4. “WHICH…COULD NOT REASONABLY HAVE BEEN FORESEEN BY AN EXPERIENCED CONTRACTOR”. The burden is clearly on the contractor to show that the “conditions or obstructions…could not reasonably have been foreseen”, but these words are ambiguous. Is a claim excluded only if an experienced contractor could have foreseen that the conditions or obstruction must occur, or is it sufficient that he could have foreseen that there was a possibility, however remote, that the conditions might occur?

The mere fact that some risk of meeting the conditions was foreseeable can hardly be enough, since an experienced contractor will know that anything can happen, particularly in work underground. It is suggested that a claim is barred only if an experienced contractor could have foreseen a substantial risk.

This view is supported to some extent by the conclusions reached by the judges in developing the law of negligence (p. 93) by which there is liability for a negligent act if it could reasonably have been foreseen that the act would cause damage: 

The plaintiff was struck by a cricket ball which a batsman had hit out of the ground. Although the owner of the ground knew that this had happened before, the House of Lords held that the likelihood of injury to a person situated as was the plaintiff was so slight that the owner was not negligent in allowing cricket to be played without taking more precautions. The distance from the pitch to the edge of the ground, which sloped upwards to a 7 ft. fence, was about 78 yards. f′

It follows from this view that the mere fact that the odds are against meeting particular conditions or obstructions is not enough to exonerate the contractor, if there is a substantial risk. However, because of the different context and since the problem is basically one of fact, the countless reported cases on the law of negligence are unlikely to be of very much help in deciding what an experienced contractor could have foreseen. g′

A frequent argument of contractors is that if the engineer’s design shows that he did not envisage particular physical conditions, then there is no reason why an experienced contractor should have foreseen them. In practice this argument may have force, but if it is shown that the engineer did not in fact do his job properly, the contractor has no right to use the engineer’s failure to perform his duty to his client as an excuse for his own failure to fulfil his independent duties under cl. 11. In many such cases the design will have to be varied so that the contractor will be able to claim under cl. 51 instead of under this clause.

Refer also to N. 23 on ground conditions that are better than were foreseeable.

5. “WILL BE INCURRED”; “ANTICIPATED” DELAY. See the next note.

6. PROCEDURE AND RECOVERY OF COST INCURRED PRIOR TO NOTICE. Contractors will breathe a sigh of relief that the unrealistic notice requirements of the 4th edition have been abandoned. The new scheme of this clause may be summarised as follows:

(a) The contractor encounters physical conditions or artificial obstructions.

(b) He considers that these conditions, etc., could not reasonably have been foreseen by an experienced contractor.

(c) The contractor must give notice under cl. 52 (4) “as soon as reasonably possible after the happening of the events giving rise to the claim” specifying the physical conditions or artificial obstructions encountered. There may be a time lag between (a), (b) and (c)—between the contractor encountering the conditions, realising that the cause of his problems falls within this clause and giving notice accordingly. It seems (despite the words quoted in N. 5 and 7 to this clause) that the contractor may nevertheless recover compensation for all the conditions or obstructions encountered (N. 17). In particular, in judging when notice was reasonably possible it appears relevant that the contractor could not have realised for some time that his difficulties were due to unforeseen conditions or obstructions, where that was the case.

(d) The contractor with the notice “if practicable or as soon as possible thereafter (is to) give details of the anticipated effects (of the conditions or obstructions) the measures he is taking or is proposing to take and the extent of the anticipated delay in or interference with the execution of the Works” (see N. 7).

(e) The engineer may require the contractor to provide an estimate of the cost of the measures “he is taking or is proposing to take”, and may take various other steps—see N. 8–13.

(f) Cl. 52 (4) requires the contractor to furnish various other accounts.