THE recent incident in the House between Hon. Guy Joseph and the Speaker caught my attention in relation to the very interesting issue of Contract Law. The sub-plot should not be lost on the engineering fraternity as the Speaker placed his legal hat on and started a very interesting discourse on liability under the Civil Code. The legal prowess of Peter Foster is well known, and thus his comment in response to the Member of the House was based on his understanding of the Civil Code Article 1558.
All contractors in Saint Lucia are of the opinion that the issuance of the Final Certificate after the Defect Liability/Notification Period relieves the contractor from all further liability of defects. In the specific matter, Hon. Guy Joseph was making the point that the recently awarded contract had an unusual clause that removed the defects notification period.
It is important to clarify the various terms and to understand how they came about. In the early 1960’s the term used in infrastructure projects to describe the one year period after completion of a project was – MAINTENANCE PERIOD. In the execution of projects, there was some confusion as the Supervising Engineer was requesting that contractors for example to clean the drains after the one year period. This was deemed unfair and this was a maintenance responsibility of the employer and not a defect.
Late,r after much debate, the term was changed to Defect Liability Period, to convey that it was only defects that were to be addressed by the contractor during the one year period. Again there were conflicts, as defects that were the clear responsibility of the employer were also being requested to be repaired. There was a name change again to DEFECTS NOTIFICATION PERIOD in which the contractor is notified of the defects and then a determination is made as to responsibility.
Hon Guy Joseph was saying that the Defects Notification Period for the project was from the commencement of the project. He was therefore contending that the contractor was only liable for defects discovered during the execution of the works, and on completion of the project can walk away with no responsibility to fix any pothole that appears. The Speaker responded by saying that under the Civil Code that even if that is so written in the contract, there is a continued responsibility of the contractor for defects. In legal language Article 1558 creates a delictual or tortious liability ( these lawyers have a lot of lyrics).
Article 1588 of our Civil Code provides as follows: Liability under 1588 – Builders “If a building perish in whole or in part within ten years, from a defect in construction, or even from the unfavourable nature of the ground, the architect superintending the work, and the builder are jointly and severally liable for the loss.
It means that, as put so nicely by a an OECS High Court Judge, ‘’mere proof of the fact that the building perished in whole or in part within 10 years of its construction and of the resultant loss or damage automatically shifts the burden to the builder or contractor to bring himself within the exculpatory defences … Unless he does so, he is absolutely liable to the proprietor.’’
Our law is saying that if you engaged a contractor to build your house and there is a defect you observe nine years later, you can hold the contractor responsible.!!
The interesting legal argument is whether this Article can be extended to an infrastructure project. Article 1588 clearly refers to buildings, can a road project be so described under this Article.
An important secondary consequence of what may be seen an unsavoury episode in the House is the need to have contractors in Saint Lucia obtain the relevant insurance to cover their liability under the Civil Code as exists in France where there is a similar construction of the law. Owners should now be more aware of the recourse to poor workmanship by contractors.
I am of the opinion that while Article 1558 exists within our Civil Code it has never been tested within our courts as far as I am aware, on an infrastructural project. The Ministry of Infrastructure is well advised to stay within the normal construction of the clauses of their contracts and allow the Defects Notification Period to be on the issuance of the Taking Over Certificate. I will conclude that there is some merit in the concerns expressed by Hon. Guy Joseph.
For now, I will accept the legal position of the Speaker that Article 1558 can also be extended to an infrastructure project, it would be an interesting legal argument however. It would be of value to the industry to hear the views of lawyers in Saint Lucia. I also support the Speaker’s overarching position that imputing motives of persons that cannot defend themselves within the House should not be tolerated. One would hope that this will be a consistent position from this and every future Speaker. Just remember that one day it may be you.