| Date | 18 June 2008 |
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| Judgment | Weather events under JCT and NEC contracts |
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| The Issue | A brief comparison of the extension of time and loss and expense provisions relating to weather under the JCT and NEC contracts. |
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| Implication | Under JCT the weather must be exceptional and it must adversely affect the works. Under NEC, a contractor must first establish that there was an effect due to weather and then determine if it was sufficiently rare and was of a type that amounts to a compensation event. |
print| Under JCT SBC 05, a contractor is entitled to an extension of time (but not to loss and expense) for ‘exceptionally adverse weather conditions’. There is no clear definition of what this means or how the effect is to be quantified or assessed. Whilst any weather conditions may cause a delay, only exceptionally adverse weather will give rise to any entitlement. Whether the weather is sufficiently adverse to be a relevant event, and the extent of the delay it causes, is largely a matter for the discretion of the architect. As will be seen, whilst the NEC approach to dealing with weather attempts to provide greater certainty it still leaves much to be desired. NEC provides an entitlement to time and money for the effects of weather as a compensation event. The NEC approach requires the identification of a weather station for the recording of weather measurements. This could be any weather station, but it will obviously be best to ensure that it is close to the site. The contract also identifies four standard measurements that are required to be recorded for each calendar month: • the cumulative rainfall (mm) • the number of days with rainfall more than 5mm • the number of days with minimum air temperature less than 0°C • the number of days with snow lying at a specified time These are defined as ‘weather measurements’, and these are the only weather conditions that will trigger a compensation event. There is space provided for additional weather measurements to be included so if, for example, wind speed is likely to be a factor affecting crane utilisation then it may be appropriate to make provision for the number of days with a wind speed above a specified level. The term ‘weather data’ is defined as the historical records of each of the weather measurements for each calendar month recorded at a specified location and available from a specified body. Ideally, the location where the weather data is recorded should be close to the location at which the weather measurements are made. If no historical data is available then it is possible to agree assumed values for the worst case over a 10 year period. Clause 60.1(13) then provides a mechanism for the identification of a compensation event by comparing any of the weather measurements with the corresponding weather data for that measurement in any calendar month. A compensation event will arise if any of the weather measurements is shown to occur, on average, less often then once in 10 years. The use of the word average here suggests that the weather data could embrace records that extend back beyond the previous 10 years. For example, if in a month there is a total of 90mm of rain and the most that might be expected for that month in a 10 year period is 89mm there will be a compensation event. The question then is so what? The contractor has still to establish the consequences of the compensation event and the project manager must assess the effect of the compensation event upon defined cost and assess (by reference to the accepted programme) the effect upon the planned completion date. In NEC3 it was made clear that only the difference between the exceptional weather measurement and the average one in ten year worst case may be taken into account in assessing the compensation event. In the example above, the contractor would be entitled to compensation for the effect of 1mm of rain, provided he could show there was an effect. Whilst the numbers of days of rainfall in excess of 5mm might seem more straightforward, the effect still has to be assessed and there is the unanswered question of which of the additional days are to be considered as part of the assessment and what effect they really had. Thus, whilst taking away the need to speculate as to what is meant by “exceptionally adverse”, users of the NEC face the same difficulty as ever in determining the consequences of any adverse weather.
CJ-0824
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© Brewer Consulting |
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