2022-04-24（221）Engineering law and the ICE Contracts

2. “THE CONTRACTOR SHALL TAKE FULL RESPONSIBILITY FOR THE ADEQUACY STABILITY AND SAFETY OF ALL SITE OPERATIONS AND METHODS OF CONSTRUCTION”—RESPONSIBILITY FOR TEMPORARY WORKS. This is a suitable place to deal with a matter on which clear guidance from the law is of great practical importance, but unfortunately is lacking. The complex question of responsibility for temporary works may be analysed under four headings: (i) responsibility of the contractor to the employer; (ii) responsibility of the engineer to his client; (iii) responsibility (or rather lack of responsibility) of the employer via his engineer to the contractor as such; and (iv) responsibility of the employer, engineer and contractor to employees and members of the public.

(i) The contractor’s responsibility to the employer is clear-cut. By this clause the contractor is responsible for the “adequacy stability and safety of all site operations and methods of construction”, but not for the design of temporary works designed by the engineer. If temporary works not designed by the engineer (i.e. designed by the contractor or a sub-contractor, including a nominated sub-contractor (p. 229)) are inadequate or defective the contractor must supplement or rectify them in order to perform his contract by completing the permanent works. If damage to the permanent or temporary works does occur as a result of such deficiencies, the contractor (or his insurers) are liable under cls. 20 and 21.

In the process of achieving satisfactory temporary works the contractor may become entitled to extra payment (pp. 87 and 170), but the engineer’s approval of temporary works does not relieve the contractor of liability (cl. 14 (7)). For the engineer’s other powers of control see cls. 13, 39, 40,49 and 51.

(ii) The engineer undoubtedly has a duty to his client to ensure that the completed permanent works will not be adversely affected by stresses due to the contractor’s temporary works, and that duty he carries out in the first instance by a proper specification, by actually designing temporary works where it would not be satisfactory to leave the design to the contractor, and by exercising his powers of control, keeping in mind the dangers of opening the way to claims (above). The engineer must also ensure that temporary works are in fact built in accordance with his or the contractor’s design, at least in so far as necessary to avoid detriment to the completed permanent works.

One of the problem areas is whether the engineer has any duty to his client to see that temporary works are designed and built satisfactorily even in respect of defects that will not have physical repercussions on the completed permanent works. A relevant consideration is that the employer seeks works finished on time, not a right to damages against the contractor, and a serious failure of temporary works may delay completion of the permanent works. In addition, even if he is entitled to an indemnity from the contractor the employer scarcely will be happy to have injuries to life in the course of works being constructed for him. Actual or threatened damage to neighbouring property may halt the permanent works by way of an injunction (p. 430). It is suggested that given the terms of cls. 8 (2) and 14 (3) and the protection obtained by the employer from the contractor’s liability (and insurance), and in the absence of any special term in the engineer’s service contract, the true position is that the engineer has a limited duty. That duty (it is submitted) is to take steps to have remedied any defects in the methods or results of constructing temporary works that are apparent on the normal site inspections, but not to go out of his way to prevent or search for such defects independently of his design and inspection of permanent work. jj

(iii) It is worth emphasising that the engineer has no duty to the contractor as such to detect or prevent faults in temporary works (or the permanent works). The engineer is appointed to protect the employer, not the contractor. The argument often put forward in practice that it is somehow an excuse for faults in workmanship or materials that they were not objected to by the engineer or resident, is to imply that the employer is in a worse position if he engages engineers to supervise the contractor than if he does not. In particular the engineer has rights of control under cls. 8, 13 and 14, not duties, and refer to cl. 39 (3). kk