2022-06-17（269）Engineering law and the ICE Contracts

6. “IF REQUIRED BY THE ENGINEER REPAIR AND MAKE GOOD THE SAME AT THE EXPENSE OF THE EMPLOYER”: CONSEQUENTIAL Loss. The contractor is entitled to reasonable charges for the repair, including profit (p. 32).

Under the words of this clause the contractor is entitled only to payment for rectifying the damage caused by the excepted risk, and not for his consequential standing time and other loss due to delay to the rest of the works whilst the damage is made good. If the damage was caused by negligence or breach of contract by or on behalf of the employer, the contractor may have a remedy for consequential loss under the general law (discussed at p. 396): for consequential loss from damage due to unforeseen conditions or obstructions he may have a cl. 12 claim (p. 65): he may conceivably have a claim under cl. 13 where the engineer’s requirements for repair of damage due to an excepted risk involve unforeseeable cost of delay or disruption (p. 74).

6a. EXTENSION OF TIME FOR DAMAGE TO THE WORKS. The contractor normally will be entitled to an extension of time under cl. 44 for damage to the works, but he may not be “fairly” entitled to any or to a full extension for delay due to damage wholly or partly the result of his own or a sub-contractor’s negligence or breach of contract. The employer may insure against delay for which an extension deprives him of the right to liquidated damages—p. 363.

7. “CONTRACTOR…LIABLE FOR ANY DAMAGE TO THE WORKS OCCASIONED …IN THE COURSE OF ANY OPERATIONS…FOR…COMPLETING ANY OUTSTANDING WORK OR…UNDER CLAUSES 49 AND 50”. TWO defects in the previous edition are cured. The contractor should make sure that this liability is covered by his insurance. For example, if his public liability policy excludes damage to property on which the contractor is or has been working, the liability must be picked up in his All Risks cover.