INGENIEUR
is actually very wide encompassing acts,
defaults, breaches, omissions and even
some breaches of statutory duty.68
●●
●●
notwithstanding, the apparently wide
scope of the contractor’s said liability, it
is nevertheless ameliorated by expressly
stipulated exceptions; these being mainly
in regard to:
>> those ‘acts or defaults’69 caused by the
employer and/or persons for whom the
employer is responsible;70
>> the persons subject to this provision are
the employer, the consultants, contract
administrators or their authorised
representative; and
>> those losses or damages caused by
specified perils where the employer has
assumed the risk under any insurance
policies taken up by the latter;71
>> these persons are absolved of liability by
reason of ‘any negligence or omission’
on their part or ‘in failing to supervise or
control the contractor’s site operations
or methods of working or temporary
works, or to detect or prevent or remedy
defective work, or to ensure proper
performance of any obligation of the
contractor under the contract’.76
>> those arising upon the permanent use
or occupation of the works or any part
of the works by the employer;72 and
>> those arising due to the unavoidable
consequence of the contractor’s
execution of the works or the making
good of the defects of the works in
accordance with the contract.73
D Chappell and V Powell-Smith in The
JCT Design and Build Contract74 are of
the opinion that the contractor’s liability
does not also apply to loss or damage
‘ … to the works or materials on site
up to the date of practical completion,
partial possession of a particular part or
determination’.
68
69
70
71
72
73
74
75
76
77
6
72
in regard to the first exception above,
most conditions of contract now expressly
state that notwithstanding the presence
of the said exception, the contractor’s
indemnities shall not be defeated nor
reduced in the event the employer or its
contract administrators or their authorised
representatives have negligently caused or
contributed to the loss or damage resulting
thereby.75 Here, it should be noted that:
Despite attempts by employers to shift
the said liability to the contractor through
such express stipulations, it is clear that
the courts construe such provisions
very strictly, often applying the ‘contra
proferantum’ rule of construction. In Arthur
White (Contractors) Ltd v Tarmac Civil
Engineering Ltd,77 it was held that clear
words must be used by the employer to
allow it to enforce the indemnity clause
notwithstanding the employer’s own liability
for negligence to the third party.
See Letang v Cooper [1965] 1 QB 232.
This includes ‘negligence, omissions, etc.’.
See cl 38.2(b) JKR Forms 203 & 203A (Rev 1/2010), etc.
See cls 20B.1–B.5 or 20C.1–C.5 PAM Contract 2006 (With Quantities), PAM Contract 2006 (Without Quantities),
etc.
See cl 21.1(2)(a) IEM.CE 2011 and ME.2012 Forms.
See cl 21.1(2)(b) IEM.CE 2011 and ME.2012 Forms.
(2nd Edn) p 255.
See cl 18.4 PAM Contract 2006 (With Quantities), PAM Contract 2006 (Without Quantities); cl 24.4 JKR Sarawak
Form (2006), etc.
Ibid; see also Sukumaran v Building Construction Co (Malaya) Ltd [1969] 1 MLJ 233.
[1967] 3 All ER 586, [1967] 1 WLR 1508, HL; see also Walters v Whessoe Ltd and Shell Refining Co Ltd [1968] 2
All ER 816.
VOL
- MARCH 2016
VOL65
55JANUARY
JUNE 2013