Within an NEC3 ECC construction contract the contract states one of Employers Risks as being “ any asbestos material affecting the works”. The Employer directly engages a specialist asbestos subcontractor to carry out his survey and asbestos removal as required. Two boilers are to be repaired.
Once the first boiler work is complete and has run for a set period of time without problem, the second boiler work can be commenced – the first task being the removal of asbestos by the Employers directly employed asbestos subcontractor prior to the Contractor’s boiler works.
Believing the first boiler would work correctly, the asbestos removal date for the second boiler was planned and agreed with the asbestos subcontractor.
A fault then arose on the first boiler which took 4 weeks to clear. Once the fault was cleared the asbestos removal was reprogrammed for 4 weeks later than originally planned.
The Employer however, was informed by his asbestos subcontractor that, being busy, he could not carry out the asbestos removal for a further 8 weeks.
The works have slipped by 12 weeks and prolongation costs are being .debated.
The Contractor is accepting 4 weeks delay are his liability due to the fault on the first boiler.
- Who is liable for the additional 8 weeks delay by the asbestos removal subcontractor assuming no change to X18?
- Who is liable for the additional 8 weeks delay by the asbestos removal subcontractor given that X18 has been amended to read "“The Contractor shall not be liable to the Employer for any Indirect Losses”