Cases - Southern Water Authority v Lewis and Duvivier

Record details

Name

Southern Water Authority v Lewis and Duvivier

Date

[1984]

Citation

27 BLR 111

Keywords

Contract administration

Summary

The terms of a contract can define and circumscribe the area of risk (in both tort and contract) which a contracting party chooses to accept at common law.

This case concerned the effect of the issue of a taking over-certificate on the liability of subcontractors in respect of the construction of a sewage works. The claimant authority had engaged the main contractor under the Institution of Mechanical Engineers' General Conditions of Contract, Model A form. Those conditions included provisions that:

• the taking-over certificate was not to operate as an admission that the works had been completed in every respect;
• the contractor's liability for making good defects and maintaining the works would be in lieu of any condition or warranty implied by law as to the quality or fitness for purpose of the works taken over under clause 28.

After considering a number of preliminary issues, the court held that:

• the subcontractors could not contractually obtain the benefit of the exclusion of liability in the main contract because they were not signatories to that contract nor had the main contractor entered into it as the subcontractor's agent;
• the subcontractors did owe a duty of care to the claimant authority, but the effect of the taking-over certificate issued by the engineers was to exclude the subcontractors' liability in tort.