Civil Engineering Reference
In-Depth Information
by the fire. The Court of Session held that the appellants were so liable. The appellants
appealed.
Held:
On the true interpretation of the contract, the contractor's liability set out in clause
18(2) was subject to the provisions of clause 20[C] which made existing structures and
their contents at the sole risk of the employer as regards damage by fire and other
specified perils. Clause 20[C] does not distinguish between fire due to the contractor's
negligence and other causes. Consequently, fire caused by a contractor's own negligence
falls within the exception to the contractor's liability set out in clause 18(2), and the
appellants were not liable for the damage.
LORD KEITH OF KINKEL: The provisions of the contract which principally bear on the issue are
to be found in clauses 18, 19(1)(a) and 20[C] of the standard form, which are in these terms:
Clause 18(1) The contractor shall be liable for, and shall indemnify the Employer against,
any liability, loss, claim or proceedings whatsoever arising under any statute or at common
law in respect of personal injury to or the death of any person whomsoever arising out of
or in the course of or caused by the carrying out of the Works, unless due to any act or
neglect of the Employer or of any person for whom the Employer is responsible. (2) Except
for such loss or damage as is at the risk of the Employer under . . . clause 20[C] of these
conditions . . . the Contractor shall be liable for, and shall indemnify the Employer against,
any expense, liability, loss, claim or proceedings in respect of any tempest, flood, bursting
or overflowing of water tanks, apparatus or pipes, earthquake, aircraft and other aerial
devices or articles dropped therefrom, riot and civil commotion (excluding any loss or
damage caused by ionising radiations or contamination by radioactivity from any nuclear
fuel or from any nuclear waste from the combustion of nuclear fuel, radioactive toxic
explosive or other hazardous properties of any explosive nuclear assembly or nuclear com-
ponent thereof, pressure waves caused by aircraft or other aerial devices travelling at sonic
or supersonic speeds), and the Employer shall maintain adequate insurance against those
risks. If any loss or damage affecting the Works or any part thereof or any such unfixed
materials or goods is occasioned by any one or more of the said contingencies then, upon
discovering the said loss or damage the Contractor shall forthwith give notice in writing
both to the Architect/Supervising Officer and to the Employer of the extent, nature and
location thereof and (a) The occurrence of such loss or damage shall be disregarded in
computing any amounts payable to the Contractor under or by virtue of this contract . . .
(c) If no notice of determination is served as aforesaid, or, where a reference to arbitration
is made as aforesaid, if the arbitrator decides against the notice of determination, then (i)
the Contractor with due diligence shall reinstate or make good such loss or damage, and
proceed with the carrying out and completion of the Works (ii) the Architect/Supervising
Officer may issue instructions requiring the Contractor to remove and dispose of any debris
and (iii) the reinstatement and making good of such loss or damage injury or damage
whatsoever to any property real or personal in so far as such injury or damage arises out
of or in the course of or by reason of the carrying out of the Works, and provided always
that the same is due to any negligence, omission or default of the Contractor, his servant
or agents or of any sub-contractor his servants or agents.
Clause 19(1)(a) Without prejudice to his liability to indemnify the Employer under
Clause 18 of these conditions the Contractor shall maintain and shall cause any sub-
contractor to maintain such insurances as are necessary to cover the liability of the
