For concurrent delay, do you look at cause? Or effect? Or both? “Effect” is the answer indicated by the Queensland Supreme Court in Civil Mining & Construction Pty Ltd v Wiggins Island Coal Export Terminal Pty Ltd [2017] QSC 85 (“Civil Mining”).
The following propositions can be gleaned from Civil Mining:
A – a distinction should be drawn between (i) the period that a delay event occurred (i.e. period of the “cause”); and (ii) the effect of that event in delaying works completion. Concurrent delay refers to (ii), and not (i).
B – where critical work has already stopped due to a delay event, a subsequent delay event – occurring during the period of work stoppage – has no effect, and does not concurrently delay completion.
I shall adopt the following terminology from the Society of Construction Law Delay and Disruption Protocol (2nd ed):
i) “Employer Risk Event” shall mean an event or cause of delay which under the contract is at the risk / responsibility of the employer, and which therefore gives rise to entitlement to extension of time (“EOT”).
ii) “Contractor Risk Event” shall mean an event or cause of delay which under the contract is at the risk / responsibility of the contractor, and which therefore does not gives rise to any EOT entitlement.
Brief Background
WICET was the employer and CMC the contractor.
In the court action, CMC claimed EOT due to various delay events, including Delay Event 10 (Financier consent delay).
In its grounds of judgment, the Supreme Court first found that Delay Event 10 was an Employer Risk Event for which CMC is entitled to 21 days’ EOT (see paras 628 – 634, 757).
Then the Supreme Court considered whether there was concurrent delay caused by Delay Event 10 and wet weather (see paras 759 – 767).
This was relevant because clause 35.5 of the contract provided that where more than one event causes concurrent delay, and at least one of them is a Contractor Risk Event, then there is no EOT to the extent that the delays are concurrent (see para 762).
Wet weather was a Contractor Risk Event (see para 761), whereas Delay Event 10 was an Employer Risk Event as mentioned above.
Proposition A
Delay Event 10 occurred between 22 January to 11 February 2013, whereas wet weather occurred between 24 to 27 January 2013 (see paras 628, 629(g), 629(h)). There was therefore an overlap of the periods in which both events occurred.
Despite such overlap, the Supreme Court did not find that wet weather caused concurrent delay with Delay Event 10. Instead, the Supreme Court appears to have agreed with CMC’s expert (Mr King) that wet weather had no effect in delaying completion, as CMC was already delayed by Delay Event 10 prior to the onset of such weather (see para 765).
From the above, it is implicit in the Supreme Court’s approach that for concurrent delay, one has to look at the effects of the delay events concerned as opposed to whether their period of occurrence overlapped. The mere fact that delay events overlap does not automatically mean that they concurrently delay completion.
Proposition B
Delay Event 10 was the failure of WICET to timeously procure Financier consent to variation works, which led to the stoppage of critical works (Bebo Arch) between 22 January and 11 February 2013 (see paras 628, 629(g), 757).
Wet weather – occurring from 24 to 27 January 2013 – started after Delay Event 10 commenced, and ended before Delay Event 10 ceased.
In this context, and on a prospective delay analysis, wet weather had no effect in delaying completion and the EOT from Delay Event 10 need not be adjusted (see paras 765, 767).
In other words, wet weather did not concurrently with Delay Event 10 cause delay in completion. Hence, clause 35.5 was not engaged to reduce the EOT from Delay Event 10.
It is important to note that the relevant critical works were already stopped during the period of wet weather. Hence, wet weather had no effect, since there was already no relevant work activity at that time. In order to setback eventual completion, a delay event has to affect a current critical activity, so as to trigger a knock-on impact on subsequent activities down the critical path.
The result may be different if the critical works were only slowed down by Delay Event 10 and wet weather had the impact of further slowing down / stopping those works. In that event, can it still be said that wet weather had “no effect” and did not concurrently delay completion?
For more on the treatment of concurrent delay in a prospective analysis, see here.
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