Paragraph 39 Compensation
Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any such works referred to in any of these provisions or in consequence of the construction, use, maintenance or failure of any of the authorised works by or on behalf of the undertaker or in consequence of any act or default by the undertaker (or any person authorised by the undertaker) in the course of carrying out the works, any damage is caused to any apparatus or alternative apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works) or property of the utility undertaker, or there is any interruption in any service provided, or in the supply of any goods, by the utility undertaker, the undertaker must—
bear and pay on demand the cost reasonably incurred by the utility undertaker in making good such damage or restoring the supply;
make reasonable compensation to the utility undertaker for any other expenses, loss, damages, penalty or costs incurred by the utility undertaker; and
compensate the utility undertaker against all losses, claims, demands, proceedings, costs, damages, penalty and expenses which may be made or taken against or recovered from or incurred by, the utility undertaker,
by reason or in consequence of any such damage or interruption or the utility undertaker becoming liable to any third party.
The fact that any act or thing may have been done by the utility undertaker on behalf of the undertaker or in accordance with a plan approved by the utility undertaker or in accordance with any requirement of the utility undertaker or under its supervision does not, subject to sub-paragraph (3), excuse the undertaker from liability under the provisions of sub-paragraph (1).
Nothing in sub-paragraph (1) imposes any liability on the undertaker with respect to any damage or interruption to the extent it is attributable to the act, neglect or default of the utility undertaker, its officers, servants, contractors or agents.
The utility undertaker must give the undertaker reasonable notice of any such claim or demand and no settlement or compromise is to be made, unless payment is required in connection with a statutory compensation scheme, without first consulting the undertaker and considering their representation.
The utility undertaker must use its reasonable endeavours to mitigate and minimise any costs, expenses, loss, demands and penalties to which the compensation under sub-paragraph (1) applies. If requested to do so by the undertaker, the utility undertaker shall provide an explanation of how the claim has been minimised.