Non-negligent insurance
Produced in partnership with Fladgate

The following Construction practice note produced in partnership with Fladgate provides comprehensive and up to date legal information covering:

  • Non-negligent insurance
  • What is non-negligent damage?
  • What insurance is available for non-negligent damage?
  • What are the contract provisions?

Non-negligent insurance

What is non-negligent damage?

If damage is caused to neighbouring property by the contractor’s negligence or breach of contract, the contractor will be liable in the tort of negligence or nuisance to the owner of the property which has been lost or damaged. See Practice Note: Negligence in construction.

The adjoining owner may sue the contractor or the employer as the party for whom the work is being carried out. The contractor has to provide an indemnity to the employer against claims for damage to property caused by the contractor’s negligence or breach of contract. If the employer has been sued, it can then claim an indemnity from the contractor against damages awarded.

The difficulty arises when damage caused to a neighbouring property is not due to the contractor's negligence or breach of contract—non-negligent damage.

The problem first arose in a 1958 case, Gold v Patman and Fotheringham in which damage occurred to the adjoining property to where the work was being carried out. The damage suffered was caused by a loss of support to the building. The owner of the works was found liable for the tort of nuisance to its neighbour and sought to reclaim the damages from the contractor. However, there was no evidence of the contractor's negligence in carrying out the works, and so the contractor’s obligation to indemnify the employer

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