Posted on: 27-04-2020

Construction liability

Written by:

Hein Kernkamp

Construction liability

Building is not without risk. Where construction takes place, damage is regularly caused to other buildings. And that is not surprising. Demolition work, excavation work, pile driving and pumping out groundwater are activities that can cause damage to neighboring buildings, such as cracks and subsidence. The construction of the North / South line in Amsterdam and the accompanying subsidence on the Vijzelgracht is a striking example of this, but there are of course many more. The contractor who carries out the work must ensure that no damage occurs, but the reality is that this does not always work. There is then damage and the party that suffers damage will want to recover its damage from the liable party. Who is that?

construction liability

The customer

Damaging someone else's objects during construction is a tort. The main rule is that the person who commits the tort is liable. In most cases, the customer has only given instructions to the contractor and has therefore not yet acted unlawfully. In that case, the customer is not liable for any damage suffered by a third party. This could be different if the customer made a mistake himself, for example due to the wrong choice of the contractor or by prescribing a specific working method that caused damage. A professional customer has more know-how and is more actively involved in the construction process. The professional customer is therefore more likely to be held liable than the private customer.

The auxiliaries

Many people walk around at work who are not employed by the main contractor, but who are hired by the main contractor. These qualify as auxiliary persons. Examples of auxiliary persons are the subcontractor who has taken over part of the work from the main contractor or a self-employed person without personnel (ZZP-er) who carries out installation work. If it is known that such an auxiliary person has made a mistake, he can be addressed directly.

The contractor

Usually the contractor is the liable person in case of damage to buildings during the construction work. He caused the damage himself or persons for whom he is liable caused the damage. The contractor who makes a mistake that causes damage to existing buildings acts unlawfully and is then liable to pay damages. In most cases, therefore, it is the contractor who is liable to neighbors or other third parties. Usually, the contractor's construction liability is insured through Construction Allrisk insurance (CAR). The CAR insurance covers damage to existing buildings, so the insurer will usually be notified and subsequently settle the damage further.

Liability for auxiliary persons: functional relationship

Besides that the contractor is liable for his own wrongful conduct and that of his own personnel, the contractor is also liable for building damage as a result of mistakes by the auxiliary persons. Article 6: 171 DCC stipulates that a client is liable for damage caused by a non-subordinate who carries out activities to carry out the business of his client. There must therefore be a functional link between the activities of the non-subsidiary and the business activities of the client. The contractor and the subcontractor and the freelancer will have that functional connection and the contractor can therefore be held liable.

Submit your case to a lawyer

Our lawyers regularly advise and litigate on construction liability for building damage. Call or email us and submit your questions without obligation. We like to help you. It is not without reason that our motto is: "Your problem, our concern."

More information?

Hein Kernkamp will gladly help you further.

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