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ARTICLE · 10 DECEMBER 2015

Unanticipated Site Conditions – Beware The Danger Below

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In Brad Gould, the Province of New Brunswick issued a call for tenders for the construction of a courthouse in Saint John and retained an engineer to prepare a geotechnical report.

CanadaReal Estate and Construction
Brian P. Reid
Brian P. Reid
David Wahl
David Wahl
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The recent New Brunswick Court of Appeal decision in Brad Gould Trucking & Excavating Ltd v Bird Construction Co, 2015 NBCA 47 [Brad Gould], serves as a warning to contractors that a failure to understand the contractual allocation of risk and engage a qualified geotechnical expert may preclude a successful claim for increased costs caused by unanticipated site conditions, and expose the contractor to significant loss on a project.

Case Summary

In Brad Gould, the Province of New Brunswick issued a call for tenders for the construction of a courthouse in Saint John and retained an engineer to prepare a geotechnical report. Bird Construction relied on the Province's geotechnical report in preparing its successful bid. However, almost immediately after commencing work, Bird's subcontractor discovered that the bedrock could not be removed by digging as planned, but would require rock-breakers at a significantly increased cost. Bird convinced its subcontractor to

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