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By Carin van Wyk (Associate) and Daniellé Giannico (Associate) 

Construction (workmanship) Liability:

As a general rule there is an implied warranty on behalf of the Contractor that the work will be done in a workmanlike manner and that the materials will be suitable for the purpose for which they are used and of good quality. This includes construction methods employed by the Contractor but excludes instances where the Contractor has been instructed to make use of certain materials. 

The Contractor enters into the agreement with the Employer for the construction of the works as a whole (including the subcontractor works performed) which includes the quality of materials he uses unless the materials he is required to use have been specified by the Employer and he has no right of substitution. If the Contractor appoints a domestic subcontractor, the Contractor is liable for its own workmanship and the workmanship of its domestic subcontractor. 

In terms of the JBCC PBA, the contractor is under the obligation to use reasonable skill and care to construct the works.  It is well-established that the test is whether the Contractor exercised the skill and care of a competent person exercising that particular art, i.e. the reasonable Contractor. If the Contractor does not perform to this standard, his conduct may be held to be negligent. 

Defect(s) in terms of the JBCC PBA are confined to those which arise from the Contractor’s default due to the improper workmanship or use of improper or poor-quality material contrary to the terms of the contract. The Contractor in terms of its agreement with the Subcontractor will have a right of recourse against the subcontractor for failing to perform the works in a workmanlike manner.  However, the Contractor is responsible for the proper supervision of the subcontractor’s work on site and quality control during construction.


Design Liability

Design consultants who fail to exercise the reasonable skill, care and judgment required of a professional architect/engineer, in performing his or her services in designing and/or specifying the works, may be liable for defects attributable to a failure of the design and/or specification. This also includes the duty to supervise the construction of the works in accordance with the design and quality control during construction, however, this will be dependent on the terms of the applicable professional services agreement.

Where a “design and supply” method of construction is implemented, and the design consultant is not specifically responsible for the design of an aspect of the works, this professional would remain under an obligation to investigate the suitability of the product for its intended use on the project.


Manufacturer Liability

Construction defects can also be the result of product failure, rather than one of the abovementioned reasons. In this case the Employer or Contractor can have a claim against the manufacturer for breach of both express and implied warranties that the product will function as intended. The Employer will be responsible for a claim against the manufacturer in the instance that the product was specified by the Employer, otherwise, the Contractor may have to institute the claim and attend to the defect. However, it is important to note that one can only hold the manufacturer liable where the product in question was used as intended by the manufacturer.

Should you have further questions regarding defect liability, please feel free to contact one of our attorneys for in-depth assistance with your particular query.