Does an owner engaging a third party to carry out part
of the contractor's original scope of works relieve the
contractor from its duty to ensure that the works are carried out
in a proper and workmanlike manner?
During the construction of a house, the owner decided to engage
a third party to construct a balustrade that originally formed part
of the contractor's scope of works. After the house was
completed, the owner was seriously injured when the balustrade
collapsed in the first week of occupation.
The owner sued the contractor in contract for failing to carry
out the balustrade work in a proper and workmanlike manner, in
that, amongst other things, the contractor failed to properly
supervise the installation of the balustrade and failed to ensure
that the balustrade was installed in accordance with the relevant
The contractor contended that the balustrade was omitted as a
provisional sum item and ceased to form part of the work to be
completed by the contractor under the building contract.
The Court of Appeal held that the third party contract that the
owner had entered for the balustrade works was not necessarily
inconsistent with a continuing liability of the contractor under
the building contract for the installation of the balustrade
"The effect of the building contract was that the
(contractor) was responsible for ensuring that all work which fell
within it (whether or not the work in question was carried out by
the (contractor) personally or by some other party such as a
subcontractor) was carried out in a proper and workmanlike
It was held that nothing in the conduct of the parties revealed
an intention to omit the balustrade works from the building
contract. The fact that the owner forwarded invoices received from
the third party to the contractor, who told the owner and the third
party that he would arrange payment of the invoices, was consistent
with an intention that the contractor remained responsible for
supervising the balustrade installation work and ensuring that it
was carried out in a proper and workmanlike manner.
The giving of the work to a third party without the
contractor's consent is ordinarily a breach of the building
contract. It was therefore open to the contractor to refuse to
consent to the proposal or to impose its own terms on that consent.
The contractor would not have been liable had it demanded a release
from liability as the price of giving its consent to transfer the
balustrade work to the third party.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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