7. “THE ENGINEER”. The honour afforded to the engineer of separate mention in this paragraph (but inconsistently not in sub-cl. 1 (a)) is otiose. The engineer is already included as an agent of the employer in making the design and supervising construction of the works:

Employer held liable to indemnify a contractor under the paragraph of the 4th edition I.C.E. conditions similar to but narrower than this paragraph, but which does not specifically mention the engineer, against liability for subsidence of a shop neighbouring the works. The subsidence was due to a change by variation order in the line of a sewer. The contractor had carried out properly the close sheeting required by the engineer, who had given no instructions to shore the neighbouring building. ii

8. The limitation “DURING THE CURRENCY OF THE CONTRACT” in the previous edition disappears from this paragraph. By that change and the new para. (iv) of this clause (N. 6) (and with cl. 24) the contractor is relieved from liability for claims due to negligence of the engineer in the original design of the works as well as in the design of variations after the contract has been made.

Notes to Clause 23:

1. “THROUGHOUT THE EXECUTION OF THE WORKS”. These words suggest that the duty to maintain Public Liability insurance under this clause ends with substantial completion of the whole works. Nevertheless it is most important for a contractor to keep in force at all times a general Public Liability policy for his business, because this clause does not affect the rights of a third party (including the employer) to claim for damage to property or injury due to negligence by the contractor. However many years it may take works to fall down or cause harm from defects, the contractor is liable for the personal injury or damage to property caused if the failure or defects are due to his negligence (p. 430). For the contractor’s continued liability to the employer for the defective work itself see p. 274, N. 2. jj