Elsmore v Dundowran Blue Metal Quarries Pty Ltd

[2013] QCAT 269

CITATION: Elsmore v Dundowran Blue Metal Quarries Pty Ltd [2013] QCAT 269

PARTIES:	Mark Elsmore (Applicant)
v
Dundowran Blue Metal Quarries Pty Ltd (Respondent)

APPLICATION NUMBER: BDL127 – 12

MATTER TYPE: Building matters

HEARING DATE: 2 May 2013

HEARD AT: Hervey Bay

DECISION OF: John Milburn, Member

DELIVERED ON: 19 June 2013

DELIVERED AT: Hervey Bay

ORDERS MADE:

1.    The Applicant’s application is dismissed.

2.    Mark Elsmore is ordered to pay Dundowran Blue Metal Quarries Pty Ltd the sum of $3729.70.

CATCHWORDS: BUILDING MATTERS - Claim for compensation as result of the supply of alleged faulty concrete

APPEARANCES and REPRESENTATION (if any):

APPLICANT: In person

RESPONDENT: Dundowran Blue Metal Quarries Pty Ltd represented by Ian Ridoutt

REASONS FOR DECISION

1. Mr Elsmore was contracted to build a concrete path and driveway to a residence[1] he constructed for a client.  The residence was directly opposite where Mr Elsmore lives.

   [1]        Situated at Louise Street, Burrum Heads

2. Mr Elsmore employed a concreter, Danny Millane, to lay and finish the concrete.  He bought the concrete from the Dundowran Quarries.

3. The concrete cracked.  It was replaced.  Mr Elsmore brought this application alleging the concrete supplied by Dundowran Quarries did not comply with certain specifications.  He seeks an order for compensation. Dundowran Quarries seeks an order for payment of its outstanding invoice issued to Mr Elsmore.

4. In support of his claim, Mr Elsmore engaged Soonlai Leong, a consulting engineer from VDM Consulting, Hervey Bay.

5. In his report,[2] Mr Leong noted numerous cracks on the driveway and footpath slabs.  He concluded that the crack patterns and early cracking “indicate that the most probable cause of the cracking was due to drying shrinkage[3].  This shrinkage occurs when there is a volumetric reduction of the slab when excess water needed to hydrate the cement, leaves the hardened concrete after setting has occurred."  He continued, "factors that influence drying shrinkage include the concrete mix, water content of the mix, cement content, compaction, weather and curing conditions”.

   [2]        A single page report dated 23 November 2012

   [3]        During the course of the hearing, Leong said drying shrinkage is the same as plastic shrinkage.

6. Mr Leong did not state specifically that the concrete itself was faulty[4].

   [4]        Either in his written report or during the provision of oral evidence at the hearing.

7. Before replacing the concrete, Mr Elsmore had it tested.  He did so by taking core samples.  Mr Elsmore ordered 20 MPa[5] concrete and had four samples tested by Geotechnical Testing Services Pty Ltd[6].  The report writer[7] noted that "Core Compressive Strength” varied between 18.2 and 23.7 MPa and the "Corrected Compressive Strength” varied between 16.5 and 20.6 MPa.  Suncoast Concrete Testing[8] was engaged to test two samples and the report writer[9] concluded the strength of one sample to be 15.0 MPa and the other to be 19.5 MPa.

   [5]        The Pascal (Pa) is a basic management of strength.  Megapascal (1 MPa ≡ 1,000,000 Pa).

   [6]        Noosaville.

   [7]        J.J.Boykett signed the report dated 19 December 2011 as an "approved signatory".

   [8]        Kunda Park.

   [9]        Mick O'Keeffe in a one-page report dated 21 November 2011.

8. Given the results, Mr Elsmore argues that the concrete failed to reach the 20 MPa standard as ordered.

9. Ian Ridoutt represented Dundowran Quarries. Mr Ridoutt called structural engineer John Reid who referred to his 19 December 2012 report during his evidence. Mr Elsmore called Mr Leong to give evidence.  The tribunal found the evidence of the experts to be consistent.

10. Both Messrs Reid and Leong concluded that when testing concrete it is better to do so when the concrete is fresh by a process of compression rather than by taking core samples after the event.

11. Mr Reid wrote that, "once the concrete dries, it stops gaining strength, so the concrete in a typical driveway, which is only lightly compacted and is not kept wet at all, will fall short of the standard test specimens for compressive strength. ….  Thus the question of whether or not the concrete complies with Australian Standards[10] can only be judged by preparing and testing samples of the fresh concrete, either that actually delivered to a site (project testing) or regular samples of the same grade of concrete produced by the batch plant (production testing).  Compliance cannot be judged by testing core samples of the hardened concrete at a later date.  It is hardly surprising that the cores taken from the driveway at 17 Louise Drive did not have a compressive strength of 20 MPa, since they were representative of concrete placed on site, not carefully produced laboratory samples.  The accredited (Geotechnical Testing Services) core test results seen were, in fact, within the range I would expect to see for site samples at an early age, based on my experience of concrete usage."

    [10]        Standards Australia International Ltd is the copyright owner of the Australian Standards brand and standards developed by Standards Australia.

12. Mr Reid continued,[11] "When concrete is ordered by strength, such as 20 MPa, the strength referred to is the concrete potential strength, not the final strength in situ.  The potential strength (or Grade Strength, or Characteristic Strength) is measured by taking a careful sample of the fresh concrete in the prescribed manner, compacting it fully in standard cylindrical moulds and then keeping the resultant cylinders of concrete in tanks of water at 27°C (in Queensland).  The cylinders are removed from the water, measured, and tested for compressive strength at an age of 28 days, although some may be tested at earlier ages for particular purposes.” 

    [11]        At page 1.

13. The concrete was poured in stages, as cement trucks arrived.  In doing so, they would drive over the mesh used to support the next stage of the concrete. Mr Reid comments[12] "this is poor practice, in that the weight of the truck causes deformation of the mesh and the bedding material (both of which can make cracking problems worse) and can also cause some dislocation of the steel within the nearby fresh concrete.  The resulting deformations and shear planes can have a significant influence on the later formation of cracks, generally promoting more cracking than might otherwise have occurred.”

    [12]        At page 4.

14. In doing so, it is clear the trucks were pouring from the top of the driveway to the bottom, which although of moderate gradient is not the preferred option[13].

    [13]        Reid, at page 5.

15. It is possible that the concrete trucks deformed the steel mesh to the extent that it was eventually located too deeply in the concrete. Mr Reid states[14], that the steel mesh must be located in the top one third of the concrete thickness. One core sample located the steel at a depth of 81 mm from the concrete surface and another at 67 mm from the concrete surface.  In his oral evidence, Mr Leong said that to be effective in minimising cracking, the steel should be approximately 30 mm from the concrete surface.

    [14]        At page 4.

16. Mr Reid also gave evidence that an incorrect procedure might have been used when establishing control joint, in that steel mesh continued across joint lines, thereby exacerbating obvious cracking.  Hence, random cracking would have occurred in the original driveway, had the steel been left in place across joints, in spite of the joints provided[15].”

    [15]        Reid at page 4.

17. I am of the view that the concrete cracks were not symptomatic of a structural problem. I accept the evidence[16] of Mr Reid in this regard.

    [16]        Oral evidence given by Mr Reid at trial and by reference to his report at page 4.

18. One of the factors which may cause cracking in fresh concrete of any strength is the rate of evaporation of water from the concrete surface[17].  I accept from the evidence[18] that it is necessary to ensure an appropriate rate of evaporation from the concrete surface to avoid an incidence of cracking.  In his evidence concretor, Mr Millane, said that in this instance upon noticing surface cracking he applied Sika Film[19].  It was also referred to as a moisture retardant.

    [17]        Reid at page 2.

    [18]        Mr Reid at page 2.

    [19]        Sika Film was described at trial as a product that helps avoid concrete surface shrinkage.

19. Mr Reid suggests that Sika Film was not used properly.  It was sprayed onto the concrete and floated in.  He asserts that dissipation of the film by trowelling or floating would render it ineffective[20].

    [20]        at page 3.

20. Mr Elsmore suggests the problem came about as a result of the inexperience of the Dundowran Quarry duty batch operator. There is no evidence given to suggest this was a cause of any problems encountered.

21. It was not disputed that rain interfered with the concrete pour but conflicting evidence as to the extent and duration of the downpour. It appears that heavy rain fell during the early part of the pour.  If the added water content affected the potential strength of the concrete mix, this cannot be the responsibility of Dundowran Quarry.

22. Mr Elsmore bears the onus of proof in this matter.  I am not persuaded that problems encountered at the construction site came about as result of the product supplied by Dundowran Quarry. Mr Reid states "once the customer takes delivery of the fresh concrete, however, the way it is treated is out of the concrete producer’s control”[21].

    [21]        at page 1.

23. I find in favour of Dundowran Quarries.  I dismiss the Applicant’s application.  I order Elsmore pay to Dundowran Quarries an amount outstanding in the sum of $3729.70 as per invoice.  I make no order as to costs.  I make no other order.