Other obligations on commencement of the works

Taking possession of the site and commencing the works is likely to trigger a number of important obligations and potential liabilities on the part of the contractor.

Once in occupation of the site, the contractor will be in primary control of the activities which take place upon it. Therefore, the contractor may be liable directly (or by way of a contractual indemnity given to the employer) in negligence or nuisance for damage to or interference with the property or land of adjoining owners or occupiers. This may arise in a number of different ways, such as noise, vibration, the creation of dust, etc. The contractor will also need to guard against:

• potential liability for trespass (e.g. tower cranes over sailing neighbouring properties without a licence/permission); and
• the escape of matter from the site under the rule in Rylands v Fletcher [1868] UKHL 1 (i.e. where the defendant knows or ought to foresee, at the time of storage, that a dangerous thing which is stored on their land might cause damage if it escapes. Once there is such knowledge or foreseeability, the defendant is liable even if he or she takes all reasonable care to prevent the escape).

If, as is usually the case, the contractor is in control of the works, they will be in occupation of the site for the purposes of the Occupier's Liability Act 1957 and will, therefore, owe lawful visitors a duty to see that the site is safe for the purposes of their visit. Furthermore, by reason of section 1 of the Occupier's Liability Act 1984 (as amended) if the contractor is or should be aware that a trespasser may be in the vicinity of a danger on the site and it is a risk against which, in all the circumstances, the occupier should offer protection, they owe the trespasser a duty to see that they do not suffer death or personal injury by reason of the danger.

Insurance

Upon commencement of the works on site, the contract is likely to impose upon the contractor the obligation to insure against certain eventualities. For example, under the JCT 2016 Standard Forms of Contract, the contractor may be required to insure against:

• personal injury/death and property damage (clauses 6.4 and 6.5);
• the works executed and site materials (clause 6.7);  
• terrorism (clause 6.10); and
• professional indemnity (clause 6.15).

It follows that all necessary arrangements for the contractually required insurances need to be in place prior to the commencement of the works and the taking of site possession, and the obligation to maintain insurance will subsist for as long as required under the terms of the contract.