Building contracts often involve a multiplicity of documents, which sometimes have conflicting terms. In such cases, the liabilities under the contracts will depend on which of the various contractual terms has primacy over the others.
In a recent contractual dispute involving dredging and back-filling works, a clause that required a subcontractor to ‘check the design and accept responsibility’ for the works it carried out and to use ‘reasonable care and diligence’ in designing its works was deemed not to make the subcontractor liable when the works were found to need considerable rectification.
The reason for this was straightforward. The subcontractor’s tender document, which formed part of the bundle of contracts, contained a clause which rendered it ‘not responsible for the design of any of the …works’. This clause prevailed over the other clause and was sufficient to absolve the subcontractor from liability for the defective design of the works.