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Divine intervention


I read with interest your article on the problems being caused to our industry by the foot and mouth epidemic (NCE 29 March).

Obvious examples of so called acts of God which attract Government contingency plans around the world include flooding, earthquakes and volcanic eruptions. Therefore, foot and mouth may or may not be considered to be another such act, depending, I suspect, upon your concern about modern farming methods.

In any event whether or not any particular event is an act of god is irrelevant in the context of work carried out under the ICE Conditions of Contract.

The question to consider is who carries the risk of the results of such an epidemic, in respect of both time and money?

It is reasonably clear that the time risk, which is relevant to the imposition of liquidated damages, is carried by the employer. The epidemic clearly falls into the category of other special circumstances of any kind whatsoever, which entitle the contractor to extensions of time under Clause 44. A more difficult question to answer will be who is at risk for the inevitable costs that will be incurred.

It appears that the existence of the epidemic will not entitle either party to claim additional costs incurred, although there may be an argument that it is in itself a physical condition within the terms of Clause 12.

However, the effect of the way that the epidemic is being dealt with may also entitle claims for additional payments.

On contracts affected by foot and mouth it is clear that the wise engineer will adopt a proactive role and not leave it to the contractor to sort out, as this will inevitable lead to claims and conflict.

Peter Cousins

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