Design liability under the NEC form of contract

In SSE Generation Limited v Hochtief Solutions AG and another decided on 21st December 2016, the Court of Session in Scotland considered a contractor’s potential design liability under the NEC Form of Contract. It concluded that the contractor was not obliged to guarantee the performance of the works where Option M (X15) was adopted so that the contractor would not be liable for defects in the works due to his design so far as he proved that he used reasonable skill and care to ensure that it complied with the Works Information.

The court held that to impose strict liability on the contractor would effectively rob Option M of its meaning and make redundant some of the other provisions regarding repair and maintenance. The court also considered important issues relating to mitigation of loss and expert evidence.

Continue reading