2022-06-22（274）Engineering law and the ICE Contracts

5. CROPS. This para. (i) and a change to para. (ii) recognise certain difficulties about placing liability for damage to crops on the site on the contractor. That liability is now placed on the employer. Despite the fact that the second sentence of sub-cl. (2) is not stated to apply to the case of damage to crops, it appears that the employer will have a statutory right of contribution (p. 95) from the contractor in any case where the damage is due to the contractor’s negligence, e.g. in using greater working space than reasonably necessary. Unfortunately the position is not altogether clear; it might be argued against such a reading that it makes para. (i) unnecessary because the employer’s liability is then covered by para. (iv), but on balance that does not seem to be fatal to the argument since there is other overlapping in paras. (i) to (v).

5(a). INTERFERENCE WITH EASEMENTS, ETC.—is discussed in ch. 15. Liability for interference will not normally be covered in fact by the contractor’s public liability policy, which will be restricted to material damage.

6. UNAVOIDABLE DAMAGE. A large, but just, new limit on the contractor’s liability. Normally a contractor can obtain public liability cover for accidental damage only, and damage which is the unavoidable result of constructing the works in accordance with the contract is not accidental. There is no reason why the contractor should bear the cost of such damage out of his own pocket. hh

This exception may be extremely important, e.g. for piling in a heavily built-up neighbourhood, damage by traffic to pavements where the work necessarily obstructs roads, etc. The exception by its wording applies not only where it was or should have been foreseen when the original design was being prepared that damage was unavoidable, but also where, for example, unexpected ground conditions render damage unavoidable from a design that would have been perfectly satisfactory in the ground conditions foreseen at the time of contract.

The relief from liability given to the contractor by this paragraph applies only to liability for “damage” and does not extend to injury to persons that is the unavoidable result of the construction of the works. As stated, it is difficult to obtain such cover in a public liability policy, although an employer’s liability policy commonly is not restricted to accidental injury.

Refer also to N. 8.