I) Public Liability Insurance
Typical public liability insurance will provide indemnity in respect of liability at law for damages arising from accidental injury to third parties (not employees) or accidental damage to third-party property arising in connection with the project. It may also cover liability for damages arising out of any nuisance or trespass committed by the insured and any rights (such as a right of way) with which the insured may accidentally interfere in the course of the development. Other elements of cover normally provided include defence of claims costs, the use of plant on the site and legal defence costs in respect of prosecutions brought under the Health and Safety legislation.
Many insurance providers now exclude claims arising from sources they regard as particularly hazardous, such as terrorism, asbestos, gradual pollution, mould, e-commerce transactions and, potentially, financial loss where there has been no ‘injury or damage’ as defined in the policy. Insurers may restrict their liability for particular risks by imposing inner limits much smaller than the overall policy limit.
Public liability insurance coverage may be arranged on an annual basis with a specific limit being the maximum amount payable in the event of any one claim or series of claims arising from one occurrence. It is normal for this limit to apply in respect of any one claim but some limits do apply to all claims in the period of insurance. There may be a limit on any one claim and then a separate aggregate limit. Sometimes there are elements of cover that insurers may be particularly concerned about, e.g. sudden and accidental pollution may be subject to lower limits of liability and/or separate aggregates.
Whatever type is issued, it is the insured party or parties that decide on the level of cover to be purchased dependent upon the risk exposure arising from the work being undertaken. When deciding upon the limits to be purchased it is best not to rely on any figure requested within a contract document, as this is normally the minimum amount required. The policy will normally be subject to an excess that will be deducted from the total amount claimed and may apply only in respect of claims for property damage or in respect of all claims.
Every party on site with a potential liability to the public will require an insurance policy. Additional responsibilities for each party will also be set out in the contract. It is traditional and still common for the Contractor to arrange a cover on behalf of the Employer. However, it has to be asked if this is in the best interests of everyone, whether the Employer who may find he has only nominal cover or a claimant who may find they are passed from one insurer to another if there are different policies in different names. One option is to effect a project policy arranged by the Employer.
The parties protected by the policy will vary according to the Employer’s requirements and the nature of the contract forms being adopted. The indemnity can apply to the Employer only or together with the Contractor, his subcontractors and tradesmen. In addition there may be freeholders, superior landlords, financiers plus professional consultants and suppliers (on site exposures only) to be added to the list of insured. The policy should set out the names of all insured and specify in which policy covers they have an insurable interest.
Public liability insurance is not a cheap insurance and if one party does arrange cover in two or more names the cost of this and the potential savings to the other names should to be reflected in tender prices.
It is important for the Employer to decide responsibilities for placing public liability insurance before contracts are signed, rather than just follow the provisions of the basic contract conditions. Whoever is making the decision as to who must arrange the cover must consider all those who may need to be protected.