Q&As

A sub-contractor carrying out piling works damaged underground utilities at the site. The main contractor thought it had located the utilities before starting the works, but had not. The employer commenced proceedings against the contractor, but has since learned of the sub-contractor’s involvement. Should the employer continue its claim against the contractor? Further, do you have any guidance on the principle res ipsa loquitur?

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Published on LexisPSL on 19/10/2020

The following Construction Q&A provides comprehensive and up to date legal information covering:

  • A sub-contractor carrying out piling works damaged underground utilities at the site. The main contractor thought it had located the utilities before starting the works, but had not. The employer commenced proceedings against the contractor, but has since learned of the sub-contractor’s involvement. Should the employer continue its claim against the contractor? Further, do you have any guidance on the principle res ipsa loquitur?
  • Liability for the damage
  • Res ipsa loquitur

For the purposes of this Q&A it is assumed that:

  1. the employer owns, or has a proprietary interest in, the utilities that were damaged

  2. the employer’s claim is for loss resulting from the physical damage to the utilities

  3. the sub-contractor has not provided the employer with a warranty'>collateral warranty, or entered into any contract with the employer

Liability for the damage

Two related issues arise from the potential claims against the contractor and/or sub-contractor. The first concerns what course of action the employer may adopt. The second concerns the matter of substantive liability for the damage—ie which party is ultimately liable.

Regarding the course of action the employer might take, it is in practice common for a claimant to raise court proceedings against multiple co-defendants, where the defendants may each be liable for the damage caused to the claimant.

The claimant may, for example, claim that the co-defendants are jointly or severally liable in tort, and/or are in breach of separate contracts with the claimant, which breaches are said to have caused the damage. In construction disputes, an employer might therefore raise proceedings in respect of defective works against both the architect that designed the works and the contractor that built them. In such cases, the court may find that each defendant is liable for the entire loss suffered by the claimant, or that the breaches caused separate

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