When the rain is the Employer's cost

The general rule: weather buys time, not money

Under FIDIC (1999) Sub-Clause 8.4(c), exceptionally adverse climatic conditions are a ground for an extension of time — but time only. The Contractor escapes liquidated damages for the weather period, yet recovers no cost for it. (Contrast NEC3/4, which treats weather as a compensation event — time and money — where it occurs on average less than once in ten years.)

The knock-on — where the cost comes back

The experienced claim asks a different question: why was I working in the bad weather at all? If an earlier delay by the Employer or Engineer — late access under Sub-Clause 2.1, late information, late approvals — shifted the works so a later critical activity was driven out of the dry season and into the rains, the weather delay is no longer a stand-alone event. It is a consequence of the Employer’s breach. You don’t claim the weather; you claim the Employer’s earlier delay — which carries time and cost — and the weather exposure is part of its consequences. It turns on an unbroken cause-and-effect link.

The authority

In Ellis-Don v. The Parking Authority of Toronto(1978), a 52-week car-park contract ran 32 weeks late. The Employer’s failure to obtain an excavation permit caused an initial seven-week delay, which cascaded — permit 7, commencing excavation 1.5, obtaining a crane 6, and extension into the winter period 3 — to 17.5 weeks, and the court found for the Contractor. It relied on Koufos v. Czarnikow (1967): a party in breach is liable for damage the parties should have contemplatedat contract formation as a serious possibility — here, that a seven-week permit delay would throw the works off schedule and cause “damages of the very type” suffered.

How you prove it

With a cause-and-effect chain — a delay analysis (windows / Time Impact Analysis) showing the works would have been in the dry season but forthe earlier Employer delay — backed by contemporaneous records and a clear but-for narrative. If the link is broken — say the Contractor’s own delay also displaced the works — the weather-cost claim fails and you are back to time only. A clean link wins both time and loss/expense.

This is the general principle behind the land-access case study: the Employer’s land-acquisition suspension pushed the critical earthworks into the rainy season, so the rains were the Employer’s cost, not the Contractor’s — the very knock-on this note describes.

You don’t claim the weather — you claim the Employer’s delay, and the rain is part of its consequences. No link, no cost; prove the chain, and the rain becomes the Employer’s cost.