Indemnity for Damage to Property, Loss, Depreciation
andDisturbance caused by Execution or Performance of the Works
Fact Sheet 11
Mineral Workings Act (MWA) and the Council’s Indemnity
Under the Mineral Workings Act 1985,
there are statutory provisions as to compensation for damage, loss,
depreciation and disturbance caused in execution of the Works, and
the Council will pay compensation in accordance with the statutory
provisions of MWA and replace items if necessary. Once a condition
survey has been carried out, the Council will indemnify any person
with rights under section 8 of the MWA for personal injury and/or
for the cost of any repairs or if necessary replacement, in the
unlikely event that any damage is caused (whether or not as a
result of negligence) to her/his land or house, boundary walls,
fences, and any other buildings, including the contents in such
buildings, resulting from the stabilisation works. Not withstanding
the limitation of rights provided for by Section 8 of the MWA,
rights to the indemnity provided by the Council will be as
above.
Any person with rights under the MWA will
also be entitled to compensation if it can be shown that, as a
result of the carrying out of the works, the value of her or his
property is less than it would have been if the works had not been
carried out.
Time Limits for the Council’s MWA Liability
The MWA Notice provides for access for
any monitoring and maintenance works which the Council may
undertake. Execution of any works by the Council under the MWA
causing damage in this period are indemnifi ed as described.
Claims must be made within 6 years of the
event giving rise to a claim. Should a claim not be settled by
agreement following survey and loss adjustment, the claimant will
have to begin court action within 6 years from when the damage
occurred in order to protect his or her position.
Damage Caused by Execution of the Works
The property owner must notify the
Council Project Team promptly when incidents believed to be caused
by execution of the Works are found. Owners should refer to
Factsheet 2 (How to Make a Claim) for the process for
reporting incidents and handling claims.
The affected owner may wish to seek
advice from their home insurers, if insured.
It is advisable that you keep your
insurance company fully informed of the issue.
Latent Defects
Despite rigorous design, supervision and
inspection arrangements there remains the possibility of
undiscovered defects (in design, materials, workmanship or
products) which do not cause damage immediately. Such defects
related to ‘Performance of the Works’ are referred to as ‘Latent
Defects’, and in such situations the MWA and the indemnity do not
apply.
The owner must contact the Council
immediately. However the owner is not in a contractual relationship
with those designing or implementing the stabilisation scheme. The
same is true as between the owner and the Council, except with
regard to the matters of enforceable contractual obligation as
undertaken by the Council as detailed in the “Legal Issues” paper.
Accordingly, in other instances breach of duty “in tort” will need
to be established if damages are to be obtained.
The affected owner may wish to seek
advice from their home insurers, if insured, and should ensure any
claim is pursued promptly. Any owner who is not insured would need
to seek legal advice.
Time Limits on Liability for Performance of the Works
The later of: 6 years from ‘breach of
duty’, or 3 years from ‘knowledge of material facts’ arising within
12 years of breach of duty.
