NEC3 Option B
A Subcontractor is undertaking the groundworks package on a highway scheme. The method of working requires the Subcontractor to work in various areas either side and in the middle of the existing highway. As such, the main Contractor has provided metal safety/pedestrian barrier to the Subcontractor in order for them to isolate their working areas from the public.
The subcontract documents state ‘crowd barrier by main Contractor’, with no further details stated. It was verbally agreed in the pre-start that the Subcontractor would be provided with the barrier, but would thereafter be responsible for moving the barrier around site as required.
Recent high winds resulted in a barrier blowing in to a passing vehicle and causing damage (requiring repair). The main Contractor believes that as the Subcontractor is responsible for managing and using the barrier, the Subcontractor is responsible to pay for the car repairs.
The Subcontractor however, claims that as they are provided by the main Contractor, the main Contractor is responsible to pay for the car repairs.
Any commentary as to the financial liability is greatly appreciated.