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NEC ECC: Liability for an uncorrected Defect

+1 vote
I understand the principle behind clause 45 and that the PM "assesses" the cost of correcting a Defect but if the Employer decides to have a third party correct the Defect does this mean that the Contractor will no longer be accountable for that element of the work should a latent defect/issues appear at a later stage?

Obviously, the Contractor's argument will be should a latent defect/issue appear it is not his responsibility or fault and any issue is down to the work carried out by the third party.
asked Oct 2, 2018 in Testing and Defects by john.james (210 points)  

2 Answers

0 votes
Best answer
This isn't really an NEC question as the answer would be the same in any contract. The Employer would need to prove that the latent defect was a Defect under your contract, i.e. that it was caused by your original works (e.g. part of the works not in accordance with the Works Information) and not by the works of the other contractor.
answered Oct 6, 2018 by Neil Earnshaw Panel Member (24,390 points)  
selected Oct 6, 2018 by Glenn Hide
0 votes
It would depend on the cause of a possible Latent Defect.

If it is caused by workmanship or performance of materials then the Contractor could reasonably argue that it was the 'fault' of the Third Party.

If the Contractor had responsibility for Design, however, then that may be a different matter, depending also on whether there is a corresponding 'Fit for Purpose' or 'Reasonable Skill and Care' obligation.

The hard part, of course, would be proving whether it is one or the other.  For instance, a repair to a concrete structure by a Third Party may subsequently 'break up' again, although would you be able to determine whether it was caused by workmanship and/or choice of materials or whether the design of the structure didn't correctly apply and specified requirements for loading etc.
answered Oct 3, 2018 by Andrew W-I Panel Member (26,170 points)  
reshown Oct 6, 2018 by Glenn Hide