In an option A contract, several weeks into the works commencing onsite asbestos sheets have been discovered.
The Contractor halted works. Would you consider this an employer risk (CE) or should the Contractor have seen this during the pre-site walk through and therefore priced for the removal of asbestos?
First of all, I believe you should check whether the issue fails within the coverage of compensation event as specified in Clause 60. You may also with to refer to your Contract Data Part 1 and Clause 80.1 and check whether it is a Employer’s risk event. If it is specified to be an Employer’s risk event, it is a compensation event under Clause 60.1(14).
I think the asbesto issue is a compensation event under Clause 60.1(12). This is because it is a physical issue happens inside the site and it is not a weather condition. As the asbesto is most likely covered by cladding or any other materials and thus the Contractor may not be able to discover them during the site visit. Thus it fits with the three requirement stipulated under Clause 60.1(12).
This would be a physical condition compensation event under clause 60.1 (12), although the matter is offset by the Contractor’s assumed responsibility of risk under clause 60.2, including a ‘visual inspection’ of the Site.
The problem is now retrospectively deciding what might have been reasonable to have assumed. It may have been obvious that there was some obstructions present, but whether it was clear that these contained asbestos is a further matter to consider.
Base the decision process on the balance of probabilities, especially as it seems that the Employer has not undertaken much (if any) Site investigations works, so not really helping themselves.