JCT D&B 2016: EA liability for Quality of Materials and Workmanship

The Employers Agent has a liability and obligation in respect of certifying the quality of the work under the JCT D&B contract 2016 (both materials and workmanship)

Scenario - If the contractor decides to change the insulation to a different brand without formal approval (where the brand is specified within the Employers Requirements) which is not discovered during the works and only transpires after PC has been granted.

Do the Contractors D&B designers have a duty of care in respect of quality of materials and workmanship? Even if not expressly included in their appointment with the D&B contractor?

The contractor has the overriding obligation to provide the works in accordance with the ER’s, yet they have not. As PC has been granted, does this diminish the Contractors responsibility and increase the EA’s liability, who could then receive a claim on their PII?

Can the D&B Designers , whether novated or not, be obligated through a predetermined schedule of services provided in the Contract Documents, to inspect the works and report on quality of materials and workmanship?

Does this diminish the EA’s responsibility or at least be culpable?

That is quite a series of questions!

  1. the D&B designers as a whole will generally not have a supervisory obligation if not set out in their appointment. That said, it is possible to find that such an obligation has in fact been taken on. Sorry, this one is a bit of “it depends”

  2. The fact that the Contractor has not complied with its contract does not generally shift responsibility to the EA as it is unlikely that the EA will have caused any damage save where, perhaps, the contractor is bust so can no longer be held accountable and the EA should properly have done something before that occurred.

  3. Yes the designers can be obligated to inspect and therefore take on liability for a negligent inspection.

4)The imposition of another party carrying out check does not reduce the requirement on the EA to carry out any necessary check. However, there may be some contribution from any defaulting party to the overall loss.