffers. From the given scenario, it can be understood that there was coal mining existed in the mentioned area. This is the main reason, that the residents of the surrounding area are faced different types of problems about the coal mine. One of the major problems they faced is the pollution that occurred due to the coal mine. Several gases that erupted from the coal mine are toxic and very harmful to the health of residents (Guo& Lu, 2021). Another tort that is mentioned in the given scenario is the illegal dumping of domestic and industrial waste. From the engineer’s report, it is mentioned that the illegal garbage consists of many dry cells of the batteries that are used for industrial purposes and wastage of the used oil. Material waste is very toxic and harmful to humans and is illegal to dump except in particular areas. There were civil laws existed for it and the court of laws can take strep against it. These kinds of torts are mentioned in the given scenario.

(b) The legal definition of nuisance

The term of legal definition of nuisance means the matter of any substantial or unreasonable interference with the enjoyment or usage of someone’s property. Whenever any person or any big organization illegally and unreasonably interferes with any right which is to be shared by the common people. Legally any case of nuisance lies under the section of damage and the court can take legal actions against it (Syed et al.2021). The given scenario mentioned that there is a site existed and a rehabilitation center would be constructed on it. A petrochemical plant existed on this site in previous times. The buildings are withdrawn from it and science then the site is not used for any construction. There was a lot of toxic and harmful waste produced by the chemical plant. Which created several hazards and dangers for human health. It can be understood that the types of the wastages can erupt from the petrochemical plant. The site is located between a congested areas of residents which has a history of vandalism. Apart from the rehabilitation center which is proposed, is to be constructed on a brownfield site and more spaces will be engaged. For these reasons, the local residents are unwilling to give permission for this project as the whole residents could suffer from the pollution of construction.

(c) The legal definition of the trespass

The legal definition of trespass is entering someone’s land or property without permission or without informing them about the entrance. This phenomenon lies under the section of several tort laws which are agonist the illegal trespassing. If any individual physically invades someone’s land then the person is liable for trespassing according to the laws. The provided scenarios describe that there is land on which a rehabilitation center would be constructed (Cheung et al.2020). The proper location and the dimension of the area are provided in the given survey report. One scenario is also provided that there is no security fence installed along with the perimeter of the land. Due to this matter, the phenomenon of illegal trespassing could be provoked. This providedreport of survey is showing the dimension of the land but there is no security fence is installed or barricade is provided, without any proper barricade it is impossible to understand what the boundaries are.

(d) The legal definition of negligence

The meaning of the legal definition of negligence is the failure to behave according to the level of any significant performances under any particular circumstance. In the given scenario there are a lot of examples of negligence related to the construction. The first case of negligence is to avoid the reasons for the resistance of the local resistance. The given site is located in a very congested area where surrounded by local residents (Badiet al.2021). Previously there was a petrochemical company existed on the site and the wastage of that plant caused many problems for the residents. Another example of negligence is the illegal dumping of toxic waste which includes the dry cell of the batteries and metal swarf which are utilized for industrial purposes. These wastages are the reason for several pollutions and consist of the danger of many diseases.

Part B:

The common methods of dispute resolution for rehabilitation center

Introduction

This section holds information about the report which is based on the common methods of dispute resolution that consisted of the construction industry. There are many reasons why these disputes happened in a construction project. The provided case scenario states that a rehabilitation center is to be constructed on a site that is located in a congested area surrounded by local residents. There are many problems for the locals regarding the construction of the building. Several illegal activities happened in that place during the petrochemical company which was existed earlier. This report discusses the reasons for those disputes and common methods to mitigate the disputes.

Discussion

Dispute resolution in the construction industry refers to the sectors that are left during the execution of any project (Illankoonet al. 2022). As many individuals are involved with any big project, which makes the task more complex, and due to this there are some spaces that are left or yet to reach their full potential. In the given scenario there is a site that holds a rehabilitation center. The survey report and the elevation of the floor of the building are provided and all the dimensions are given. During the execution of the project, several common methods are applied for the mitigation of disputes. The first common method is negotiation with all the parties and representatives. Direct negotiations with all the representative parties is a common dispute resolution process that does not allow the involvement of any third party.

Figure 1: Factors influencing dispute resolution

It is an unstructured voluntary process that is agreed upon by both parties confidentially and privately (Sadri et al. 2022). As per the given scenario, this negotiation process should be held between the project management and the representatives of the local residents. The problems are discussed between them and the management can understand the issues that the locals have to face. Both parties can reach a proper solution that can satisfy the management as well as the local residents.

Figure 2: Steps of mediation

Another common method can be said to be “litigation” which refers to the resolution of disputes. This process mainly focuses on the legal terms and laws which will be violated if the project goes on without any correction (Alaloulet al.2019). This process is very confidential and involves the representation of both parties as the management of the locals. It supports the proposal of efficient implementation of the supervising method regarding legal issues. According to the given scenario, several legal laws are violated for the construction of the rehabilitation center on the site. The first issue is that this building is placed in a site that is a congested area. The other one is the illegal dumping of garbage (Maitiet al.2021). As the local residents previously faced problems based on illegal dumping of garbage during the petrochemical plant. The next is the materials that are erupted as garbage. There are some toxic materials dumped as the waste of chemical plants which creates pollution and is harmful for locals. Although the project is approved to go on, these legal issues can still be raised during the execution. Through this litigation process, these legal issues can be addressed in the presence of both parties.

The next common method is mediation which includes the presence of a third party involvement. As this method allows the involvement of a third party, the suggestion from the mediator carries value for the main parties (Sinha et al.2020). This method is used in case of any broken negotiation between the main parties or for approval of a decision taken by the management and the locals. The mediator has no authority to assign a proposal or judge any legal rights for the engagement party. The main solution in terms of legal issues is discussed by the main parties. The mediator is assigned only for the approval of the proposed solution and for suggestions that give a further correction to the plan. The legal issues can be met without any third-party involvement which is the process of arbitration (Kim & Chi, 2019). This process holds also the same work of planning the legal issue but this is done between the two main parties. This process is very effective as it holds more privacy, and confidentiality than the litigation process and it is very cost-effective.

The next common method of dispute resolution for the construction industry is conciliation which includes the use of the references of mediation. This method basically includes the shuttle diplomacy policy in which an independent third party listens to all the disputants about their issues. The third party does not have to meet the parties in private as the whole conversation happens in presence of the all parties.

Figure 3: Litigation dispute methods

The conciliators here is to put forward the proposed suggestion in form of writing and initiate the execution process (Lin & Fan, 2019). Adjudication is the next common method of dispute resolution, in this process, the draft is made about the abbreviation proposed from both parties. This method is introduced to shorten the whole process of execution of the planning. The abbreviations are often huge in size and several segments are met in them. By making the draft format a short report of the abbreviation is made which consists only of the main and important parts. Through this process, the draft is used during the execution time and the amount of waste of time is reduced due to this draft format. There are some disputes which have to wait until the finish of the whole task. These disputes can be identified by creating this draft and can be solved at the same time as construction. Both parties have to come to a settlement that offers the best solution that addresses the issues of the local residents.

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Conclusion

The conclusion part holds a brief of all the information and common dispute methods that are discussed throughout this report. There are many reasons for generating disputes in any project which include involving several individuals in one task. The methods to mitigate these disputes are also discussed elaborately according to the task. The methods like negotiation and litigation can give exact solutions to the disputes that take place between the management and the locals. All the information related to this topic is given in this report to help the studies that will take place in the coming future.

References

Journals

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Sadri, H., Pourbagheri, P., &Yitmen, I. (2022). Towards the implications of Boverket's climate declaration act for sustainability indices in the Swedish construction industry.Building and Environment,207, 108446, Retrieved From:https:https://www.sciencedirect.com/science/article/pii/S0360132321008428 [Retrieved on: 28/03/2023]

Alaloul, W. S., Hasaniyah, M. W., &Tayeh, B. A. (2019). A comprehensive review of disputes prevention and resolution in construction projects. InMATEC web of conferences(Vol. 270, p. 05012). EDP Sciences, Retrieved From:https:https://www.matec-conferences.org/articles/matecconf/abs/2019/19/matecconf_concern2018_05012/matecconf_concern2018_05012.html [Retrieved on: 28/03/2023]

Maiti, S., & Choi, J. H. (2021). Investigation and implementation of conflict management strategies to minimize conflicts in the construction industry.International journal of construction management,21(4), 337-352, Retrieved From:https:/https://www.tandfonline.com/doi/abs/10.1080/15623599.2018.1536964 [Retrieved on: 28/03/2023]

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