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In my vkw the Forties to the contract at the time the contract was entered into contemplated or should have contemplated that if the defendant did not have available the necessary excavation permit until seven weeks after tlw plaintiff had marl of a that the plaintiff would Fedelayed in carrying out lb woo., and that such delay would throw the subcontractors off sclwduk which would entail further delays and that such deLn,s would cause tlw plaintiff damages of the very type or nature it suffered. 9.17.5 Contractors and subcontractors who find themselves dela yed by bad weather may be entitled to recover the additional costs as well as time if they are able to show that had it not been for an earlier delay caused by the

architect or engineer they would not have been affected by the weather. SUMMARY II the contractor is to succeed in claiming loss and expense due to inclement weather on the basis that, but for an earlier delay which was the responsibility of the employer. engineer or a Millet t the bad weather delay would not have arisen, he must be able to link the earlier delay with the effect on later work caused by hid weather. I/ there is no direct link or the link in some way is broken then the claim will fail but in appropriate cases the claim for loss and expense as well as time will succeed.

938 Who is responsible for the additional costs and delay resulting front unforeseen bad ground conditions - the employer or contractor/subcontractor?
9.18.1 If disputes are to be avoided the contract should make it clear who is responsible for the cost in terms of time and money resulting from encountering unforeseen bad ground. In general terms if the contract is silent on the matter and there is no provision for /measurement of work on completion the contractor will be deemed to have taken the risk. 9.18.2 The current trend is for employers to seek to pass the risk of this type of matter to the contractor who in turn tries to offload it onto a subcontractor. Usually this is achieved by way of specially drafted conditions of contract However the Majority of the existing standard forms of engineering contract place the risk onto the employer. Clause 12 of the ICE 6th and 7th Editions entitles the contractor to claim for any additional time and cost which results from:
'physical condition, (other than weather conditions or conditions due to weather conditions) or artificial obstructions which conditions or obstructions could not in his opinion have been foreseen by an experienced contractor:

Condition 7(3) of GC/ Works// 1998 Edition includes a similar provision. 9.18.3 The Engineering and Construction Contract (NEC) under clause MI provides for encountering physical conditions to be a compensation event To qualify these have to be physical conditions which

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150 Contractual Ptagents are within the Site.

are not weather conditions and

which anexperienced contractor would have judged at the contract date to have such a small chance of occurring that it woad have ken unreasonabk for him to have allowed them

9.18.4 The FIDIC 1999 Red Book under clause 4.12 entitles the contractor to recover any additional costs incurred as a result of 'physical conditions which he considers to have been unforeseeable'. Physical conditions are defined by the conditions of contract as: 'natural physical condition, and man made and other physical obstructions and rollout*, which tit contractor encounters on the site when executing the works includim; hydrological conditions but excludirkg climatic conditiDtb: The FIDIC 1999 Silver Book for Turnkey propels takes a different line and under clause 4.12 makes it clear that the contractor is to take the risk and include in his price for 'any unforeseen difficulties or costs, except as otherwise stated in the contract' 9.18.5 The JCT Forms are silent on the matter - probably because most of the work will be above ground. The risk is therefore taken by the contractor. In the case of Co-Orwatity ittSioatier Soda y v. Henry Boot (2002), see section 2.1.9, the employer provided a subsoil survey at tender stage which proved to be inaccurate and resulted in the contractor incurring additional costs. The contract incorporated the JCT conditions and the contract documents which stated that: 'the contractor is deemed to have inspected and examined the site and its sun rounding,' and to have .satislied himself as to the nature id the site including the ground and subsoil before submitting hi. tenter.' It was held that the contractor, under this clause, took the risk of encountering bad ground and lost the case. 9.18.6 With regard to adverse conditions which were foreseeable, Max Abrahamson in his book Engineering Low and the ICE Contracts cites the case of CI Point' and Co Ltd v. Hellion' Corporation (1968) where: 'contractors knew before tender that a sewer at least 100 years old kid to by crossed in the coigne of laying a new sewer. What Was described on thtitan as "tile apprucitnate line of the.., sewer" wasshownona map supplied to wintemrs. The witnesses for both parties accepted that the word "approximate" :want that the contractor would realise that the line of 'twig./ sew er might Fe In feet to 15 feet one side or the other of thy line shown. The old 'ewer fractured when the contractors disturbed the surrounding soil within this area. I told: that 0wcondition could have been "reasittubly torewen".!otlut even it they kid served the neassary notice they would not have teen entitled to extra payment under this cLuese (clause 121 for rerewing the old ?ewer. backhlling the excavation. baddleadlINC, OW? 9.18.7 The case of Halt Oil Terminals Trustee Ltd v. Harbour & General %lob& (Stetiti)Ltd (1991) appears to have extended a contractors facility for levying

claims under clause 12. A contract was entered into for the construction of three mooring dolphins and the reconstruction of a damaged bathing

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dolphin at the Immingham Oil Terminal, Humberside. For the purposes of carrying out the work the contractor used a jack-up barge equipped with a 300 tonne fixed crane. The crane was lifting and slowing a large concrete soffit in order to place it on piles which had already been prepared when the barge lifted. became unstable and collapsed. Considerable loss and damage resulted. The contractor claimed that the collapse of the barge was due to encountering adverse physical conditions which could not reasonably have been foreseen by an experienced contractor and would therefore give an entitlement to levy a claim. It was argued on behalf of the employers that no legitimate grounds for a claim existed. They contended that clause 812) applied, under which the contractor was required to take lull responsibility for the adequacy, stability and safety of all site operation and methods of constructkm. The problems arose, the employers said, due to a failure on the part of the contractor to comply with this requirement. 9.18.8 The arbitrator, in deckling whose argument was correct. had to establish the reason for the collapse of the barge. He came to the conclusion that the collapse was caused by the barge moving from an initial small settlement of 5cm to a substantially large settlement of perhaps 20cm or 30 cm, at which point the stability of the barge was such that further and progressive collapse occurred. He decided that the settlement was caused by adverse physical conditions which could not have been foreseen by anexperienced contractor, and hence gave IiS to a claim under clause 12. On appeal by the employer, the court held that the arbitrator's award was correct. SU?vIMARY Which party to a contract is responsible for unforeseen bad ground should he made clear by the express terms of the contract. The ICE 6th and 7th Editions GC/Works/1 1998, the Engineering and Construction Contract (XIEC) and the FIDIC Red Book are ill examples of standard forms of contract which place the risk of unforeseen bad ground conditions onto the employer. If the contract is silent on the matter and there is no provision for remeasurement the contractor will normally be deemed to have taken the risk. This is particularly relevant in lump sum design and construct forms of procurement. Where employers do not wish to be responsible for information included in subsoil surveys sent with tender enquiry documents, they should make it absolutely clear. Some sort of health warning on the front of the document to the effect that the employer has no liability for the information and the contractor uses it at his peril would seem to fit the bill. The contractor can then carry out the necessary investigations himself, if time permits; if not, he should add a sum to the price to reflect the risk.

Who is responsible for the additional costs and delay resulting from unforeseen bad ground conditions. the Employer or contractor or subcontractor?
ICE Clause 12 places the responsibility for unforeseen physical conditions and artificial obstructions upon the Employer (client risk) GC (Works) requires immediate notice to Project Manager (client risk)

JCT DB 2005 Silent (Contractor Risk) except if information given JCT SEC 2005 Drawings show substructure (client risk) JCT SBQ 2005 BOO Measures pumping, rock etc (client Risk)

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