Civil Engineering Reference
In-Depth Information
Clause S.8(2)(c) however, poses a greater obstacle. It provides:
The operation of all plant and construction equipment shall be such that it does not cause
undue noise, pollution or nuisance. This may require the use of sound insulated compressor
and air tools, silencers on ventilating fans and restrictions on the working hours of plant
or such other measures as approved by the Engineer. The Contractor shall not be entitled
to additional payment if the Engineer requires that measures be taken to reduce noise and
pollution.
Once the injunctions were granted the engineer gave notices reflecting the provisions of the
injunctions, restricting the hours of work so as to prohibit work at night and thereby inhibited
Codelfa from continuing with its three shift operation under the contract.
The first paragraph of clause S.8(2)(c) contains a promise by Codelfa that it will not operate
plant and equipment so as to cause a nuisance. The second specifically looks to the possibility
of a restriction on working hours of plant. And the third denies additional remuneration if
the engineer requires measures to be taken to reduce noise and pollution.
Do these provisions support the view that Codelfa was undertaking in any event to perform
the contract work, even though the method contemplated by the parties might prove to be
unlawful or impossible by reason of its amounting to a nuisance and its being restrained by
injunction? I do not think that clause S.8(2)(c) has such a wide-ranging effect. It involves no
subtraction from the language of the provisions to say that it is quite consistent with the
contemplated method of work being an essential element of the contract. Indeed, there would
be no inconsistency between these provisions and an explicit provision for termination of the
contract in the event that the method of work was restrained by injunction. There was plenty
of scope for an exercise of the Engineer's power under the second paragraph so long as it did
not displace the continuation of that method of work.
I come back then to the question whether the performance of the contract in the new situ-
ation was fundamentally different from performance in the situation contemplated by the
contract. The answer must, I think, be in the affirmative. Paragraphs 14, 15, 16, 18 and 19 of
the Arbitrator's award go a long way towards establishing this answer. The finding contained
in para. 16 proceeds on the footing that the contract work could not be carried out as con-
templated by the contract once injunctions were granted, the effect of which was to prohibit
the continuous three shift a day operation six days a week. Performance by means of a two
shift operation, necessitated by the grant of the injunctions, was fundamentally different from
that contemplated by the contract.
There is, of course, no inconsistency between the conclusion that a term cannot be implied
and the conclusion that events have occurred which have brought about a frustration of the
contract. I find it impossible to imply a term because I am not satisfied that in the circum-
stances of this case the term sought to be implied was one which parties in that situation would
necessarily have agreed upon as an appropriate provision to cover the eventuality which has
arisen. On the other hand I find it much easier to come to the conclusion that the performance
of the contract in the events which have occurred is radically different from performance of
the contract in the circumstances which it, construed in the light of surrounding circum-
stances, contemplated.
