The waiver in the contract with the firm that built Mater Dei Hospital does not cover liability and bad workmanship, according to Paul Camilleri, former president of the Foundation for Medical Services.

“FMS was advised by its lawyers at the time of negotiations of the project closure agreement that its concerns on retaining the 15-year contractor liability and the liability for hidden and latent defects are protected by the wording in clause 5.1 of the project closure agreement,” Mr Camilleri said.

Mr Camilleri signed the agreement with contractors Skanska in February 2009 on behalf of FMS, the public entity that had been responsible for overseeing the construction and finishing of the project under the remit of then health minister John Dalli. Clause 5.1 of the agreement states: “The works... are deemed to be completed and accepted in accordance with the amended main agreement, saving any rights FMS and SMJV [Skanska Malta JV] may have under Maltese law.”

FMS was advised that clause 5.1 allayed its concerns on 15-year contractor liability and liability for hidden and latent defects

In any case, Mr Camilleri added, articles 1725 and 1726 of the Civil Code provided that a compromise should not extend beyond the subject matter of a contract and should only settle the controversies the parties had in view. He said that any deficiency in the quality and grade of concrete used at Mater Dei was never brought to the attention of the board before the agreement for the completion of the project was signed in 2009.

“If any deficiency in the quality and grade of concrete used had been detected and communicated to the FMS board, it would have been raised in its claims against Skanska, as FMS did and addressed accordingly with regard to any other claim that resulted and was brought to its attention,” he said.

The agreement is the subject of controversy following the discovery of weak concrete and the disclosure that the contract included a waiver over future liabilities.

The government last week said it was seeking legal advice on the waiver and its claim to damages from Skanska over the low-quality concrete, which it said would cost some €30 million to repair.

“The price of incompetence and the strong smell of corruption should be paid by those who committed such acts,” the government said of the waiver.

Mr Dalli, on his part, has said the controversial clause was included in the closure agreement without his knowledge and that the agreement was kept from him for six weeks after it was signed.

Former prime minister Lawrence Gonzi said the closure agreement and waiver clause never appeared before Cabinet for approval in 2009.