Weather under ICE and ECC    © Daniel Atkinson 1999

Construction on site is susceptible to delays and loss of productivity due to weather conditions. The ICE 6^th Edition adopts a traditional allocation of risk in two clauses 12 and 44. The contractor takes the risk of all costs' consequences, whereas the Employer takes the risk only of delay and then only when due to exceptional adverse weather conditions. The Engineering Construction Contract (ECC) has a significantly different allocation of risk.

Clause 12 of the ICE 6^th Edition transfers to the Employer the risk for physical conditions which could not reasonably be foreseen by an experienced contractor, but expressly excludes weather conditions or conditions due to weather conditions. So for instance rainfall at the site is excluded as are floods due to rainfall away from the site. The contractor therefore carries all the cost risk for all weather conditions.

ICE Clause 44 entitles the contractor to an extension of time due to exceptional adverse weather conditions. There is no obvious objective test in the ICE form. On the other hand the clause applies to all and any weather condition such as rainfall, temperature, wind etc. No assessment period is defined. The Engineer administering the ICE will therefore usually examine the weather conditions on the site over the full period for each distinct site operation (such as earthworks, concreting, brickwork etc.) before deciding whether an extension of time is due. The Engineer may also consider exceptional beneficial weather in assessing whether, overall, there have been exceptional adverse weather conditions. This delays the award of any extension of time which may be due.

The ECC 2^nd Edition follows the ICE in that it deals with weather conditions in two clauses, but does so in a way quite different to the ICE.

The first ECC clause is the event described in Clause 60.1(12). It is defined as any physical condition which an experienced contractor would judge has a small risk of occurring, and which it would have been unreasonable for him to allow for. Physical conditions which are weather conditions are expressly excluded. The meaning of "weather conditions" will depend upon the particular terms of the contract. Under the standard ECC form the dictionary meaning of a meteorological condition, a state of atmosphere at a definite time and place with respect to wind, temperature, cloudiness, moisture, pressure etc. is likely to apply. This includes rainfall for instance, but does it include flooding? Significantly physical conditions caused by weather conditions are not expressly excluded as they are in the ICE. There is no English caselaw on this point, but there is the recent US case of Appeal of Coles Construction Co Inc [1997] 4 Bliss 5 although on a different form. The decision was that whereas adverse weather conditions can alter the physical site condition, it did not constitute a differing site condition. It was decided that weather alone could never give rise to recovery under this head. It is suggested that the decision would not be followed in UK and particularly on the terms of ECC Clause 60.1(12). It is at least arguable that under ECC the Employer carries the risk of physical conditions such as floods caused by weather conditions whether remote from or at the site.

The second ECC clause is the event described in Clause 60.1(13). Unlike the ICE form there is an objective test. The baseline is the "weather data" which is the recorded measurements at a location defined by the Employer. In the UK this will normally be a Meteorological Office weather station. Comparison is made to the "weather measurement" which is measured at a place defined by the Employer. The place will be either at the site or a sufficiently close weather station. The test applied is whether the "weather measurement" occurs on average less frequently than once in ten years when compared to the "weather data".

Unlike the ICE form, Clause 60.1(13) specifies the assessment period - one calendar month. Each month the contractor will be able to claim compensation as soon as the objective test is satisfied, and will be able to claim for both the cost and time consequences. Contractors need to examine the qualifying weather conditions specified by the Employer since not all weather conditions may be specified. The standard form for instance refers only to rainfall, snow and temperature and does not refer to wind.

Two separate standard tests apply for rainfall; either the cumulative rainfall or the number of days when rainfall is more than 5mm, for each calendar month. The qualifying date is the date when cumulative rainfall for the month exceeds the ten year return period for the month. This is the case whether or not the second rainfall test is satisfied.

How is the effect an event to be measured? Is the effect of an event to be assessed only for those days after the qualifying date, or is the effect over the whole month to be considered?

It is suggested that once an event becomes a compensation event then the contractor is to be compensated for its effects over the whole month. ECC Clauses 61.4, 63.1 and 63.3 are the relevant provisions, as well as the definition of the Accepted Programme in Clause 31. It is a unique feature of the ECC that the Accepted Programme is required to show resources as well as timing and duration of activities, and to make provision for time risk allowances. Taken together these clauses show that for each event the contractor is to be compensated for the difference between the actual time lost and the time lost forecast in the Accepted Programme. The intention is also that the contractor is to be compensated for his additional costs due to delay as well as loss of productivity.

The key for contractors is to pay particular regard to weather risks when preparing their ECC programmes and to provide realistic forecasts of productivity and lost time consistent with the allocation of risk under the contract.