NEC ECC: Retained Plant Damage Risk Allocation

Currently doing a refurbishment project.

Client has an expensive piece of plant in the plant room, the surrounding kit is being
stripped out, replaced and the building re-roofed.

As project is based in England, sometimes it rains. The Contractor suggested as a mitigation strategy to protect the plant it should be containerised and safely stored off site. To avoid it being damaged during the course of the works.

PM decided to retain on site and box up the plant in a plywood crate insitu.
The risk in moving the plant was greater than leaving it insitu.

Now the expensive plant has potentially been damaged by some water ingress due to the re-roofing.

Question is - who pays for the repairs. The re-roofing works inevitably carry some risk but is it an unavoidable risk for the purposes of the works. Or negligence by the contractor or employer.

The very fact that it is boxed up by the Employer implies to me that, whilst it is within the Site, it is not part of the ‘works’, so how can the Contractor be liable for it unless they are the ones that have actively damaged it.

So with this in mind, when I read clause 80.1 for Employer’s risks I am looking for something which says it is either specifically an Employer’s risk or a main bullet point which says that it is an Employer’s risk but a sub-bullet point which specifically excludes it as such i.e. it is a Contractor’s risk.

On a first read through, the only potential one was '- Loss of or wear or damage to the parts of the works taken over by the Employer …" but this assumes that it was part of the works in the first place and that the Employer was not allowed to do something to it in the Works Information i.e. they have taken it over in accordance with 35.2.

However, on second reading the obvious pops out to me: ‘- Claims, proceedings, compensation and costs payable which are due to … - a fault of the Employer or a fault in his design… .’ So:

  • if it is the Employer who boxed it up, it is hardly your fault that either the design or the workmanship was inadequate to protect it from the rain.
  • if the PM instructed the Contractor to box it up to the Employer’s design and rain came in because of the inadequate design, it is the Employer’s fault/poor design.
  • if the Contractor was required to protect it to a level described in the WI and either their design&/or workmanship was faulty, it would fall upon the Contractor.