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?