INGENIEUR
(Rev 1/2010), etc or are purchased by
the contractor on its own volition;
(2000 Edn); Clause 21.1 IEM Forms CE.2011 and
ME.2012, etc. Particular cognisance should be
taken of the following matters:
>> in the former scenario, though the
insurance is procured by the contractor,
however the necessary premiums are
essentially paid for by the employer.49
Hence, these are to the employer’s
account. Even in the latter case, the
employer normally ends up paying
as most contractors would factor the
premiums into the contract costs; and
●●
●●
>> it is also common for the contract
stipulations on insurance as adverted
to above to state that the insurance
obligations are ‘without prejudice’ to
the contractor’s indemnities given
under the contract.50 The legal and
practical effect of this stipulation is
that should the contractor default
(i.e., fail to procure the necessary
insurance cover or fail to provide for
adequate cover or fail to maintain the
necessary cover) or any insurance
procured is rendered ineffective or
fails in total, the contractor’s liabilities
for indemnification continue unabated
in full. This means that the contractor
will have to make the necessary
compensation or indemnification on its
own.
(2) Category II: Injury or Damage to Property
This category of indemnification is also prevalent
in all the local standard forms of contract. Typical
examples include Clause 18.2 PAM Contract
2006 (With Quantities), PAM Contract 2006
(Without Quantities); Clause 14.1 JKR Forms 203
& 203A (Rev 1/2010); Clause 38.2 PWD Form
DB (Rev 1/2010); Clause 24.2 JKR Sarawak
Form of Contract (2006); Clause 35.2 CIDB Form
49
50
51
52
53
54
55
Usually as an item in the Preliminaries.
Under any other express provision.
Clause 18.2.
Clause 14.1/Clause 38.2.
Clause 24.2.
Clause 35.2.
Clause 21.1(1).
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JUNE 2013
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again a seemingly wide and onerous
obligation that is distinct from the other
categories of Indemnity. However, its nature
and scope is somewhat limited by the ambit
of the particular provision as it deals with
injury or damage to property only;
the generic label of ‘injury or damage
to property’ is a mere umbrella phrase
that must be broken down and dealt
with separately to tie it in with the actual
wordings adopted in the different conditions
of contract. Hence, ‘injury or damage’ and
‘property’ will be addressed separately;
the first component ‘injury or damage’ is
variously described in the local forms of
conditions of contract; typical examples
are:
>> in the PAM Contracts 2006 (With
Quantities), PAM Contracts 2006
(Without Quantities)51 the term used
is ‘loss and/or damage for any kind
whatsoever’;
>> in the JKR/PWD Forms (Rev 1/2010)52
the description is ‘loss, damage or
injury of whatsoever nature or kind’;
>> in the JKR Sarawak Form (2006)53 the
term used is only ‘damage whatsoever’;
>> the CIDB Forms 54 employ the term
‘injury or damage of any kind’;
>> the IEM Forms55 use the term ‘loss or
damage’.