Defects after practical completion - Construction Contracts - page 185

109 The contractor has re-laid a defective
floor at the end of the rectification period.
Can the cost of re-laying the carpet be
deducted from the final account?
Under SBC clause 2.38 and similar clauses under other JCT contracts, the contractor is en-
titled to return to site to make good those defects notified to it in the schedule of defects
delivered by the architect at the end of the rectification period. The defects in question are
defects,shrinkagesandotherfaultsthatareduetomaterialsorworkmanshipnotbeinginac-
cordance with the contract or to a failure by the contractor to carry out its obligations under
the contractor's designed portion. An appropriate deduction is to be made from the contract
suminrespectofthosedefectswhichthearchitect,withtheemployer'sconsent,hasinstruc-
ted the contractor not to make good.
It is assumed that the carpet, to which the question refers, was purchased and laid by the
employer after practical completion of the Works. The defects are breaches of contract on
the part of the contractor. The question is whether the contractor is liable for the cost of
having the carpet professionally re-laid after the remedial work. The answer to the question
depends on the principle of foreseeability. In other words, was it obvious to the contractor
at the time the contract was executed that a defect in the flooring which would have to be
put right by the contractor completely re-laying the floor would also require the re-laying
of carpet, installed by the employer after practical completion, of the same type and qual-
ity as was in fact the case? If the answer to that question is 'Yes', the contractor is liable
for the cost of re-laying the carpet. 1 However, that cost cannot be deducted from the final
account by the architect in the final certificate, because the carpet is not part of the Works.
The employer has the choice either of taking action against the contractor for the cost, or -
the simpler method - of deducting the cost from the amount due in the final certificate after
having served the appropriate pay less notices under clauses 4.13 and 4.15.4.
If it was foreseeable that the employer would lay a carpet, but not of such quality or re-
quiring such care in laying, the contractor would be liable only for the kind of costs that
would be reasonably foreseeable. 2