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Construction Law/Protection of the Works

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Question
Hello John,

with regards to Protection of the Works.
We are a subcontractor of the Main Contractor.
We do have an obligation on our Subcontract to protect our works until they have been handed over.

we have protected our works by covering marble floors with sheets of plywood for example. However the Main Contractor's MEP Subcontractor has been late with their works and they have placed heavy duty scaffold on our protected floors to complete their works but they have damaged our marble floors in doing so.

We have notified the Main Contractor about the damages and additional time and costs require to rectify these damages. Howwever the Main caontractor has sumarily dismissed all such claims stating that it is our responsibility to protect the works until hand over.

I do not think it is fair and reasonable for the Main Contractor to behave like this and i believe that we do have some rights here. Should the Main Contractor not take our claim and pass the claim onto their MEP contractor?

Thanks
Marc

Answer
Dear Marc,

Thank you for this question.

The comparison to be made here is with what you reasonably expected to be your obligations when you tendered for the work compared with those you are actually being required to perform given the fact that some trades are running late. The wording of the contract will be important but at this time I consider that your obligation is not an open ended one; you should not be expected to  allow for all eventualities.

If you could have expected the area to be subject to light foot traffic only at this time, you have a potential claim for going beyond providing matting to the floors.

You placed plywood on the floor, which should have been sufficient for most other circumstances. Was the cracking then a consequence of the MEP contractor moving the plywood or because the localised loading of the scaffold was not absorbed by the plywood? These are considerations that need to be made and the facts established as far as possible.

At this stage I think you have an arguable case that the MEP contractor should be held liable.




I hope that this assists you.

Kind regards,
John Dowse

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John Dowse

Expertise

Legal; contract interpretation; quantum; delay analysis. Practitioner in arbitration, adjudication and mediation.

Experience

Thirty-three (33) years experience in building and construction, at all levels both within contracting and consulting organisations. Practising arbitrator, adjudicator, and mediator. Faculty approved trainer for the Chartered Institute of Arbitrators. Lecturer on construction contract forms and dispute resolution practices.

Organizations
Chartered Institution of Civil Engineering Surveyors Chartered Institute of Arbitrators Institute of Directors Society of Construction Arbitrators

Publications
Various UK and International construction and legal publications.

Education/Credentials
LLB (Hons), Pg Dip (Legal Practice), MCInstCES MCIArb MIOD Barrister

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