5. EMPLOYER LIABLE “TO THE EXTENT THAT…DAMAGE (TO THE WORKS) …ARISES FROM ANY OF THE EXCEPTED RISKS”. The burden of proof is on the contractor to prove on the balance of probabilities that damage arose wholly or partly from an excepted risk. In a case where damage is caused partly by an excepted risk and partly by an event for which the contractor is responsible, it appears on general principles that if there was one “dominant or effective” cause of the occurrence, that alone will be considered in deciding whether the employer or contractor bears the loss.
Insured in the course of a fit fell on a railway line and was run over. His representatives recovered payment under an insurance policy which covered accidental injuries provided they were “the direct and sole cause of death”. s
Under a contract with a factory owner contractors installed electrically operated equipment in his factory.
The equipment was completely unsuitable for its purpose and a potential fire hazard. When the equipment had been installed an employee of the contractors switched it on, although it had not yet been tested, and left it unattended throughout the night. As a result a fire broke out and damaged the factory.
Held: That of the two causes of the damage, the dangerous nature of the equipment and the conduct of the employee, the former was the dominant or effective cause.
Therefore insurers were not liable under a policy which excluded cover for any damage caused by the nature or condition of any goods supplied by the contractors. t
If there are two effective causes one only of which is an excepted risk, for example if collapse of work due to a combination of defective design and workmanship would not have happened from either cause alone, it seems that an apportionment of the cost of making good must be made under this clause, although it may be very difficult to find a basis for determining “the extent that…such damage” arose from each cause:
“But for my part I do not consider that the Court should strain to find a dominant cause if ... there are two causes both of which can properly be described as effective causes of the loss. Counsel for the plaintiffs recognised that if there are two causes which are approximately equal in effectiveness, then it is impossible to call one rather than the other the dominant cause.” u
The mere fact that one cause is nearer to the accident in time than the other, does not make it the effective cause.
For the contractor’s right to expenses, abandonment of the contract, etc., for suspension due to an excepted risk see cl. 40.
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