Unforeseen ground conditions

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Legal and contractual solutions · Loss and expense

Which party bears the time and cost risk of unforeseen ground conditions?

Express allocation, foreseeability, site information and notice

The executed contract allocates the risk. Some forms place unforeseen physical-condition risk on the employer subject to defined thresholds and procedure; others place it on the contractor or provide no express relief.

Quick answer

Read the express ground-risk allocation before asking whether the condition was unforeseen

Identify the physical condition, the contractual definition, the foreseeability standard, information deemed available, inspection obligations and notice procedure. A lump-sum or remeasurement label does not itself decide entitlement. Where the contractor assumed the risk, unexpected rock or weak ground may remain its cost. Where the employer bears defined unforeseen-condition risk, the contractor must prove that an experienced contractor could not reasonably have allowed for the condition and that compliant notice, mitigation, time and cost evidence exist.

IssuePosition
Express contractor riskCondition remains contractor responsibility subject to exceptions
Express employer riskApply definition, foreseeability and notice tests
Contract silentConstruction and governing law determine allocation
Site informationCheck accuracy, reliance and deemed-knowledge clauses
ForeseeabilityAssess what an experienced contractor should have allowed for

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