Civil Engineering Reference
In-Depth Information
it does not. It accords with it. The overall intention is that the contractor shall not be liable
to perform any part of the nominated sub-contractor work. That is why, under clause 27, he
is entitled to demand a re-nomination if the nominated sub-contractor drops out, and why
the nominated sub-contractor can be rejected if he will not enter into a contract containing
the provision specified in clause 27(a)(ii). If the renomination includes remedial work and
defects in such work are later discovered he can call upon the sub-contractor to remedy them.
This is the plain intent of the parties. If the new sub-contract does not cover remedial work
that intention is defeated. In the present case all the original sub-contract work had to be
removed and the work started afresh. The submission that if the contractor did remove the
old work and start afresh he would not be doing work which
Bickerton
decides he is neither
obliged nor entitled to do is in our view wholly unsustainable. It is true that in the result the
employer will suffer a loss, but that this might happen was specifically recognized by Lord
Reid. There is no reason why he should do so if the contract contains no protective provision.
It is he who has chosen the sub-contractor who first did the defective work and then quit the
site, leaving the contractor no remedy for any delay resulting from the need to find a replace-
ment so long as the delay is not unreasonable. This delay could well be much more serious
financially than the cost to the employer of including remedial work in the new sub-contract.
If it is, the contractor must bear the burden. That the employer should bear the burden of
paying for remedial work does not justify construing remedial work as not including work
which the original sub-contractor would have been obliged to do had he not left the site.
(c) Are the contractors entitled to an extension for the 8 weeks' delay incurred by Gunite
before they withdrew?
Clause 23(g) of the contract included amongst causes of delay,
delay on the part of nominated sub-contractors which the contractor has taken all practi-
cable steps to avoid or reduce but such delay will only be considered for those reasons for
which the contractor could obtain an extension of time under the contract.
The words stressed were added in type at the end of the printed provision. Their meaning is
in our view plain. It is to ensure that the contractor does not get an extension for mere delay
on the part of the sub-contractor but can do so only if the sub-contractor's delay is itself due
to one or other of the causes of delay specified in the other sub-clauses of clause 23.
Gunite's delay was not so due. Accordingly we, like the learned judge, conclude that the
contractors are not entitled to an extension in respect of it.
(d) Are the employers entitled to charge the contractor with the full cost of remedial work
or only obtain the amount which they had already paid in respect of Gunite's work before
their withdrawal?
It is accepted that they are entitled to be credited by the contractors with the lesser amount.
Once it is concluded that the obligation to renominate includes the obligation to include
remedial work in the work to be done by the renominated subcontractor and that the contrac-
tors are neither entitled nor obliged to do such work, we can see no basis upon which the
employers can charge them with the cost of such work. In the course of argument [Counsel]
came very near to accepting that this must be so but sought to say that there was a route by
which they could be so charged. We can only say that we could not follow any route, however
ingenious, which leads to the result, in effect, that the contractors must bear the cost of work
the burden of which has been held to fall upon the employers, and which the contractors are
not obliged or entitled to do. We therefore reject the employers' contention.
In the result we would dismiss both appeal and cross appeal and affirm the judgment
appealed from on all issues.
