Disruption is not an Entitlement, rather it is the Cost Consequence of Change
In CPB Contractors v Transport for NSW, Chief Judge Hammerschlag struck out a claim for disruption. The Court held that the clause relied upon did not create an entitlement to payment for inefficiency.
His Honour said it would be commercially irrational to allow both an extension of time and a disruption payment for the same period.
The result reinforced a consistent principle across decades of authority. Disruption is not an entitlement. It is a cost effect that must be proven through evidence of change.
The principle
The Court limited recovery to situations when inefficiency caused the delay that justified an extension of time. The weakness in the contractor’s claim was the absence of a compensable change behind the inefficiency.
The reasoning was about contractual construction, not disbelief in inefficiency itself.
What we can infer and what experience shows
It can be inferred, and experience confirms, that the Court did not reject recovering inefficiency costs. It clarified that recovery must come through change, such as a variation, a late instruction, or a breach that altered the agreed work.
The claim is not that the project was disrupted. The claim is that the work changed and cost more to complete.
The role of the forensic QS
The forensic QS identifies the facts of change and measures the cost that followed. They explain where the work departed from the plan and support that analysis with clear evidence. This is about cost, not time.
How to structure the analysis
Each change must stand on its own evidence. Costs must be separated, never blended. The QS can structure the analysis by activity, by phase, or by day or week. The method depends on the records, not on preference.
Steps:
Identify the change.
Evidence it with contemporaneous records.
Quantify the cost using verified data.
Keep each event distinct.
The flaw in disruption techniques
Many practitioners rely on disruption techniques because they appear in the SCL Protocol. That is a mistake. The Protocol is guidance, not proof. Techniques such as measured mile or earned value may describe differences in productivity, but they do not show cause and effect.
A forensic QS draws conclusions from what the evidence shows. Facts persuade; formulas do not.
Takeaway
CPB Contractors v Transport for NSW completes the progression from Kvaerner to Probuild. It confirms that inefficiency is not a separate claim. It is the cost consequence of change.
Disruption techniques describe symptoms. A forensic QS proves causes. The court trusts evidence built on facts, not on formulas
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For quantum experts, CPB Contractors v Transport for NSW completes the progression from Kvaerner to Probuild. It confirms that inefficiency is not a separate claim. It is the cost consequence of change.