Aust Education Union (SA Branch) v Grieve No. Scgrg-95-29 Judgment No. S183

AUSTRALIAN EDUCATION UNION, SOUTH
AUSTRALIAN BRANCH v GRIEVE
[1999] SASC 183

Full Court: Doyle CJ, Perry and Martin JJ

DOYLE CJ. I agree with the orders proposed by Perry J, and with the reasons that he gives for making those orders. There is nothing that I wish to add to those reasons.
PERRY J. The appellant is the successor to the South Australian Institute of Teachers Inc. It sued the respondent, an architect, for damages alleging that he had failed properly to carry out the terms of his engagement in connection with the removal of asbestos from the ceiling of a building owned by the appellant at Greenhill Road, Parkside. The trial judge, Williams J, dismissed the appellant’s claim.[1] The appellant appeals to this Court against the order dismissing the action.
[1] See reasons for judgment dated 4 June 1998, judgment No S6705.
The building in question was erected by the appellant in 1974. Part of the building, called Raggatt House, is single-storeyed and includes a hall and associated amenities.
The underside of the iron roof of Raggatt House, which included the roof over the hall, had during its construction been sprayed with asbestos as an insulating material. There was a good deal of over-spray which resulted in the asbestos lodging on and becoming attached to beams and cross-members, and some also fell into the cavity brick wall.
On about 6 April 1984, Mr Derek Bee, the appellant’s building caretaker, was checking some cabling in the ceiling cavity above the hall. He discovered what he thought was asbestos, and immediately advised Ms Lee, the then General Secretary of the plaintiff. She arranged for samples of the material to be taken and forwarded to Amdel on 9 April 1984. Amdel confirmed that the material supplied contained asbestos.
After the confirmation by Amdel that the sample submitted to it was asbestos, the appellant’s executive met and authorised Ms Lee to take the necessary steps for the removal of the hazard posed by the asbestos.
On about 18 April 1984, Ms Lee met the respondent at her office. The learned trial judge found that she explained to the respondent that the appellant wished to engage him as architect to deal with the problem, and that in the course of doing so she made it clear that the executive wanted to achieve “complete removal” of the asbestos. Although the respondent admitted that he had no previous experience with asbestos removal, he agreed to accept the retainer.
A series of meetings then ensued between Ms Lee and the respondent. They both gave evidence before the trial judge, but understandably, given the lapse of time, neither had a precise recollection as to the content of the discussions. However, the learned trial judge found, and there is no reason to doubt the finding, that the respondent raised as an option the possibility of the removal of the roof. Ms Lee rejected that suggestion as being too extreme, and at the same time made it clear that cost was a factor to be considered.
A common method of dealing with an asbestos problem of this kind in 1984 was to scrape off the asbestos from the iron cladding of the roof and other exposed surfaces to which it might be attached, and then to spray the surfaces which had been cleaned off, with PVA paint. It was to be expected that some asbestos would, to a degree, have penetrated small cracks and crevices eg between sheets of iron where it would not be feasible to remove it. But the object of the application of the PVA paint was not so much to seal over any substantial deposit of accessible and removable asbestos on the iron, as all such asbestos as was accessible should be removed. Rather, the application of PVA paint was to seal against the iron or other affected surfaces such as supporting beams, any loose, fine fibres of asbestos which might be released into the air during the process of removal.
The respondent duly prepared a specification for the work, and called for tenders. The contract was let to a company called Consolidated Contractors Pty Ltd (in Provisional Liquidation) (“Consolidated Contractors”), which was licensed by the Department of Labour as an asbestos removal contractor. Consolidated Contractors duly commenced the work in late October or early November 1984. It was obliged to operate in very difficult working conditions. Sections of the ceiling sloped, and some areas were very cramped.
After they had embarked upon the task of removal, Consolidated Contractors realised for the first time that the asbestos which had been sprayed on had been mixed with an adhesive which made the task of removal more difficult than they had anticipated. They had not tendered on the basis of the more extensive work which turned out to be required. Following completion of the work, Consolidated Contractors eventually secured an increased payment over and above the contracted price as the result of the award of an arbitrator.
On 19 February 1985, the respondent issued a certificate of practical completion of the works. Consolidated Contractors having apparently completed the work, the appellant assumed that the problem had been fixed.
In 1986, asbestos was found beneath the floor of the building. Removal was not attempted. Rather, the plaintiff dealt with the matter by sealing a trap in the floor, after placing a notice below the trap warning of the presence of asbestos.
In 1992, the appellant engaged Resource Development Pty Ltd (“Resource Development”) as project manager to oversee a program of refurbishment of the building. Resource Development organised the refurbishment to take place between September 1993 until May 1994. That work was interrupted when in January 1994 the appellant became aware of the continued existence of loose asbestos material in the ceiling cavity above the hall. Another firm, B.J. Insulation, was engaged to address the problem, which was dealt with by the removal and replacement of the Raggatt House roof.
On 10 January 1995, the proceedings were instituted by the appellant against the respondent. The respondent pleaded s35 of the Limitation of Actions Act 1936 by way of a defence, as to which the appellant sought an extension of time for the institution of the proceedings pursuant to s48 of the Act, on the footing that its discovery of residual asbestos in the ceiling in January 1994 was the ascertainment of a material fact within the meaning of s48.
I have not so far referred to the contractual arrangements between the parties.
As I have said, the engagement of the respondent by the appellant was pursuant to an oral contract struck between Ms Lee on behalf of the appellant, and the respondent, following discussions between them. The respondent agreed to prepare appropriate specifications for the removal of the asbestos; call for tenders; and (at least) administer the performance of the contract for the work to be done, entered into between the appellant and the successful tenderer.
The initial discussions between Ms Lee and the respondent clearly proceeded on the basis that the asbestos would be completely removed. Furthermore, the object of the exercise was to render the building safe. The respondent’s own evidence was:
“Q.... When you prepared the specifications, did you prepare them with the aim that once the specifications were completely carried out, that the building would be rendered safe from loose asbestos.
A.That was the intention, yes.
Q...... That the union would have no need to spend further money on removing asbestos once the work was completed in accordance with your specifications.
A.Yes, in terms of the specifications, yes.
Q...... Further, that the union would need to do no more work in relation to removing loose asbestos, because it would have been all done. That is if your specifications had been properly carried out.
A.Yes.
Q...... Because to do a job of less than those last three criteria, would be effectively no job at all in relation to asbestos removal. Would you agree with me.
A.Are you saying you’re either pregnant or not?
Q...... Yes a perfect analogy, asbestos is such a dangerous, poisonous substance, that you are either pregnant, that is you have it in the roof, or you’re not pregnant, it’s all gone. That’s a very good analogy, isn’t it.
A.Well, I don’t believe it is necessarily, because the aim to render the building safe was the intention.
Q...... To render it safe, you must remove or properly contain all of the asbestos. That’s correct, isn’t it.
A.I believe so.”
The evidence indicates that there was one significant variation to the contract.
Ms Lee gave evidence that at a fairly early stage, perhaps within a week or two of the commencement of the work, the respondent came to see her to say that the contractors were having difficulty in removing the asbestos, particularly from the roof. Her evidence was in part:
“A.... Yes, at a fairly early stage after the commencement of work, Mr Grieve came to see me to tell me that the contractors were having difficulty in removing the asbestos; as I recall particularly from the roof.
Q.Did he indicate to you what that difficulty was.
A...... He said that the original application of the asbestos had been - no, he said that adhesive had been used to ensure that the asbestos stayed where it was supposed to be, and that the contractors were complaining that it was not possible to remove the asbestos completely from the grooves in the roof material, and he said to me, ‘And frankly, Jan, you would have to scrape it out with a teaspoon’, which I took to mean that it was not practicable to remove the asbestos from the roof grooves.
Q.Was there any other area of the roof or the support base within the roof in which you were advised there were problems removing this asbestos.
A...... Not at that time, no.
Q.Can you now recall when that discussion took place; that is concerning the flutes and the difficulty of removal from those areas.
A...... I can’t recall with any certainty, but my recollection is that it was early in the process and therefore I would suggest some time in the first fortnight of November.
Q.Subsequent to that, were you advised as to any problems in removing the asbestos in any area other than the flutes - or the grooves as you have called them - in the roof.
A...... At the very last stages - and my recollection is virtually the last meeting that I had with Mr Grieve while the work was in progress - Mr Grieve indicated that the contractor was not prepared to do any more work, that there was some asbestos remaining in the roof - you call them flutes?
Q.If you’re happy with ‘groove’, that’s fine.
A...... In the grooves of the roof, and that there were other parts where it had proved to be impossible to remove the asbestos.
Q.Did he tell you where those other parts were; that is where it was impossible to remove asbestos.
A...... No, I don’t recall a discussion of the actual parts. I had the impression of corners, low areas in the roof where it was simply not humanly possible to remove every last fibre of material.”
Although Ms Lee was cross-examined as to that passage in her examination in chief, she did not resile from it. The respondent did not give any evidence in chief on the topic, but in cross-examination indicated that he could not recall the conversations alleged by Ms Lee, and deferred to her recollection as to them.
It seems to me that this evidence should have led to a finding that the initial stipulation that all asbestos was to be removed must be taken to have been varied during the course of the work, to the intent that the obligation was to remove all asbestos which it was reasonably practicable to remove, which included all of the visible asbestos, except some of the asbestos which it was simply not practicable to scrape away from the grooves or flutes of the roof. Also it was accepted that it was not reasonably practicable to remove some asbestos, which was not accessible.
But the overriding contractual responsibility cast upon the respondent, notwithstanding the variation to which I have referred, was to ensure that the work which was carried out left the building in a safe condition.
It was the appellant’s case at the trial that the respondent’s duty was to supervise on a day-to-day basis rather than administer the contract with the builder. The distinction is a well-known one,[2] but I do not think that it matters in this case. I say that because, even on the basis that in technical terms the respondent’s role was limited to that of contract administration, as will be seen, the content of the respondent’s duties must be taken to have encompassed certain inspections, and otherwise to have ensured that certain critical requirements in the specifications had been met, which I will in due course refer to, and which are in turn central to the determination of the issue of the respondent’s liability to the appellant.
[2] See Brooking on Building Contracts (3rd Ed 1995) (Butterworths) paras [17.1] and [17.11].
It is relevant to note in that respect that annexed to the report of an architect, Mr Robert Hall, called by the plaintiff, which was tendered as part of his evidence in chief, was a copy of the standard form of agreement between an architect and his or her client commonly used by members of the Royal Australian Institute of Architects at the relevant time. Mr Lunn of counsel for the respondent did not join issue with the assertion by Mr Hevey of counsel for the appellant that the form was tendered to provide a basis upon which His Honour might find what was generally accepted as between architects and their clients as to the scope of the architect’s duties. Clause B 1.08 of Schedule B to that form is apposite. It reads:
“Inspection
Where the services to be provided by the architect include contract administration the architect shall make such inspections as may reasonably be necessary in order reasonably to be satisfied that the buildings or other works executed are in general accordance with the contracts which the architect is administering.
Supervision of work performed under the building contract or other contract or contracts is not part of the services to be performed and provided by the architect pursuant to this agreement.
A clerk of works may be employed by the client, subject to acceptance by the architect, and shall be under the architect’s direction. He may be paid directly by the client or through the architect as agent of the client.” (emphasis added)
There was evidence from witnesses on both sides that it was usual for an inspection of the work to be made before a certificate of practical completion was to be issued. The evidence of Robert Hall, called by the appellant, who is a senior and experienced architect and a former president of the RAIA, was that inspections should be made even when the role of the architect was contract administration, although the frequency and duration of the inspections in such a case would be less than in the case where an architect is engaged to supervise. He said further:
“One of several notices in the usual building works contract is a Notice of Practical Completion. The issue of this notice releases the builder from certain responsibilities and, in effect makes it obligatory on the architect to ensure that the works are in fact complete for all practical purposes. The architect can only do this by one or more careful inspections, scheduling any matters of deficiency, issuing such to the builder and requiring the builder to make good the deficiencies to the architect’s satisfaction before the notice is issued.” (emphasis added)
Evidence to the same effect was given by an architect called by the respondent, Mr Peter Haddrick. He said during the course of cross-examination:
“Q.... Would you agree that a certificate of practical completion in relation to the removal of loose asbestos from the ceiling area is a certificate which should only be given after some form of inspection by the architect.
A.Yes.
Q...... Because the substance is so dangerous that it requires in effect the person who has taken it upon himself the role of at least administering the contract to go and have a look and make sure the job has been done.
A.I would normally expect to make an inspection like that personally, yes.”
As for the contractual arrangements between the appellant and Consolidated Contractors, the evidence indicates that a written agreement was entered into between them. But given the de-registration of Consolidated Contractors during the intervening period and the long lapse of time between their performance of the work and trial, neither party was able to produce a copy of the contract.
Both parties accepted, however, that the contract with Consolidated Contractors obliged Consolidated Contractors to perform the work in accordance with the specifications upon the basis of which they put forward their tender.
The specification is a lengthy document substantially drawn up by the respondent, but to which was annexed what is described as the “Code for the Safe Removal of Asbestos - Based Thermal/Acoustic Insulating Materials” (the “Code”), being a Code adopted by the National Health and Medical Research Council in June 1981. Various clauses in the specifications and in the Code are relevant as indicating the degree of involvement expected of the architect.
The scope of the work is defined in Section 2 of the specifications, which provided in part:
“The scope of work comprises the complete removal and disposal of all sprayed asbestos material, subsequent spraying of all clean surfaces with PVA paint and the replacement of the asbestos with a different material to perform thermal and acoustic requirements of the building at (various described locations).”
Section 9 of the specifications specifies in part:
“All materials and workmanship and materials shall be of high quality and to the satisfaction of the architect.” (emphasis added)
Section 30.02 obliged the builder not to proceed with the removal work until the screening of the area (to prevent the escape of airborne asbestos particles) had been approved by the architect and the Department of Labour. The efficacy of the screening was to be confirmed by a smoke test during which the sealing effected by the screen was to be inspected by the architect (Section 31.02). Once removed, asbestos was to be bagged and the bags, in turn, were to be removed from the site “as directed by the architect” (Section 48.01).
Further involvement of the architect was provided for in Section 48.06, which provided that the architect would inspect the removal zone after the asbestos stripping was completed and the area had been vacuumed and washed down. Section 48.07 provided in particular that if the removal zone was not cleaned to the architect’s satisfaction, or if the dust levels exceeded the Work Control Limit, further clean-up was to be done at the direction of the architect.
An important addition to the specifications, headed Addendum Number 1, is in the following terms:
“The following clauses should be added to SECTION 48 PROCEDURES ON COMPLETION.
After completion of asbestos stripping and wash-down there shall be an inspection of the removal area prior to any PVA application.
This inspection shall be carried out by the Builder, the Architect, the Monitoring agent and a Client representative. The PVA application shall commence only after the Architect’s approval.” (emphasis added)
The various parts of the specifications (including the Code) to which I have referred, together with the evidence as to the preliminaries which should precede the issue of a certificate of practical completion, indicate that even if it is right to conclude that in this case the architect’s involvement was limited to administration rather than supervision, there are various stages during the course of the work when the architect was to become closely involved with, and more particularly to inspect, the work.

I have no hesitation in concluding from this, despite the fact that there was no written agreement drawn up between the respondent and the appellant, that the respondent’s duties included a duty to make the inspections envisaged by the specifications, and a thorough inspection before the issue of the certificate of practical completion. That view is reinforced by Clause B 1.08 of the Standard Form of Agreement between architects and their clients to which I have referred.
The learned trial judge held that it was normal practice in 1984 for an independent asbestos “monitor” to be contracted by the building owner when work of the kind in question was being performed. A monitor was engaged for this particular work site, namely, Environmental and Industrial Laboratories. The respondent’s case was that he relied upon the monitor’s advice as to when it was appropriate to spray the job with PVA, rather than make an inspection himself and come to his own decision about it.
It is true that some support for the view that it was appropriate for the architect to rely on the monitor for this purpose came from evidence called by the appellant, and in particular the evidence of Mr Hall. He said in cross-examination that although he had never engaged an asbestos counter or monitor himself, he agreed that such a person had two functions: one was to conduct a monitoring of airborne asbestos to see that it was reduced to a safe environment; and the other function was to assess whether the building was “acceptable to be used in its present condition or sufficient work has been undertaken for the area to be sprayed with PVA”. As to the latter, he agreed that an architect might rely upon the monitor to decide when a particular area should be coated with PVA. The particular passage in cross-examination reads:
“Q.... It would be appropriate, I suggest, for an architect to rely upon such a service (the asbestos monitoring service) in relation to whether or not the particular area should be coated with PVA after the removal process had been undertaken.
A.Yes.”
The problem which I have with that evidence is that it is pitched in general terms, and does not allow for the specific duties cast upon the respondent by the particular contract entered into between him and the appellant.
I make the same criticism of the evidence of the respondent, when he agreed that it was appropriate for the architect to rely upon the monitor in that way.
It is clear from the respondent’s evidence that he did not make an inspection at the stage between the removal of the asbestos and application of the PVA. This is borne out by the following passage in his cross-examination:
“Q.... So when you went up in February 1985, the place had already been sprayed.
A.Yes.
Q...... When did you go up to give approval for the PVA to be sprayed.
A.I didn’t go up to give approval. Sorry, when did I go up?
Q...... So you never went up there at any stage for the specific purpose of saying to the contractors ‘Now you may proceed with the spraying of PVA onto this area’.
A.No. I relied on the monitoring agent to basically OK each area of PVA application.
Q...... So you never made a visit where you specifically said to the contractors ‘I am satisfied this area is now appropriate to be sprayed with PVA’.
A.No.”
The learned trial judge in his reasons for judgment dealt specifically with what he described as the “effect of Addendum 1”. He described the addendum as “no more than a mechanism to regulate when the builder could proceed with particular work”. I would have no quarrel with that particular finding. However, in my view, the learned trial judge erred, and pitched the duty of the architect too low, in the following passage:
“Having regard to the status of the monitoring agent and the overall arrangement and its associated responsibility, I see nothing of particular significance in the way in which the specification has been drawn (expressed as it was so as to make the architect the conduit to communicate the contractual approval for the purposes of the builder’s contract with the owner). The separate responsibilities of the monitor and the architect are to be found in the terms of their own separate engagements to the plaintiff. The architect did not profess a particular expertise in relation to asbestos. He put in place arrangements whereby the owner (in accordance with practice) would rely upon the independent monitor. The terms of the addendum to the specification are consistent with the recognition of the architect’s role as an administrator of the building contract.”
In particular, in my opinion, that passage does not give sufficient weight to the words in the addendum that “the PVA application shall commence only after the Architect’s approval”, which follow a reference to the inspection to be carried out by the builder, the architect, the monitoring agent and a client representative.
It must be borne in mind that this was a project which had to do with nothing else but removal of asbestos and containment of the area upon which it had been affixed. Asbestos removal was not some incidental aspect of a large project in which the architect was involved.
It seems likely that the respondent took part in an inspection which occurred either on 3 or 10 November 1984 when the respondent was accompanied by Mr Steven Young, who was one of the provisional liquidators of Consolidated Contractors, and Ms Owens. Scraping off had been started at that stage but was nowhere near completion. It was but two or three weeks into the work which had two or three months to go before it was completed.
In my opinion, there are at least two stages at which the respondent owed a duty to make a careful inspection of the site. They were, following the removal of the asbestos and before the application of PVA; and the second, after the builder had finished the removal work and before the issue of the certificate of practical completion.
The respondent did not make an inspection on either of those occasions.
If the respondent had made careful inspections then, it seems to me that it would have been apparent to him that there had been inadequacies in the extent of the removal of the asbestos and in the extent of coverage of the PVA, which should have led to instructions to the builder to remedy the deficiencies in the work.
It was the appellant’s case that the inspections carried out in January 1994 and the evidence called before the learned trial judge as a result of those inspections, should have led to a finding that ten years earlier when the work was done in 1984, the asbestos removal was slap-dash and not thorough enough to satisfy the standard required to render the premises safe, and that the application of PVA was likewise deficient and did not cover the whole of the area which should have been sprayed.
The learned trial judge found that what deficiencies were apparent in 1994 could not be sheeted home to the respondent for two reasons. One was the narrow view which he took as to the duty upon the respondent, which, as I have said, in my view, was in error. The other was because he was not satisfied that loose asbestos apparent during the inspections in 1994 was not due to deterioration during the intervening period. In particular he held:
“The plaintiff relies upon the observations made in 1994 in support of its contention that the work in 1984-85 was not properly carried through. The evidence does not take account of what may have happened over a period of nine years as a result of the breaking down of the material. Differential expansion and contraction of the materials seems to be a likely cause of the loose material found in 1994 although other possibilities were not excluded. The conditions in the ceiling were extreme and Mr Hall explained how this could occur.”
An important item of evidence relied upon by the appellant in this respect was evidence of a video cassette recording taken of various parts of the interior of the ceiling under the roof in question by a Mr Rahlf, an employee of B.J. Insulation, which was the firm called in in 1994 to advise on the removal of the residual asbestos.
The video was shown to the Full Court on the hearing of the appeal, but I would not be willing to draw any inferences from the appearances of various materials depicted in the video attached to the underside of the roof and on various beams, et cetera, without the aid of the expert evidence.
Mr Rahlf had been involved in asbestos removal for some ten years before coming to the site in 1994, where he fulfilled the role of supervisor of the work to be done by his firm. He inspected the ceiling space and saw what he believed to be residual asbestos on the beams and the roof sheeting. He said that it would have been readily apparent to anyone in the industry that it was asbestos and not some other substance which might be mistaken for it. In any event, samples were taken which confirmed that the material which he saw was indeed asbestos.
Immediately after he saw the asbestos, Mr Rahlf notified the Department of Industrial Affairs, whose representative, one Adrian Grey, came down to the site. It was then that an inspection took place, during the course of which still photos and the video were taken.
Mr Rahlf pointed out in his evidence, which was illustrated by the display of the video, a number of clumps of material which he identified as asbestos. His evidence was that there was a good deal of the loose material which had not been sprayed with PVA. His estimate was that most of the beams had been sprayed with PVA, but only about 50% of the roof sheeting had been sprayed. His evidence was that he had never in the ten years that he had been in the industry, left an area that he had cleaned of asbestos in a state equalling what he saw during the course of his inspection, and he had never observed any other firm leave an area in such a state.
Mr Rahlf was engaged in the removal of the residual asbestos, and found that much of it was so loose that it could be removed by vacuuming. There were other areas, particularly where PVA had been sprayed on the asbestos on the roof where it had adhered rigidly. As I have said, the roof itself was removed.
It is important to note that Mr Rahlf was not cross-examined as to his evidence that as much as 25% of the overall area which should have been sprayed had not been sprayed, and neither was he cross-examined to the effect that what he saw was asbestos might have been firmly adhering in a state appropriate to be sprayed with PVA in 1984, but had subsequently deteriorated and become loose.
Another witness for the appellant, one Michelle Nichol, gave evidence that in 1994 she was in employment as operations manager at M.P. Laboratories, a company carrying on business as “occupational hygienists”. She had had about four years experience with the company before inspecting the site in question in 1994. She had undergone a training program to do with asbestos management, more particularly sampling techniques, asbestos fibre counting, building surveys and inspections, and risk evaluation. She was familiar with the standards of the National Association of Testing Authorities to do with the ascertainment of levels of airborne asbestos monitoring and counting.
Apart from asbestos counting, her work with the company included ensuring that the outcome of asbestos removal met with what she described as “our quality management standards”, and measured up to the brief from the clients. She had worked on a number of asbestos removal sites in Adelaide and in Western Australia as project manager, ensuring that the required standard of asbestos removal had been met. She said that she had been project manager for some “dozens” of sites, and inspected some hundreds, “possibly thousands” of buildings.
She conducted analyses of samples from this site on 18 and 19 January 1994. She visited the areas that had been shown to her in the video, and went about methodically visiting each area, observing and taking photographs. Like Mr Rahlf, she formed the impression that there was much loose material in the area which she thought was asbestos. She expressed the view that there was an unacceptable amount of material left to be sprayed.
She was responsible for a report prepared by M.P. Laboratories which was tendered as an exhibit. The conclusion expressed in the report is:
“It is evident that the levels of both residual asbestos and asbestos debris within the ceiling space and other nominated areas of the original removal zone are in excess of even the most liberal interpretation of the contractor’s and architect’s obligations as set out within the tender specifications and also within the guidelines of all known relevant guides and codes of practice in 1984. ......... Although it is evident that removal was effected to some extent in 1984, it has been inadequate to the extent that a larger percentage of the area remains significantly contaminated. Work has to re-done. And in the context of asbestos removal, this means a 100% re-work. Additionally, there is little evidence of the application of PVA paint to a satisfactory standard. .....”
During the course of her cross-examination, she said that “asbestos, both residual and debris, were significantly widely spread around the roof space”. She said also:
“If the roof was not going to be demolished, I would want a much more vigorous attempt to remove the residual white material, a very big clean-up and an extremely thorough spray of PVA and more than one coating of it. ......”
Evidence from an independent source was given on behalf of the appellant by Henry Gotham, who, before his retirement, was employed by the Department of Labour and Industry as Assistant Head of the Asbestos Section. He retired in 1992. He described the application of PVA paint as a process designed simply to seal down odd fibres.
He inspected the ceiling space with Mr Grieve before any work had commenced, and was responsible for giving approval for the removal of asbestos. His evidence was that the quantity of material appearing on the roof decking in the video was more than it would be appropriate to leave for spraying with PVA. During the course of his evidence he said:
“I am amazed that that quantity of asbestos was left on the RSJs and also the clip block. I have never seen anything like that in all my time in the industry after a purported removal.”
He described parts of the job as having the appearance of a “very poor effort in cleaning asbestos from the decking”. During the course of his evidence, Mr Gotham said:
“Q.... The video which you have viewed today, if you were inspecting a site, would you have allowed the area to have been marked as completed.
A.No, there would mostly be harsh words said between myself and the contractor.
Q...... Despite your role as a government department, did you actually have any power to intervene to force the contractor to do more work.
A.If it was obvious, like it appears in that video there, I would have just simply said to them that you can’t spray with PVA because there is too much asbestos visible.
Q...... Was that direction ‘not to spray’, binding upon the contractor.
A.Yes, because the contractor reaches a stage in normal procedures, they consider all asbestos as being removed, and they can’t just spray the PVA themselves when they consider it necessary. Out there somebody should do the inspection at that time, to see then that the general stuff is removed and then they can spray with the PVA.”
Again it is important to note that Mr Gotham was not cross-examined as to his assertions that the amount of asbestos which was there in 1994 was indicative of a job done in 1984 which he never would have approved. He was not cross-examined either as to his observations and comments about the video.
In my opinion, despite the evidence of Mr Haddrick that expansion and contraction in the intervening period might have resulted in a breakdown of the coating over the asbestos and resulted in more loose asbestos being apparent than might have been the case at the time the job was being done in 1984, the failure to cross-examine either Mr Gotham or Mr Rahlf on this issue as to which they had expressed adamant and unqualified condemnation of what the work must have looked like in 1984, coupled with the evidence of Ms Nichol, should have led to findings that too much asbestos was left in areas where it was readily accessible and might have been scraped off, that it was not in a state where it could satisfactorily be sealed off with PVA paint, and that in any event, the application of PVA paint was defective in that there was a substantial proportion of the area in question which was not sprayed.
In reaching those conclusions, I have not overlooked the evidence of Mr Hall given during the course of his cross-examination, as to the likelihood that expansion and contraction of the roof decking would have adversely affected the bond between it and the attached asbestos. That evidence was couched in general, theoretical terms. At no time was he asked whether that process would explain the total picture as it appeared in the video, and particularly the presence of the whole of the loose asbestos depicted in it.
In any event, some of the loose asbestos was found to be hanging from obviously accessible beams and cross-members, which, even on the basis of the contract as varied, should have been scraped clean of asbestos in the first place.
Furthermore, that evidence does not answer the uncontradicted evidence that a considerable proportion of the area which should have been coated with PVA paint, was not sprayed at all.
To make it clear, as I have earlier accepted, the initial contractual stipulation to remove all visible asbestos was varied to allow for the fact that it was simply impracticable to scrape off all of the asbestos which could be seen in the grooves and flutes of the roof, and some also which was in areas in which it could be seen but not reached for the purpose of removal. But despite that, it seems to me clear from the evidence of the witnesses to which I have referred that there was much asbestos left in the roof cavity which did not come within either category, and furthermore, was left unsealed by PVA paint.
In reaching the view just expressed, I have substantially reviewed the factual findings reached by the learned trial judge. While such findings must always be treated with respect, there is nothing which can “deprive this Court of the power and duty of review of factual conclusions”.[3] While it is true that this Court would hesitate to interfere when the factual findings of the learned trial judge have turned upon his or her assessment of the credit of witnesses,[4] this is not a case in which the learned trial judge reached a view as to the credit of any of the witnesses which could stand in the path of the conclusions which I have reached.
[3] State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306 per Kirby J at 321.
[4] De Vries v Australian National Railways Commission (1993) 177 CLR 472 per Brennan, Gaudron and McHugh JJ at 479.
True it is that with respect to the evidence of both Ms Nichol and Mr Rahlf, the learned trial judge doubted that they had qualifications, experience of knowledge sufficient to relate their conclusions based on an examination performed in 1994 to the position as it was in 1984 and 1985. But there was no doubt that they both had very considerable general experience in dealing with asbestos and asbestos related problems. As to the accuracy of their observations and whether they held good, looking back at the position as it was when the work in question was done, I have reached the firm conclusion that the learned trial judge simply did not give proper weight to items of evidence which were either not in contest or not seriously capable of being challenged.

I add that in my view, certain specific findings by the learned trial judge were not supported by any evidence at all. For example, his finding:
“The extent and standard of work required was generally set by EIL as asbestos monitor but ultimately the extent of the work was determined by discussion between Consolidated Contractors, the plaintiff and the monitor.”
There is, so far as I can see no evidence which suggests that any representative of the plaintiff was ever involved in any such discussion, nor any evidence of any decision being taken which supports that finding.
Furthermore, I am unable to see that there is any evidence that could possibly support the finding of the learned trial judge that:
“It is implicit in the plaintiff’s conduct of the arbitration that it approved of the work.”
On the contrary, the plaintiff was totally reliant upon the assurance of the respondent that the work had been performed to the requisite standard, as evidenced by his issue of the certificate of practical completion. The evidence indicates that no representative of the plaintiff had been inside the ceiling at any relevant time since early November 1984.
Although the respondent might have “relied heavily upon the monitor”, for the reasons which I have given, this could not exonerate him from the role which was expected of him, having regard to the terms of the contract.
Furthermore, I regret to say that there I can find no evidence to support the finding that:
“Ultimately the amount of work undertaken be a matter of negotiation between the plaintiff and Consolidated Contractors”.
While the learned trial judge described Mr Haddrick as an impressive witness, whose evidence he accepted and relied upon “in its entirely”, it was Mr Haddrick’s evidence which, as I have pointed out, indicated that there was a duty upon the architect physically to inspect the site before issuing a certificate of practical completion.
In my opinion, this in the class of case where it can properly be said that there has not before now been a determination of the appellant’s case “upon a consideration of the real strength of the body of evidence it presented”.[5]
[5] State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (supra) at 321.
In my opinion, the learned trial judge should have been led to the conclusion that the respondent was liable, either in breach of contract or in negligence, in failing adequately to inspect the work, more particularly at the two critical stages to which I have referred; in failing to ensure that the extent of the removal of the asbestos was as complete as could practicably be achieved; and that following removal of as much of the asbestos as it was reasonably practicable to remove, the affected areas were adequately and completely sealed off with PVA paint.
While the conclusion which I have just expressed would normally lead to the allowance of the appeal, there are two complications which must be addressed.
The first complication is that the learned trial judge failed to consider and determine the issues raised under the Limitation of Actions Act 1936, namely, the question whether or not the action was commenced, within the meaning of s35, more than six years after the accrual of the cause of action, and if so, whether the plaintiff was entitled to an extension of time for the commencement of proceedings pursuant to s48 of the Act.
The learned trial judge referred to the Limitation of Actions Act issues in his judgment. In the course of the factual summary, which occupies the early part of his reasons, the learned trial judge said:
“As a result of the expense incurred in asbestos removal in 1994 and the building delays thereby occasioned, the plaintiff instituted this action on 10 January 1995. The defendant relies upon s35 of the Limitation of Actions Act 1936 but the plaintiff asserts that the claim was made within twelve months of the ascertainment of the material facts and seeks and extension of time as appropriate pursuant to s48 of the Limitation of Actions Act.”
But he does not thereafter refer to the Limitation of Actions Act issues. He simply had regard to the question of liability, as to which he held that the plaintiff had failed to make out its case.
The learned trial judge’s failure to deal with the matter is surprising, given the fact that it was dealt with at some length in the written submissions put to him, both by the appellant and by the respondent.
I suppose that the learned trial judge might have said that in view of his finding as to liability, it was unnecessary to determine the question whether the action was statute barred, and if so, whether an extension should be granted. But he chose not to say so.
I have considered whether it would be proper for this Court to deal with the matter. Certainly, I think it highly unlikely, given its sensitivity as to the dangers posed by the presence of asbestos, that the appellant was aware of the problem until January 1994, within twelve months of suing. However, arguments were not fully developed before this Court on the hearing of the appeal as to that aspect of the matter. Not without a degree of reluctance, I can see no alternative but for it to be referred back to the learned trial judge.
The other complicating factor is as to damages. It is unnecessary to make any sort of analysis of the basis upon which the appellant’s claim in damages was advanced, as again, that was not a matter which was canvassed at any length on the hearing of the appeal. However, there are obvious difficulties in the path of the appellant in proving any substantial damage as a result of what I would hold to be relevant breaches of contract and negligent breaches of a duty of care.
If the respondent had made proper inspections and had ensured that Consolidated Contractors had cleaned off the asbestos to a satisfactory level and been more diligent in sealing off afterwards with PVA paint, it may well be that the amount awarded by the arbitrator for the contract over-run would have been correspondingly higher.
The situation is even more complicated by reference to the fact that on one view of the evidence, the respondent owed a duty to recommend more firmly the removal of the roof, notwithstanding the appellant’s reluctance to take that course in 1984. In hindsight, that would probably have been a better option.
So that if the appeal is disposed of upon the basis of the views which I have reached, the learned trial judge will have to deal with the issues arising under the Limitation of Actions Act and the difficult issues concerning quantification of damage.
I would allow the appeal and quash the order dismissing the plaintiff’s claim. In lieu of that order, I would substitute an order that, subject to the grant of an extension of time for the commencement of the proceedings pursuant to the Limitation of Actions Act 1936, the plaintiff recover against the defendant damages to be assessed. As well, I would order that the matter be referred back for further hearing before the learned trial judge in accordance with these reasons, in particular for him to hear and determine the issues arising under the Limitation of Actions Act 1936, and if those issues are resolved in favour of the plaintiff, to assess the damages payable by the defendant.
MARTIN J. I agree with the orders proposed by Perry J and with his reasons.

JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT

1. See Brooking on Building Contracts (3rd Ed 1995) (Butterworths) paras [17.1] and [17.11].

State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306 per Kirby J at 321.
De Vries v Australian National Railways Commission (1993) 177 CLR 472 per Brennan, Gaudron and McHugh JJ at 479.
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (supra) at 321.

[1999] SASC 183

13 May 1999