International Construction Law Review
WHAT LIES BENEATH
JULIAN BAILEY1
Solicitor, CMS Cameron McKenna LLP, London
I. INTRODUCTION
Risk, how it is managed, and how it is allocated as between contracting parties, is perhaps the most important subject-matter for consideration by anyone embarking upon a building or engineering project. One particular source of risk to which building and engineering projects are prone is the risk that site conditions will turn out to be less favourable than anticipated at the time of entering into the particular contract. Over and over, projects have been affected by unexpectedly bad ground conditions, and by the physical state of existing structures on which work is to be performed being worse than was foreseen. Running silt or sand, hard rock, inherent ground water2
are typical culprits in this project quagmire. There are many others.3
The effects of unexpectedly adverse site conditions may be manifold. Works may have been planned on certain assumptions: that excavation could be effected using certain plant, that ground would be suitable for certain foundations, or that the ground would permit the use of particular work methods. The discovery of bad ground may necessitate a change to those work methods, possibly a complete revision of those work methods or the design of the works themselves. In extreme cases the works may need to be abandoned altogether. Even if the required work is
capable of being performed in the manner originally contemplated, it may take longer than planned, or cost more, or both, all because of unexpectedly bad site conditions.
The picture may be further complicated where a contractor has embarked upon its works based on certain assumptions, or certain site information, which were communicated to the contractor by the owner,4
or the owner’s consultant. What if these assumptions or site information turn
1 This article is based upon an essay that was awarded first prize in the Society of Construction Law Hudson Prize 2006.
2 As opposed to water which is present on site due to precipitation: cf. Dennis Friedman (Earthmovers) Ltd
v. Rodney CC
[1988] 1 NZLR 184. However, should ground behave in an unexpected manner when subjected to precipitation, e.g., rain water does not drain as freely as anticipated, this characteristic of the ground (as opposed to the rain itself) may be regarded as a latent condition.
3 Although unfavourable site
conditions generally may cause difficulties to a project, the most common type of unfavourable site conditions, which affect the smooth-running of a project, are subsurface ground conditions. This essay focuses primarily upon the paradigm of bad ground conditions being encountered, although the principles under discussion are of general application.
4 There is no universally accepted term for a person who procures construction work. In this essay “owner”, “developer” and “proprietor” are generally used, and are to be treated as synonymous with other terms such as “employer” and “principal”.
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What Lies Beneath
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