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NEC ECS: Who is liable after Take Over of part of the Works?
Under an NEC3 ECS Option C subcontract if the Employer has taken over part of the works (a public cycle-way through the site) who is liable if there is an accident on the cycle-way?
Cl 80.1 states that an Employer's risk is loss of or wear or damage to the parts of the works taken over by the Employer, except loss, wear or damage occurring before the issue of the Defects Certificate which is due to;
. a Defect which existed at take over,
. an event occurring before take over which was not itself an Employer’s risk or
. the activities of the Contractor on the Site after take over.
If the cycle-way is through the Site but not in use or affected by the Contractor and a cyclist looks to issue an claim should they be going to the Employer? If the works and the accident is found to be due to a defect then the Contractor would be liable until the Defects Certificate - correct? If it is for the cycle-way not being maintained post take over would that be down to the Employer?
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You are correct in looking at clause 80.1, however it is the first main bullet that you should be looking it as this concerns 'claimed, proceedings, compensation and costs payable'. And the reason would depend on why the accident happened - if it was a fault of the Employer's design whatever Contractor had built it, it would be the Employer's risk.
However, if it was because of something which could be linked back to the Contractor, then it might well be the Contractor's liability. If it was a mixture, then the indemnity clauses of 83 would come into play (or if it was the fault of the Contractor, but they sued the Employer and vice versa).
Do note that the PM could have (past tense) changed the Works Information to avoid takeover under clause 35.2.
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