Agree with everything Andrew says below (or is that above) ... previously !
I would say read the clause with the crucial words in CAPITALS "experienced contractor or consultant would have judged at the Contract Date to have SUCH A SMALL CHANCE of being present that it would have been unreasonable for him to have allowed for".
I.e. not "unexpectedly small" or "unlikely" or other words. It really is transferring quite a lot of risk over to the Consultant or Contractor. And from memory, the judge thought that the amount of potholes found did not reach that high bar.
I would say read the clause with the crucial words in CAPITALS "experienced contractor or consultant would have judged at the Contract Date to have SUCH A SMALL CHANCE of being present that it would have been unreasonable for him to have allowed for".
I.e. not "unexpectedly small" or "unlikely" or other words. It really is transferring quite a lot of risk over to the Consultant or Contractor. And from memory, the judge thought that the amount of potholes found did not reach that high bar.