New Norfolk Sports Centre Assoc Inc v Miley
[1987] TASSC 85
•16 April 1987
Serial No B15/1987
List "B"
COURT: SUPREME COURT OF TASMANIA
CITATION: New Norfolk Sports Centre Assoc Inc v Miley [1987] TASSC 85; B15/1987
PARTIES: NEW NORFOLK SPORTS CENTRE ASSOC INC
v
MILEY, George
COOPER, Byron K
FILE NO/S: 400/1981
DELIVERED ON: 16 April 1987
JUDGMENT OF: Cosgrove J
Judgment Number: B15/1987
Number of paragraphs: 77
Serial No B15/1987
List "B"
File No 400/1981
NEW NORFOLK SPORTS CENTRE ASSOC INC
v GEORGE MILEY & BYRON K COOPER
REASONS FOR JUDGMENT COSGROVE J
16 April 1987
At sometime in 1972 the plaintiff Association decided to construct a Sports Centre on land provided to it by the New Norfolk Council at or near Second Avenue, New Norfolk. The first defendant Mr Miley provided plans and specifications to the plaintiff Association on terms which are the subject of dispute in the pleadings and not fully revealed by the evidence. There is evidence that tenders were called and that the lowest tenderer was the defendant Byron K Cooper. Mr Miley was doubtful as to Mr Cooper's ability to carry out the contract and advised the Association's committee to that effect. Representatives of the Association discussed the matter with Mr Cooper and in the result, Mr Cooper entered into a contract with the plaintiff dated 24 October 1973 for the erection of the building described in the plans.
The terms of the contract were not, as a matter of pleading relied upon, but it was tendered. The primary obligation of the builder was expressed as follows:
"The builder shall carry out and complete the works in accordance with this contract to the reasonable satisfaction of the architect."
Apparently because Mr Cooper's experience (or lack of it) was a matter of some concern, the committee decided that professional supervision was called for and Mr Miley was engaged to supervise the work. I note that at the time Mr Miley was a Government Architect for the region in which New Norfolk lay.
In due course construction of the building commenced. Excavation of the site was carried out prior to the site being handed over to Mr Cooper. Besides the supervision of Mr Miley, Mr Craw, a member of the plaintiff's committee, who lived close by the Sports Centre and who had some knowledge of building procedures, inspected the works on a daily or twice daily basis throughout construction. Progress payments were authorised by Mr Miley and paid somewhat tardily by the plaintiff Association.
Although the Sports Centre alleges that a certificate of practical completion was issued by Mr Miley in about February 1976, the semi–final payment under the contract was made to Mr Cooper on 13 May 1975 and I therefore infer that the certificate had been issued by that date. The final payment was made on 11 March 1976. I note that the minutes of 26 March 1975 record an intention to request the architect to make his "final inspection". However there was no evidence of the issue of a final certificate under the contract. Occupation of the building had occurred as early as March 1975. Mr Craw, who gave evidence on Mr Cooper's behalf, expressed complete satisfaction with the work of Mr Cooper, and said that at the time the final payment was made all members of the committee were happy with Mr Cooper's work, and that a number of those persons who were members of the committee at the time of the completion of the work refused to lend support to the action against Mr Cooper.
Not long after the occupation of the building by the Association, trouble began to be experienced with the floor of the basketball stadium. It was observed to be "buckling" or "cupping" and it provided a surface which created difficulties for players. Under floor packing was said to be required. The mezzanine floor between the squash and basketball courts was also buckling.
In November 1974 a drainage problem was noted along the northern wall of the building and Mr Miley suggested that a drain be dug along the boundary of the cemetery, which adjoined the site. The drain was never dug.
Further problems were encountered with the block work walls falling over in the course of construction. The providers of the blocks, Besser Concrete were consulted and advised that there was nothing unusual in that.
It is noteworthy that all of these problems occurred before Mr Cooper was paid in full and before the certificate of practical completion was given, and yet they do not seem to have been attributed to any defect in the work done by Mr Cooper. The annual report of the Association for 1974/75 reports as follows:
"The building was completed during the year and has proved satisfactory in most respects. At one time there was trouble with some sections of the walls this was rectified by adding support to both inside and outside each section.
The mezzanine floor did not appear to be very suitable but Mr Craw came up with a solution that has proved very satisfactory.
The main floor has proved to be one of our main problems. It is really the centre and purpose of the building. We have had trouble with the floor buckling and producing a ripple effect on the floor. Also some of the supporting piers have moved. The cause of this appears to be excessive moisture under the floor. Much more ventilation has been provided and with the adjustment of some of the piers it is hoped that this will be overcome. Of course we did have a very wet winter which was another factor that did not help the settling of the floor. The use the Centre has been put to has been very pleasing. The hall is occupied fully on week nights and a reasonable use is made of it during the day time . . . . The squash courts are used a very fair amount of the time in the evenings and I hope a further use can be made again in the day time. Our main problem at the moment is financial."
At sometime after occupation of the building, probably early in 1976, a Mr Menzie was engaged to supervise a RED Scheme for the provision of seating along the north and south walls of the basketball court. He did so. The seating was fixed to the wall and to the floor. He was also asked to examine the cause of the "buckling" of the floor. He entered the under floor space and found such an accumulation of water that he was obliged to wear oilskins to work in there. The floor itself was excessively wet, and there had been some movement of bearers off the piers, that is to say he found that some bearers were not wholly in contact with the piers. He made saw cuts down the length of the floor boards in the centre of the floor and the saw cuts closed up rapidly. He took out floor boards on the northern and southern sides of the building and the gaps thereby created closed up quickly although not of course fully. He packed some but not all of the spaces between the bearers and the piers in the centre of the floor. He also cut out six entry spaces in the floor and into these entry spaces were placed high powered industrial heaters secured from ANM. These heaters were operated 24 hours a day for at least a week and were so powerful as to cause the operation to be stopped because of the excessive cost of electricity. The condition of the boards was described by Mr Craw and Mr Menzie as being so wet that water came away on the fingers when the boards were touched underneath. Difficulty was also being experienced in the foyer area where the floor was buckling. Apparently the squash courts were operating reasonably well at the time.
In about December 1979 a Mr Corney who was, and is a building supervisor with the Department of Housing and Construction was asked by Mr Miley to examine the floor (Mr Miley was then still the District Architect for this Department). Mr Corney made two inspections, one in the north–east corner and one in the south–west corner and used a powerful torch to examine what was visible from those points. He reported, (1) that many of the piers were being supported by the bearers, (2) that some piers were not vertical, (3) that some of the bearers were eccentric on the piers, (4) some bearers were not tied to the piers, (5) in some cases the mortar joint between the pier and the footing had powdered, (6) there was some packing lying on the ground, and (7) some bearers were not in contact with the piers.
He formed the view that the main floor would eventually collapse, ie become unusable, due to failure of the mortar joints at the bottom of the block piers and to the absence of a tie between the piers and the footings. A Mr Dishington who was a design engineer employed by ANM also examined the building in October 1979. Further reference will be made later to the evidence written and oral, of Messsrs. Corney and Dishington.
By 7 November 1979 quotes had been obtained for some (unspecified) work on the basketball stadium floor. Then advice was sought from a firm of architects. Eventually Mr Corney prepared some plans and tender documents. Tenders were called. In December 1980 the greater part of the floor was removed by volunteer workers and the successful tenderer, a Mr Clark, commenced reconstruction work shortly thereafter. The reconstruction involved the creation of a very heavy and rigid sub–structure and floor, with the piers forming an integral part of continuous concrete beams running the whole length of the flooring, much larger bearers than those previously installed and thicker flooring. The bearers were bolted to the piers and the concrete beams. Ventilation was increased. However, by 11 February 1981 the Committee was receiving reports of "shrunken" floorboards. The suppliers of the boards were asked and agreed to rectify the surface at the end of winter. In early July and August 1981 the suppliers (Risbys) carried out moisture tests under the floor, on floorboards, joists and bearers, and on 4 August 1981 reported that the timbers had taken up moisture from below after installation. The boards when installed were assessed to contain moisture in the range 10 – 12% but by the time of the tests contained 16 – 18% moisture. Risbys regarded the latter percentage as the "equilibrium moisture content under the building". They expressed the view that the timbers had expanded, and that expansion had created the uneven surface. They declined liability. The committee appears to have accepted this. By August 1981 the moisture problem was not new to them, for in March vinyl tiles were reported to be lifting in the foyer area, in June discussions were held with the contractor Mr Clark regarding ventilation and drainage, in July Messrs Clark and Dishington recommended the provision of 14 larger vents on the eastern end of the building (ie the basketball end) and drainage works on the outside of that wall. The minutes of the 12 August 1981 record another inspection by Messrs Clark and Dishington in connection with drainage under the building. The tiles in the foyer area were to be nailed down!! (This was subsequently abandoned). By 16 September 1981 after yet another inspection the proposals for drainage were changed end a drain along the northern side of the building (similar to that suggested by Mr Miley in 1974) was mooted. So far as I can ascertain, the drain has never been dug, and the stadium floor continues to be unsatisfactory.
Meanwhile in February 1981, legal advice was obtained and in March of that year, the writ commencing this action was issued.
The statement of claim in its present form alleges that Mr Miley was in breach of his agreement with the plaintiff to design and supervise in that he failed to exercise reasonable skill, care and diligence in both areas. A similar complaint is made about the work of the defendant Mr Cooper except of course that he is not alleged to be responsible for design, and the faults alleged against him are construction faults. It is alleged that the faults of both Mr Miley and Mr Cooper involved the Association in extra expense in repair work and will involve it in future expense, and that in addition some monetary loss has been sustained. The breaches of contract and the losses have been fairly extensively particularised. Apart from some relatively minor claims the major breaches of contract alleged can be divided up into two areas, (a) the floor and, (b) the walls.
As the central allegations of breach and loss concern the floor, it is convenient to start with that. It would seem to be common ground that the performance of the floor was unsatisfactory and therefore the floor may be said to have "failed", although there is an area of dispute as to the extent of the "failure". For convenience I will refer to the floor as having failed although that does not mean that I accept that it was liable to collapse or that it required complete replacement.
Essentially the plaintiff's case is that the floor failed because it was designed with insufficient strength and rigidity. The defendant's case is that the floor failed because of moisture in the under floor area which could not have been anticipated. It is noteworthy that there is no allegation that Mr Miley or Mr Cooper ought to have anticipated excessive moisture in that area, although it is alleged that Mr Miley failed to provide proper external surface drainage, and it is alleged that Mr Cooper failed to ventilate the building properly.
Before entering upon an examination of the opinions put forward by the respective experts called on behalf of the plaintiff and defendant, it is useful to examine the state of the factual evidence. It appears that at no stage from the time of completion of and payment for the building until the issue of the writ, was any complaint made to either Mr Miley or Mr Cooper. No defect was drawn to the attention of either, and neither was given an opportunity to inspect the building and express an opinion as to the cause of the unsatisfactory performance of the floor, or, for that matter, of the walls and other alleged problem areas. The plaintiff did not call anybody to give evidence as to the actual construction of the building, and none of its witnesses was on the committee at the time of construction. As I have said the only member of the committee at that time who was called to give evidence was Mr Craw who was called by Mr Cooper, and who in the course of his daily inspections observed no defects in construction. The main witnesses of tact for the plaintiff were Messrs Wilton and Hanlon who came onto the committee after the building had been completed and who were the prime movers in having the floor replaced and presumably in the decision to commence this action. They gave evidence of observations under the floor of the building up to and including the removal of the floor, and in the case of Mr Wilton of an inspection under the floor of the building during the hearing of the action.
During the period up to the removal of the floor and its reconstruction no notes were taken by Messrs Hanlon and Wilton nor were any photographs taken. The first photographs to be tendered in evidence were taken by Mr Spratt during the period between the removal of the floor and construction of the existing floor. The result is not only that the defendants had no opportunity to examine the defects as to which Mr Wilton and Mr Hanlon deposed, but also that Messrs Wilton and Hanlon were giving evidence of un-noted observations made between 7 and 10 years ago. Evidence of this nature calls for careful scrutiny and I will discuss it later.
Another difficulty arises from the fact that Mr Miley did not give evidence. When the matter was called on for hearing Mr Miley advised me that he was bankrupt, that he had been unable to obtain legal representation, that he felt totally unfitted to conduct his own defence, and was therefore withdrawing from any part of the hearing.
Although as I have said the contractual relationship between the plaintiff Association and Mr Miley is a matter for some dispute on the pleadings and not established in any detail in the evidence, it seems a fair inference from such evidence as there is that Mr Miley was merely providing plans of a somewhat similar building with modifications and with some engineering assistance. The fee which he charged was very low for this type of building. Nevertheless I am not in any doubt that having taken on the duty of providing plans and specifications he was obliged to exercise ordinary professional care and skill in relation to those documents, and that having accepted the role of supervisor he was obliged to supervise in a proper professional way. To make out the first part of its case against Mr Miley therefore it was incumbent upon the plaintiff Association to prove that the design was inadequate to meet with ordinary stresses and ordinary conditions. The whole case has been fought upon the basis that excessive moisture would not be regarded as an ordinary condition but as an extraordinary one. In saying this I by no means overlook the fact that complaints are made against Mr Miley that he should have provided some drainage.
The question of supervision will arise when the case against Mr Cooper is being discussed.
The first defect in the performance of the floor which became noticeable was cupping of the floorboards, and this occurred at a very early stage in the use of the floor. Cupping is a warping of the boards so that the edges tend to turn up and each board presents a slight concave appearance on its upper surface across its width. So far as the resolution of this case is concerned cupping can in my opinion be put entirely to one side. I say this because the experts agree that cupping is caused by a difference in moisture content from bottom to top of the boards, that is to say, by the boards having a higher moisture content at the bottom surface than at the top surface. This is not a design fault, but a fault attributable to the extraordinary moisture content in the sub–floor area. The existing floor which consists of thicker boards, and is extremely rigidly fixed cupped very shortly after installation, and the moisture content of the sub–floor space which caused the cupping is still present.
The next fault that was noticed was a poor bounce of the basketball, said to be mainly in the area around the goal posts and in the centre of the floor where players tend to congregate, and where the live load placed on the floor may be expected to be highest. The poor bounce was attributed to a looseness in the floor as a whole, which caused an undulating effect in the surface of the boards. This in turn was attributed to a failure in the mortar joints between the bottom of the piers and the footings and movement of the bearers and joists. Overall this could be described as a lack of rigidity in the floor. It is this lack of rigidity which became the focus of attention during the trial, Mr Spratt, the engineer called by the plaintiff, attributed this lack of rigidity to errors of design while Mr Hudson the architect called by the defendant Mr Cooper, regarded it as a consequence of expansion of water–logged floorboards which when checked by the walls exerted an upwards pull on the joists and bearers so that the bearers in turn pulled the piers off the footings. He also expressed the view that excessive moisture around the mortar joint between the piers and footings would have leached cement out of that joint and weakened it. What seems to be common ground is that some force has caused the piers to lift off the footings. Once this occurred there would be movement in the floor as a whole and the piers would tend to hammer on the footings further disintegrating the mortar joint and reducing rigidity.
It is not necessary for me to accept either theory as established. What I have to decide is whether the plaintiff has made good its case that the design of the floor led to its "failure". The core of Mr Spratt's thesis was that there was excessive deflection in the floor due to the use of inadequately sized bearers and joists and that this deflection was not adequately restrained, The bearers and joists specified and used were both 4 inches by 3 inches. Mr Spratt said that these were both inadequate in depth and were rendered even less adequate by notching. The bearers and joists were both 16 feet in length and the bearers were supported on piers at five foot spaces. The joists were 18 inches apart. The lapping of the bearers and joists was not staggered.
Mr Spratt took as his starting point the proposition that this was a "very heavily loaded building". He then went to the Australian Standard Loading Code CA34, Part 1 – 1969 which gives in appendix B minimum floor live loads. He selected as appropriate the load recommended for "drill halls" which was 100 lb per square foot. He ignored the provisions relating to "indoor sporting facilities – areas for participants only" which was given at 40 lb per square foot. When this was pointed out to him he referred to and relied upon note 1 to the appendix which provides as follows:
"Engineers, architects and building owners are advised to give special thought to the possibility of later changes of occupancy involving loading heavier than was originally contemplated."
An architect designing a building would of course be well advised to pay attention to the note, but there is no evidence that Mr Miley was given any indication that there might be a later change of occupancy, and there is in fact no evidence that the basketball stadium, apart from one or two isolated occasions, has ever been used for anything other than playing basketball. As a starting point of an explanation of failure, the adoption of 100 lb per square foot as the load placed on the court is not convincing. I pause to point out that, although there are many basketball stadia in the southern area of Tasmania, some of them designed by Mr Miley, I was given no evidence of the actual live loading placed on a basketball court by participants. From the live loading code Mr Spratt proceeded to the Building Amendments Regulations statutory rule No 238 of 1972 which provides in clause 7 as follows:
"Regulation 270 of the Principal Regulations is rescinded and the following regulation is substituted therefor:
'270 all structural timbers in a building shall comply with–
(a) at least the dimensions recommended in Australian Standard CA38 – 1971, Light Timber Framing Code;
(b) at least the dimensions recommended in Australian Standard 098–1971, Seasoned Size–Matched Framing Timber (including Finger–Jointed Pieces) from South Eastern Australian Hardwoods; or
(c) at least the dimensions shown in the fourth schedule."
The Light Timber Framing Code does not provide any calculations for floors expected to carry a live load of any more than 60 lb per square foot. Mr Spratt conceded that the bearer and joist sizes specified and used in the building were adequate for a live load of 60 lb per square foot as recommended in that Code. But he said, the appropriate table to consider was the Fourth Schedule of the Building Regulations which provides that where bearers are made of unseasoned standard grade timbers the appropriate size for a 4 foot unsupported span was 4" x 3" and for a 6 foot unsupported span 5" x 3". As the timbers used in this building were not unseasoned standard grade timbers and did not have unsupported spans and as no size is provided for continuous bearers spanning 5 feet or 4' 4", which latter distance was accepted by Mr Spratt as the appropriate span to apply to the Light Timber Framing Code, the schedule to the Building Regulations is of uncertain value.
There is however a document which recommends bearer sizes for loadings of 100 lb per square foot using standard grade Tasmanian timber and that was put in evidence as D24. Its title is "Building Frames: Timbers and Sizes, Pamphlet No 112 Commonwealth Scientific and Industrial Research Organization, Australia Melbourne 1952". That publication provides tables for two different standards of construction and the standards are spelt out in a paragraph at page 8 in these terms:
"The standard of performance for a building has been customarily stated in such general and vague terms as that it must be 'reasonably' rigid, must not vibrate 'unduly', and must not deflect 'too much', but the precise interpretation of these descriptive words is not possible. In this publication two standards of construction are dealt with, the first corresponding to the highest standard in normal demand and fixed by an examination of existing buildings and building regulations, and the second, safe but less rigid than the first, corresponding to the lowest standard likely to be the concern of an architect. These two standards have been examined and translated into numerical terms, thus fixing them precisely, and they form the principal division of the pamphlet."
It may be doubted whether the standard of precision reached is quite what the authors anticipated, but we must make do with what we have. The two classes of construction are subsequently further defined in this way.
"Class 1 –equivalent to first–class dwellings with an average deflection of members 1360 of their span.
Glass 2 – suitable for temporary or second–class buildings, safe but not so rigid as Class 1 having an average deflection of members 1180 of their span.
The tables then go on to differentiate between bearers supported at ends only and bearers continuous over two or more spans. This publication also provides a table of minimum live loads per square foot which is taken from the Code for Structural Steel in Building. This table requires that the minimum live load for dwellings should be 40 lb per square foot; for residential including hospitals and hotels 40 lb per square foot; for classrooms and offices 60 lb per square foot; and for places of public assembly (presumably not otherwise defined) 100 lb per square foot. Now for bearers continuous over two or more spans bearing a live load of 60 lb per square foot, class 1 construction, for a five foot span and a five foot spacing requires Tasmanian timbers to be 4" x 2", ie less than that specified. Where the same conditions apply but the live load is 100 lb per square foot the bearers are recommended to be 5" x 3", ie larger than specified. For class 1 construction bearing a live load of 100 lb per square foot, five foot span and five foot spacing but supported at ends only, the recommended size is 5" x 3". So whether the bearers are supported at ends only, or are continuous the recommended size for class 1 construction with a live load of 100lb per square foot and a span of five feet is 5"x 3".
For class 2 construction with a span of five feet and a spacing of five feet the recommended size with a live load of 60 lb per square foot supported at ends only is 4" x 2". For class 2 construction with a live load of 100 lb per square foot supported at ends only with a five foot span and five foot spacing the recommended size is 4" x 3". Applying the same conditions with bearers continuous over two or more spans the recommended size is 4" x 3". The spans in this building are continuous in that they commence on pier one, pass over piers two and three and land on pier four. Mr Spratt contended that they should be regarded as single span bearers or bearers supported at ends only because of the notching. In doing so he misinterpreted the Light Timber Framing Code par3.7.1, subpar(g) and his conclusion cannot be supported. However in view of the fact that the same size bearers are recommended in the relevant cases for continuous or unsupported spans the error is of no significance. What is of significance is that the authors do not differentiate between class 1 and class 2 construction according to weight per square foot (which is given as a variable for both classes), but according to use of the building which is proposed and the standard required. Mr Spratt made no attempt to provide a basis upon which it could be determined whether this building ought to be in class 1 or class 2. Mr Hudson on the other hand said that class 1 was for buildings required to be so rigid as to prevent even the slightest cracks in ceiling plaster, and class 2 was appropriate for buildings of the type equivalent to a sports centre. The publication D24, while providing two standards of construction deals only with safe buildings and therefore one assumes buildings not liable to failure. The vibration or deflection experienced in class 2 construction is not such as to require the condemnation of the building but such as might not be tolerated in a very high standard building. Furthermore the two standards of construction are not exhaustive and obviously there is room for considerable variations between the highest and the lowest standard. The total deflection in a bearer with a deflection of 1 over 180 and a five foot span is one third of an inch. The total deflection of a similar bearer with a deflection of 1 over 360 is one sixth of an inch. One of the exhibits suggests a basketball court ought not to be totally rigid, as concrete is, but to have some spring. Possibly its deflection ought to be somewhere between class 1 and class 2, but the evidence does not permit me to say that class 2 construction would be inadequate for a basketball court.
I am therefore left in a situation that I am unable to accept Mr Spratt's conclusion that excessive deflection was the cause of the failure of this floor because, (a) I do not accept that the floor has ever been subjected to a live load of 100 lb per square foot except perhaps on isolated occasions and (2) I do not accept that the contemplated and actual use of the building required that it be class 1 construction with a deflection of no more than 1 over 360 and (3) the bearers and joists are within the recommended sizes both of the CSIRO publication D24 and the Light Timber Framing Code for anything less than a combination of 100 lb per square foot live load and class 1 construction, and depending upon the meaning of the word "span" (which was never satisfactorily defined by text Book reference or otherwise) may be within the sizes recommended for that combination.
For the same reason, I reject the similar conclusion apparently expressed by Mr Dishington in the draft of the letter P34 signed by Mr Scholes, who was not called. Mr Dishington's oral evidence took the matter no further.
The documents cited also lead quite firmly to the conclusion that Mr Miley has not been shown to be at fault in his specification of timber sizes. The allegations cited in par12(a)(v), (vii) and (viii) are not made out.
The essence of the criticism of Mr Miley's design is that he designed a floor which rested on concrete footings, when he should have designed a floor which was tied to footings. This allegation in turn depends upon the assertion that, realistically, heavy loading and consequent deflection ought to have been anticipated and guarded against. I do not accept the assertion and therefore reject the criticism. It follows that I do not find to be proved the allegations in par12(a) (ii) and (iii). The criticisms implicit therein are based on a belief that the piers would be subject to heavy loadings and lateral pressure. So far as the basketball stadium floor is concerned, the case as pleaded against Mr Miley on the score of design fails.
I do find the mortar specification to have been contrary to the blockwork code and inadequate. But I am not satisfied that Mr Cooper followed the specification. Mr Hudson thought that the mortar actually used was adequate.
So far as drainage is concerned, the minute of 25 July 1972 shows that Mr Miley was asked only "to draw plans and provide specifications". I have already referred to the fee as an indication that the parties probably did not expect a total design from him. The minute of 30 January 1973 shows that the Association was to sub–contract excavation, and I was informed that it did. When Mr Miley recommended the drain on the northern boundary, it never seems to have been thought that it was his responsibility to design it as part of his services, and it seems clear that both parties regarded the decision as to whether it was provided to be within the Association's responsibility. In those circumstances, I consider that Mr Miley's duty was no higher than advisory, that he fulfilled that duty or at least has not been shown to be in breach of it.
The ventilation, was I think, inadequate but it has not been pleaded against Mr Miley. Nor is there any allegation made against Mr Miley in respect of the eccentricity of the bearers on the piers and the staggering of lap joints of both bearers and joists. However, as those matters are relevant in the case against Mr Cooper, it may be convenient to make some mention of them at this point. The plans show the piers in straight lines. That being so, the bearers must be eccentric unless their ends are cut back and tied or joined in some way. The specification provides only that "Bearers to be 4" x 3", spaced as shown and jointed only over bearings". I am not sure what meaning the word "jointed" was meant to convey. In fact the bearers were lapped, which meant that they were eccentric. Mr Miley must have either intended or accepted this. The likelihood must be that he intended it. The plans and specifications make no mention of staggering laps and I infer on all the evidence, that Mr Miley did not require it.
I propose to turn now to the case against Mr Cooper in respect of the basketball stadium floor. In order to do so, it is necessary to canvass the evidence as to the condition of the floor at the time when its construction was completed.
The only direct evidence was that of Mr Cooper himself, who said that, except in one instance, he followed the design documents and Mr Miley's instructions and that there was no defect in his workmanship. There is some indirect evidence, in that an inference of proper workmanship may be drawn from the fact both Mr Miley and Mr Craw approved the work. The other evidence comes from Mr Menzie, Mr Hanlon, Mr Wilton, Mr Corney, Mr Dishington, Mr Spratt, Mr Hudson, Mr Craw and Mr Maher. The essence in this connection, of the evidence of the last three gentlemen, is that Mr Hudson and Mr Craw depose to seeing water or signs of the presence of water under the floor, and Mr Maher who was in charge of the cemetery which was adjacent to and uphill from the building gave evidence that graves tended to fill quite quickly up to a depth of 3 feet or so. Mr Menzie gave some rather dramatic evidence to the same effect. Mr Spratt first saw the building after the main section of the floor had been removed, but he produced some valuable photographs. Mr Wilton's evidence of his inspection during the trial was, in my opinion, for a number of reasons which need not be specified, extremely unreliable. All of the evidence suffers, to some extent, from the defects earlier outlined, but Messrs Corney and Dishington had the benefit of notes (Mr Corney) and their roughly contemporaneous reports. It may be useful to tabulate the evidence in very short form.
OBSERVATIONS BEFORE FLOOR TAKEN UP
Mr Hanlon
Mr Wilton
Mr Corney
Mr Dishington
Mr Menzie
Moisture under floor (basketball only not including foyer)
Nil (dry and dusty
Generally dry
Air damp
Dry
Very wet, water in pools
Mortar, piers separated from footings
Hanging 4 – 5 separated 30
Variously 20% of 100
10 – 15% Right off - some
25%
Some
None
Piers off vertical
20% up 15% off
30%
Some
Bearers eccentric to the point o protruding over piers
Some
20% variously a few
A few
None
Bearers not touching piers
Variously 30% 30 – 40
Some
Some
Tie rods not through bearer
Nil
Some
Packing on floor
A lot
75%
Some
No packing noticed
Gaps in centre of piers
Some
Variously
Nil
Skew Nailing
Often Single
Mostly Single
Joists not touching bearers
10%
Some moved off
No nailing of bearers
Some
Most
Pier cores
50% made of mortar
Very few had no concrete
Ventilation
Some inner vents not there
No vents on interior sleeve
Vents both sleeves
Inner vents there
Bearers
10 - 15
Bounce of ball
Some dead spots
Dead spots some areas 50% off (otherwise regulations)
Footings
Odd shapes
2" – 8" deep
Not square
I have already outlined the circumstances which led me to scrutinize with some care the evidence of Messrs Hanlon and Wilton. Some parts of Mr Wilton's evidence I reject out of hand. By way of example I reject his evidence that he saw timbers nailed onto piers, and that the floor boards were completely dry. There are other examples which it would be tedious to list. Mr Hanlon, too, reported having seen things which he could not have seen. Their evidence contrasts with their contemporaneous actions and reports. I think that they both found themselves in an unusual situation, that their memories were affected by their understanding of Mr Spratt's explanation and that they were (Mr Hanlon to a lesser extent than Mr Wilton) victims of the well known process of reconstruction, rationalisation and exaggeration. I would be hesitant to rely on their uncorroborated evidence and to the extent that Mr Hudson based his theory on Mr Wilton's evidence I am sceptical of it.
In my opinion, the conclusion that the under floor space is and always has been damp, and that the timbers were and are damp, and have been very wet is inescapable. As to the rest, I feel that I can rely only on Mr Corney's evidence, (although I accept Mr Menzie's as to the dampness and, because and to the extent that it is corroborated, the vents on the inner sleeves of the walls). Mr Cooper admitted that there may have been some inner vents missing and I accept that too.
I note that the movement in the floor was first noticed in about mid 1975. The minutes of the Annual General Meeting (in about September 1975) record floor buckling and movement of piers attributed to excessive moisture.
I also note that photograph P6 – 9 which shows a row of piers, bearers and joists near the seating along a wall, where all but one of the piers are vertical, they are all properly formed, the bearers are eccentric but straight, and the joists are in position. This is an area which, because of the seating, is relatively firmly fixed, which is out of the main area of play, and (importantly) which was not much interfered with in the course of taking up the floor. The photograph was taken before rebuilding commenced. I find that this is the best independent evidence that I have of the method of construction and of workmanship. I infer that the rest of the floor was probably in a similar condition when laid. If so, the workmanship was at least in those respects satisfactory. However, by the time that Mr Corney made his inspection in late 1979, a considerable number of the mortar joints between pier and footing had disintegrated, piers had slipped off vertical, some bearers had moved on piers and packing had fall en out (there is evidence that others beside Mr Menzie had packed the floor from time to time). The expert evidence is unanimous that movement in the floor structure had caused the breakage of pier–footing joints – Mr Corney said due to shrinkage of timbers, Mr Spratt said "end rotation" and Mr Hudson said expansion of floor boards. The movement would explain the leaning piers and loose packing. The crucial question is whether the movement was caused by the design or construction of the floor. In my opinion it was not, or at least, is not shown to have been so caused. I do not make a positive finding that it was caused precisely in the way Mr Hudson demonstrated, but I would reject any explanation that exonerated the extraordinary amount of moisture in the timbers, which is still causing trouble. Nor would I rule out as aggravating factors some of the remedial measures taken by the Association. I think the pounding on the mortar joints probably occurred where the bearers were comparatively firmly fixed to the piers so as to enable the bearers to lift the piers, and that there must have been a distortion of the sub–floor structure for that to occur. That process had begun in some areas by 1976, in that bearers were seen by Mr Menzie to be lifting and packing was required although the base joints were not seen by him to be affected. The movement was then causing or was caused by springiness in the floor surface. The continued vibration would increase the number of defects.
In such a picture, the fact that a few tie–rods did not pass through bearers is irrelevant. As Mr Hudson said, the tie–rods were, in the overall design, of little importance. The eccentricity of the bearers on the piers might aggravate the problem but did not cause it. My reasoning is as follows:–
1I have no satisfactory evidence that the flooring structure as a whole was so designed or constructed as to distort under normal conditions and the actual live loading applied to it. In fact, the evidence (including the Codes) suggests that it would not.
2The floor must have distorted in order to pull the piers off the footings.
3There is evidence of extraordinary and unacceptable under–floor moisture, end radical remedial actions.
4I have no satisfactory explanation of distortion unconnected with the moisture levels.
5I have an explanation based on the moisture levels which may be correct.
6I am unable to conclude that errors in design or construction caused "the failure".
I turn to the Statement of Claim (par14, subpar(1)).
"(1) Failed to construct adequate footings".
I am not satisfied that the footings were inadequate, although some may have been a departure from specification. The footings, in my opinion, played no part in the failure of the floor.
"(2)Provided inadequate mortar bed between the bearer pier blockwork and the concrete foundation."
The specification was as I have said, inadequate. I can make no positive finding as to the type of mortar used, but it would not have been wrong for Mr Cooper to follow the specification. In any event, the strongest mortar would have done nothing to save the floor.
"(4)Failed to fill the hollow bearer piers fully or at all with concrete and otherwise to construct the bearer piers in a proper workmanlike manner."
I find the construction of the piers to have been adequate.
"(5) Failed to connect bearers and joists where the same lapped."
This allegation is not established.
"(6) Failed to stagger the laps to joists on piers."
Staggering was not specified and its absence was approved by the architect.
"(7) Sited bearers off centre on the piers."
Eccentric loading was intended and approved. No breach is made out.
"(8) Failed to carry the tie–rod from the piers into the concrete footing."
Not specified. No breach made out.
"(9) Notched bearers and joists thereby weakening same."
Notching to a reasonable degree was permissible. The work was approved by the architect. I reject the evidence of excessive notching. No breach has been made out.
"(10) Levelled bearers with loose lagging which fell out."
This allegation has not been established.
"(15) Failed to ventilate the building as specified."
I think this allegation is made out as to the vents on the inner sleeves. There must be an allowance for it. In the general history of the floor failure it is of little significance. It was no breach to follow the faulty plan as to the positioning of the vents, but it was a breach to reduce the number of through vents.
I turn now to the walls.
The allegations against Mr Miley in this respect are set out in the following sub-paragraphs of par12 of the Statement of Claim:
"iv)Exceeded the slenderness ratio allowed by the SAA Code for Concrete Block Masonry CA32–1967 for the Besser infill walls between steel frames.
vi)Failed to provide for the infill Besser walls to be tied to the external frame."
Paragraph iv) is expressed in technical terms but I understand it to mean that the plans and specifications did not provide sufficient support for the walls. Paragraph vi) means much the same thing. Similar allegations are made against Mr Cooper.
Mr Spratt divided the walls into three types and that classification was followed by Mr Hudson.
So far as the type 1 walls are concerned, the design was in my opinion, adequate. Unfortunately, Mr Cooper administered the contract poorly with the result that the tie beam at the top of walls was installed before the block work went up. Instead of dismantling the tie beam and replacing it after completion of the block work, or extending the tie beam downward, he obtained permission from Mr Miley to substitute side steel ties for top ties. The variation was put to the Association by Mr Miley as an "extra"! The Association approved. It did not work. The walls still require to be tied at the top. I find that a reasonable architect, acting responsibly, would not have agreed to the variation. The defect caused by Mr Cooper still exists. This was not an architect's variation, but an attempt to cover up a wrong construction procedure which should have been detected at an early stage and was not. I therefore hold both parties to be in breach and both are jointly and severally responsible for the provision of a satisfactory tie at the top of the block work.
The type 2 walls lack side restraint. This is a design defect and can be remedied by the provision of internal ties. Mr Miley alone must be held responsible for this.
The type 3 walls are defective because of lack of particularity in the design documents. They require a top beam and cavity ties. Mr Miley alone is responsible.
I turn now to No 2 Squash Court
The allegation against Mr Miley is that he failed to provide for an adequate joist landing and against Mr Cooper that he used inadequate bearers and joists.
Two regular squash players gave evidence. They have been playing on these courts since they were built. They said that they noticed a deterioration in the quality of the courts in the early years of this decade. The floor has become springy, can be pressed down in places, has "dead" spots and a slow bounce. Squash court No 2 is better than No 1.
It is not claimed that this floor is in danger of collapse. Although Mr Spratt gave evidence that the joist landing which is a bearer plate bolted to the walls might collapse because of metal fatigue in the bolts, I regard this as only a remote possibility which could easily be cured if necessary. There is evidence on both sides of excessive moisture in this area and there is some evidence of failure of the mortar joints between the piers and the footings. This would explain the gradual deterioration of the court. I am not persuaded that its present condition is attributable to the fault of either defendant.
In respect of one lintel, there is a departure from specification. No real damage has been suffered. However, apparently $140 has already been spent in bringing one lintel into line with the specification.
The complaint in respect of the step is trivial and I ignore it.
No other complaints are established.
The result is that the plaintiff succeeds in respect of the following matters:
Vents on the Inner Sleeves – I am not able to determine how many vents were not installed nor how much was (or is) the cost of removing blocks. I must make some arbitrary judgment against Mr Cooper in respect of it.
Type 1 Walls – The plaintiff succeeds against both defendants jointly and severally. The appropriate time for costing the damages is 1975/76 when Messrs Cooper and Miley should have been asked to carry out their tasks correctly, or some other remedial action taken. The defect was obvious, the remedy apparent from the plans and inexpensive. A reasonable proprietor would have attended to it.
Type 2 and Type 3 Walls – The plaintiff succeeds against Mr Miley. The appropriate time for costing is 1975/76.
Lintels – The plaintiff succeeds against Mr Cooper. The appropriate time for costing is 1975/76.
The defendant having succeeded in relation to the principal claims, the Government grants are irrelevant. I would not have taken them into calculation in any event.
Mr Spratt and Mr Hudson gave cost estimates. I do not accept Mr Spratt's estimates or procedures. I tend to favour Mr Hudson, but regard his estimate as low and incomplete. Assessment is, in the end, a value judgment. I allow:
Vents $200
Type 1 Walls $2000
Type 2 Walls $1500
Type 3 Walls $2500
Lintels $140
These prices are sufficient to cover design, administration and supervision costs.
There will therefore be judgment for the plaintiff against Mr Miley for $4,000, against Mr Cooper for $340 and against both defendants jointly and severally for $2,000.
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