UNFORESEEN ADVERSE GROUND CONDITIONS
“A bad workman blames his tools’ is a common proverb applied when someone blames the quality of their equipment when they perform a task poorly. However, in the construction setting, blame is not exclusively directed by the workman to his tools, but also the physical conditions encountered in carrying out the works.
This article considers the circumstances in which contractors encounter unforeseen adverse physical conditions and who is responsible for their consequences.
Construction contracts typically identify the scope of works, the duration in which they are to be performed and the price the contractor is to be paid for carrying them out. In the absence of any express provisions to the contrary, contractors are required by most legal systems to carry out that which they have contracted to do and bear all associated burdens of doing so.
For example, under English law, an employer does not impliedly warrant that the works undertaken by the contractor are possible (legally or physically). The employer is entitled to rely upon the contractual agreement and the expertise of the contractor to carry out the works. Should the contractor encounter more onerous conditions than allowed for in its programme and tender, the time and cost consequences of dealing with the more onerous conditions will usually be borne by the contractor.
Oct-Dec 2020 issue
King & Spalding LLP