Does refusal of access to remedy defects release the contractor from liability?
Refusal of access does not ordinarily erase a breach arising from defective work. It may, however, affect whether the employer can recover the full cost of using others where the contractor could and would have remedied the defect more cheaply.
Liability may remain, but recoverable remedial cost can be reduced where the contractor was denied the agreed opportunity to return
First establish whether the work failed to meet the contract. Then identify whether the correction clause gave the contractor a right or opportunity to remedy, whether compliant notice and access were offered, and whether refusal or urgency justified replacement work. If the employer elects to use others without allowing the contractual opportunity, the contractor may remain liable but the damages assessment may be confined to the reasonable cost that would have been incurred had the contractor remedied its own work, subject to the clause and facts.
| Issue | Position |
|---|---|
| Defective work | Underlying breach may remain |
| Correction clause | May give an opportunity or right to return |
| Employer refuses access | Does not automatically release liability |
| Replacement contractor cost | Not automatically recoverable in full |
| Damages | Subject to contract, causation and mitigation |
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