Robak Engineering and Construction Pty Ltd v Boral Resources (Vic) Pty Ltd
[2004] VSC 104
•6 April 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
BUILDING CASES LIST
No. 5922 of 1997
| ROBAK ENGINEERING AND CONSTRUCTION PTY LTD | Plaintiff |
| v | |
| BORAL RESOURCES (VIC) PTY LTD AND ANOTHER | Defendants |
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JUDGE: | HARPER J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 9-12, 16-19, 23-26, 30 SEPTEMBER, 1-4, 7-10, 22-24 OCTOBER 2002 | |
DATE OF JUDGMENT: | 6 APRIL 2004 | |
CASE MAY BE CITED AS: | ROBAK ENGINEERING & CONSTRUCTION PTY LTD v BORAL RESOURCES (VIC) PTY LTD & ANOR | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 104 | |
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TORT – Supply of concrete to subcontractor of plaintiff for construction of public swimming pool – Pool found to be defective – Whether defects due to poorly mixed concrete or poor spraying technique by subcontractor – Alleged negligent misrepresentations by first defendant/supplier – Negligence
TRADE PRACTICES – Misleading and deceptive conduct – Supplier’s alleged representations that the concrete would be suitable for the purpose - Trade Practices Act, s. 52, s.53(a) – Fair Trading Act, s.11
CONTRACT – Collateral contract
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W Harrison | Deacons |
| For the First Defendant | Mr A G Uren QC with Mr R Andrew | Ebsworth & Ebsworth |
| For the Second Defendant | No appearance |
TABLE [L1]OF CONTENTS
Introduction........................................................................................................................................ 1
The Pleadings..................................................................................................................................... 2
Foster Hall......................................................................................................................................... 14
Boral’s Contact With Robak........................................................................................................... 16
Boral’s Batching Process................................................................................................................. 20
Description of Sequence of Spraying on 27 September 1995.................................................. 24
Complaints to Boral......................................................................................................................... 31
The Results Following Construction........................................................................................... 36
Taking of Core Samples................................................................................................................. 37
45mm Ø Cores............................................................................................................................. 38
75mm Ø Cores............................................................................................................................. 38
69 mm Ø Cores............................................................................................................................ 40
Cause of Leaking.............................................................................................................................. 40
Location of Leaks........................................................................................................................ 40
Voids and “Honeycombing”..................................................................................................... 42
Results of Infra Red Test............................................................................................................ 44
Poorly Mixed Concrete.................................................................................................................... 48
Evidence of Concrete In Situ: Observations............................................................................ 48
Evidence of Concrete In Situ: Chemical Testing of Core Samples....................................... 56
Evidence About Coning and Balling........................................................................................ 59
Did Boral’s Batching Process Cause the Problems?............................................................... 67
Do Differences in Slump Show Poor Mixing ?....................................................................... 73
Coarseness of Concrete.............................................................................................................. 77
Bag Pieces..................................................................................................................................... 78
Bleeding and Falling Concrete...................................................................................................... 84
What is “bleeding” ?................................................................................................................... 84
How Much Water Was Added, When and By Whom?......................................................... 87
Evidence About Falling Concrete............................................................................................. 93
Movement of Formwork............................................................................................................ 95
Inadequate Spraying Technique................................................................................................... 98
Reinforcement................................................................................................................................. 107
Placement and Configuration................................................................................................. 107
Coating on Reinforcement....................................................................................................... 113
The Strength of the Concrete....................................................................................................... 114
Conclusions..................................................................................................................................... 115
HIS HONOUR:
Introduction
The redevelopment of the North Melbourne Swimming Pool complex was, in 1995, a major project for the City of Melbourne ("MCC"). The plaintiff ("Robak") was the project’s head contractor. It involved the construction or reconstruction of four swimming pools which together would cater for the needs of bathers of all ages. The youngest were to be accommodated in, respectively, the “play pool” and the “toddlers’ pool”. Then, for the more mature swimmers, there were to be the “leisure pool” and the main or “formal pool”. The last two were to be linked by a channel which was to enter the Formal Pool near its south-east corner.
A concrete contractor was required. It was decided to engage the second defendant (“Foster Hall”) for this purpose, and to use concrete ordered from and supplied by the first defendant ("Boral"). Delivery was effected on 27 September 1995. On that day, Foster Hall applied the concrete by spraying it over reinforcing rods.
Supplier and contractor each blame the other for the leaks which were found to be widespread when the Formal Pool was filled. The reconstructed pool was subsequently rebuilt. Robak, which paid for the rebuilding, now seeks to recover the cost. To that end, it has brought these proceedings.
Robak initially named only Boral as a defendant. The latter thereafter joined Foster Hall as a third party. A subsequent application by Boral to join Foster Hall pursuant to s. 131 of the Building Act was resisted by Robak. The application initially failed, but succeeded on appeal. That made little difference to Robak. It made no consequential amendments to its pleading, and did not seek at trial to pursue the additional defendant. Rather, it continued to concentrate its entire attention against Boral. It is also relevant that Foster Hall did not take any active part in the proceeding save that Mr Brancatisano, its Managing Director, was a principal witness for the plaintiff. Despite these matters, the extent of Boral’s liability cannot, of course, exceed the limits set by Parliament.
The Pleadings
The claim against Boral, as presently formulated, is set out in a fourth further amended statement of claim (“the statement of claim”). That document is dated 22 October 2002, this being the day on which approval was granted for the pleading in its present form. Robak there pleads the incorporation both of itself and of Boral.[1] Each allegation is, by Boral's amended defence dated 9 April 2001,[2] (“the defence”) admitted; and for good measure Boral alleges the incorporation of Foster Hall: see paragraph 1-2.2 of the defence. The statement of claim then pleads the head contract, which is dated 1 May 1995: see paragraph 3. This, too, is admitted – as is the allegation that part of the works the subject of the head contract included the construction of and reticulation works for a new set of pools. [3] According to Robak, in an allegation not admitted by Boral, it was a term of the head contract that the contract for the pool works be the subject of a separate tender and let by the MCC to a nominated sub-contractor. [4] Robak was the successful sub-tenderer. Boral admits that, in May 1995, Robak entered into a nominated sub-contract with the MCC to effect the pool works,[5] including "the forming and placing of reinforced concrete to the walls of a swimming pool described in the pool contract as the formal pool”: see paragraph 7 of the statement of claim.
[1]Statement of claim, paras. 1 and 2
[2]Although the amended defence predates the fourth further amended statement of claim, it was not further amended until the trial was almost at an end; and the later amendments are not presently relevant.
[3]Statement of claim, para. 4
[4]Ibid, para. 5
[5]Ibid, para. 6
Boral also admits (in paragraph 9.1 of its defence) that "it was supplied with some details of the specifications for concrete by Robak"; and although it does not admit the allegation that this was "prior to 23 September 1995", the several accounts are not far apart. According to Boral it was Robak who, in September 1995, forwarded a three page facsimile transmission to Boral, being pages 20 and 24 and (it is thought) page 23 of a specification entitled "North Melbourne Swimming Pool Redevelopment Volume 1 Section 5 Concrete." Boral also asserts, however, that "on or about 19 or 20 September 1995", shortly before the fax was received, a telephone conversation took place between Bill Bowie, Boral’s Technical Manager, and Peter Brancatisano, the managing director of Foster Hall. During this conversation, Mr Brancatisano asked Boral "to supply 40 cubic metres of normal spray mix concrete for the North Melbourne Pool on a date to be advised." When Mr Bowie raised a query about the specification, he was transferred to Robert Baker, the Managing Director of Robak and a graduate in civil engineering from Swinburne University. Mr Baker said that he would forward the specification to Boral. The result was the receipt of the three pages to which I referred above. The narrative is continued by Boral in its particulars to paragraph 9.3 of its defence:
"Bowie then rang Baker and asked him whether the slump and shrinkage requirements applied, and whether the accelerating admixture applied given the construction techniques to be used (as Brancatisano had asked for normal spray mix). Baker said that he could not answer and told Bowie to telephone the design engineers [Beca Simons Pty Ltd]. Baker gave Bowie the names of Darren Cuttler and John Weymss … at [that firm].
Bowie rang John Weymss of Beca Simons. Bowie told Weymss that he had been asked for normal spray mix and asked whether the specification conditions with respect to slump, shrinkage and accelerating admixtures still applied. Bowie and Weymss discussed the accelerating admixture. Weymss said they (Beca Simons) were not going to use it and did not know why it was in the specification. On slump Bowie asked Weymss whether the slump requirement was still applicable given that the mix would be difficult to spray. On shrinkage, Bowie asked Weymss whether the shrinkage requirement was still applicable for the pool as the concrete would be kept in a moist environment and would have a lower tendency to shrink. Weymss' response to these questions was non-committal. Bowie told him that he would submit a mix design to Foster Hall for him (Weymss) to approve and he said OK."
Boral then alleges that, on or about 26 September 1995, it was engaged by Foster Hall to supply the required concrete.[6] The contract was, Boral asserts, partly oral and partly in writing. As pleaded, the oral portion seems to encompass the telephone conversations to which I have already referred, although portions of those conversations were clearly not contractual, and doubtless are included in the particulars only because they form part of the narrative. That part of the contract which is in writing is to be found in a letter and mix design prepared by Mr. Bowie and forwarded by ordinary mail on 22 September and by fax on or about 25 September. The addressee is not identified. Then, on or about 26 September, Foster Hall placed an order by phone and by written order form. According to Boral, its own standard conditions of sale and delivery also formed part of the contract, together with the 22 September letter, the mix design and the order form.
[6]Defence, para. 9.3
Having in paragraph 9 of the statement of claim alleged that Foster Hall had, before 23 September 1995, given to Boral details of the concrete specifications, Robak (by paragraph 10 of the statement of claim) proceeds to allege, and Boral (by paragraph 10.1 of the defence) to admit, that Foster Hall expressly or impliedly made known to Boral that the concrete required for the main pool:
(a) would be required on site pre-mixed;
(b) would be required on site in batches;
(c)would be supplied in accordance with Australian Standard AS 1379 Ready Mixed Concrete.
Also alleged by Robak in paragraph 10 (but on this occasion denied by Boral) are the propositions (which, according to Robak, were expressly or impliedly made known by Foster Hall to Boral) that:
(a)save in respect of specific and approved variations, the concrete when delivered should be such as would enable Foster Hall, in the event that it were awarded the tender for the main pool, to comply with its contractual obligations;
(b)the concrete would:
(i)unless otherwise specified, be supplied in accordance with the current relevant standards of the Standards Association of Australia; and
(ii)enable Foster Hall to comply with Australian Standard AS 3735 Liquid Retaining Concrete Structures.
I pause here to note the difficulty of drafting, let alone implying, a term that a product, when delivered, would be of a quality sufficient to enable the purchaser to meet whatever terms might be included in the latter’s contract following a successful tender bid. Yet that, apparently, is what paragraph 10 (c) of the fourth amended statement of claim alleges. In denying this allegation, Boral would seem, prima facie, to be on strong ground. The position would perhaps be otherwise if it were pleaded and established that, at the time Foster Hall made its requirements known, it also furnished Boral with tender documents that themselves made plain what the terms of Foster Hall’s “contractual obligations” would be. It is not alleged that Boral was provided with this information.
Boral's denials are followed by its assertion, made in paragraph 10.3 of its defence, that it:
(a)was not provided with sufficient information by Foster Hall to ascertain the latter's contractual obligations to Robak;
(b)was only provided with that part of the specification contained in the three pages referred to above; and
(c)could not ascertain which, or which parts of, any relevant Australian Standards was or were applicable.
The Boral letter of 22 September was, as Boral admits, provided by Foster Hall to Robak on or about that day. It was, as Boral alleges, also forwarded by facsimile to Robak – although this was not until 25 September or thereabouts: defence, paragraph 11.2.1. Included either in the text of the letter, or as a separate document, was what Boral called a "mix design" and Robak referred to as “the Boral Concrete Specification”. (I will adopt Boral’s nomenclature.) The mix design was (Boral says) submitted for approval. The defence, by paragraph 11.2.3, pleads that the "mix design submission" expressly stated that it did not comply with the submitted specification and noted that "drying shrinkage compensators may be added to reduce shrinking limits." It also mentioned that "mixes may be subject to minor alterations." As for the letter itself, it included (according to Boral’s pleading at paragraph 11.2.2) the following:
"The aforementioned details relating to the mix design required for use of the project should be submitted to your client, consulting engineer or architect for approval prior to supply of pre-mixed concrete on site.
Please confirm in writing that such approval of mixed [sic] design in question for use on the project has been given, to enable us to supply pre-mixed concrete in accordance with your requirements."
In these circumstances, Boral admits (at paragraph 12 of the defence) that at all material times it knew, or ought to have known, that the concrete was required by Foster Hall in circumstances "where [Foster Hall] was not the head contractor or owner of the project": statement of claim, paragraph 12. In particulars under that paragraph, which one must assume were supplied so that the reader would know how it was that, according to Robak, Boral was in a position in which it knew or ought to have known that Foster Hall was not the head contractor, Robak alleges that on 11 May 1995, Mr Baker of Robak and Mr Rob Lyle of Boral discussed the project. On that day, Mr Lyle offered on behalf of Boral to supply concrete for the project at a price of $143.00 per cubic metre.
Boral also admits (in paragraph 13 of the defence) that, in “the Boral Concrete Specification”, it made a number of representations about the concrete to Robak. These were that the concrete would:
(a) have a nominal slump of 60 mm;
(b) have a nominal water content of 190 kg/m³; and
(c) include two specified admixtures.
Other representations are pleaded by Robak as having been made by the Boral specification.[7] These latter, however, are denied by Boral.[8] They are that the concrete mix supplied by Boral would achieve a compressive strength of no less than 40 Mpa, would have a cement content of 380 kg/m³ and would have a water/cement ratio of 190:380. Boral has not pleaded to what, according to Robak, are additional representations contained in the Boral specification: that the concrete mix would (i) include fly ash of 20 kg/m³; (ii) meet the measurement requirements of AS 1012 Part 5; and (iii) comply with all the requirements of AS 3600.
[7]Statement of claim, para. 13.
[8]Defence, para.13.2.
All these representations are, according to Robak, to be found in the Boral mix design. Other representations were also (again, according to Robak) made by Boral. These, however, (so Robak asserts) were implied. Some of them are admitted by Boral: that the concrete (i) would be delivered on site pre-mixed; (ii) would have all constituents uniformly dispersed throughout; and (iii) would be delivered in batches which would comply with AS 1379. Other allegations are denied. These are that the concrete would, when delivered, enable Foster Hall to comply with its contractual obligations to Robak; that it would meet the current relevant standards of the Standards Association of Australia; and that it would enable Foster Hall to comply with AS 3735. Boral does not plead to an allegation that it represented that the concrete would be suitable for use in a public swimming pool.
According to paragraph 15 of the statement of claim, the Boral mix design was on or about 25 September 1995 approved by Pels Innes Neilson Kosloff, the architects for the project. On the same day, Robak entered into a sub-contract with Foster Hall for the construction of the pool.[9] On the basis that neither of these allegations are directed against it, Boral does not plead to either. This is one of the peculiarities of these pleadings, since Boral later in the defence asserts positively that its mix design was approved by the architects. [10] It nevertheless admits that, on or about 25 September, Foster Hall engaged Boral to supply the concrete for the formal pool.[11] Boral denies that this was after Robak engaged Foster Hall as the concrete contractor for the project.
[9]Statement of claim, para. 15
[10]Defence, para. 33.1
[11]Ibid, para. 17.1
Both Robak and Boral agree that, on 27 September 1995, Boral delivered eight separate batches of concrete to the site and that, on that day, Foster Hall used it “to carry out the formal pool works”. According to Robak, “some or all” of the batches were defective, or failed to comply with Boral’s contract with Foster Hall, or both: statement of claim, paragraph 20. Particulars of the alleged defects are given. Boral denies them all. Robak claims that the defects resulted in non-compliance by Foster Hall with its obligations to Robak, and by Robak with its obligations under the pool sub-contract.[12] Boral denies this too.
[12]As to which, see para. 4 above
The alleged defects in the concrete delivered by Boral to the North Melbourne site are set out in particulars under paragraph 20 of the statement of claim. I list below, by way of example, those defects which are said by Robak to arise from a breach by Boral of such of Boral’s obligations as Boral admits were binding upon it. Thus, Boral admits that Foster Hall made known to Boral “that the concrete required for the…pool…[w]ould be supplied in accordance with Australian Standard AS 1379”: statement of claim, paragraph 10. Robak alleges (and Boral denies) that “some or all of the batches of concrete supplied did not” comply with this standard.[13] Likewise, Boral admits that its specification represented that the concrete would have a nominal slump of 60mm and a cement content of 380 kg/m³, and would include two admixtures (each of which was identified). Yet, according to Robak, some or all of the batches failed to meet these requirements. Again, Boral denies this failure. It also denies any breach of its admitted representation that all constituents of the concrete would be uniformly dispersed throughout the mix.
[13]Particulars under para. 20 of the statement of claim
The statement of claim sets out in considerable detail, in particulars to paragraph 21, what it asserts were Foster Hall’s obligations under its subcontract with Robak. It is there made clear that, on Robak’s own account of the contractual relationships, Foster Hall and not Boral was the supplier of the concrete to Robak.
Having pleaded in paragraph 20 of the statement of claim that some or all of the batches of concrete were defective, that document (by paragraph 22) alleges that “[b]y reason of the matters contained in paragraphs 20 to 21 above” the MCC “required the removal and replacement of the defective concrete…which rectification was undertaken by and at the expense of Robak.” The requirement is admitted by Boral - which, nevertheless, denies any responsibility for a decision that in any event was not “a result of any defect in the…concrete as supplied to the site by Boral”.[14] The latter denies that the rectification was at Robak’s expense: defence, paragraph 22.2.4. Indeed, Boral in paragraph 22.2.6 alleges that the removal and replacement of the concrete “was unnecessary and unreasonable as the…pool…could have been appropriately repaired and rehabilitated.”
[14]Defence, para. 22.1
According to Robak, Boral had itself put forward an unreasonable proposal for the rectification works. The relevant allegations are, unusually, to be found not in the substantive pleading but in particulars included under paragraph 22 of the statement of claim. Perhaps for that reason, Boral does not in its defence address them. Be that as it may, Robak in those particulars asserts that the Boral proposal:
(i)did not provide the MCC with a product of a quality equal to that which Robak contracted to provide to the MCC;
(ii)relied on a membrane to waterproof the inside of the pool walls but did not address waterproofing the external wall surface;
(iii)contained an unsatisfactory guarantee, in that it was for a 10 year period whereas Robak had contracted to provide a pool with an expected life of 40-50 years;
(iv)failed to provide reasonable protection "to areas where the defective concrete was located at the rear surface";
(v)would if given effect result in the pool walls being "exposed to negative hydrostatic pressure";
(vi)made inadequate provision for the identification of defective materials;
(vii)would require extended curing times; and
(viii)did not provide for excavation which would expose the external wall faces.
Robak then turns to a cause of action in negligence. It alleges (by paragraph 23 of the statement of claim) that Boral owed a duty of care to Robak. That duty was to provide to Foster Hall concrete which complied with Boral's specification and with the relevant Australian Standards, and was fit for the purpose for which it was to be used.
Boral denies that it had "a proximate" relationship with Robak, or owed that company a duty of care: defence, paragraph 23.1. Then, in subsequent sub-paragraphs of paragraph 23, Boral pleads (amongst other things) that by the terms of its contract with Foster Hall it expressly rejected "responsibility in respect of strength or any defect which may develop in any concrete supplied” if without the approval of Boral's representative water is added to a delivery, or if an admixture is used at Foster Hall's request or specification, or if a discharge of concrete from the relevant truck takes place more than 90 minutes from the time that the relevant vehicle left the depot. Nor, according to Boral, was it to be responsible for faulty handling, placing or curing of the concrete: defence, paragraph 23.2.4.
Breaches by Boral of a duty of care owed by it to Robak are alleged in paragraph 24 of the statement of claim. Boral, it is there asserted, delivered concrete some or all of the batches of which failed to comply with either Boral’s mix design or the relevant Australian Standard. It was also unfit for the purpose for which it was to be used.
A further breach is put forward. It is alleged in paragraph 24A of the statement of claim that, after complaints from Foster Hall, Boral on 27 September 1995 “breached the duty of care referred to in paragraph 23 above in that...its area representative attended on site to inspect the concrete delivered and the construction area where the concrete had been and was yet to be sprayed.”
This does not sound much like a breach of a duty of care. The particulars under paragraph 24Ado not provide any clarification of this pleading point. The story they recount is told through Mr Brancatisano. He had difficulty in spraying the first batch because it was too dry. He complained to Boral. Ten minutes later, its plant manager attended on site. He advised the addition of water. This having been done, the plant manager said “that he would fix the problem back at the plant and left the site.” How his attendance amounted to a breach remains undisclosed.
The particulars then move forward to “around 3.00 to 3.30 pm” and the arrival of batch no. 6. This time “the concrete was much too wet to spray”. Again the plant manager was contacted. Again he attended on site. He was shown “how much concrete had fallen to the pool floor.” He inspected the works, after which he “directed the driver of the truck carrying the sixth batch to park on the other side of the road to allow the driver of the truck carrying the seventh batch to make his delivery.”
It is against this background that the reader comes to paragraph 24B of the statement of claim. This alleges that the plant manager “failed or neglected to draw to the attention of Robak or Foster Hall (if it was the fact) that Boral was unable to comply with” either its specification or with the relevant Australian Standards; that it was unable to deliver concrete fit for the purpose; or that there was any defect or problem with the form work, the reinforcement, the set-up of the construction site or the proposed method of application. As a result (again, so Robak alleges) it suffered loss and damage. This amounted to $642,773.71, that being the cost of replacing the pool walls.
Boral denies all this. It repeats that its batching procedures were appropriately compliant, and that its concrete was before discharge from the delivery vehicles appropriately batched and mixed. Moreover, the Boral area manager who attended the site on 27 September 1995 did so in a routine capacity and not in response to complaints such as those pleaded in paragraph 24A of the statement of claim.[15]
[15]See para. [27], above
The statement of claim then moves to the Trade Practices Act. It alleges, by paragraph 26, that, from 22 September or thereabouts, Boral made certain representations to Robak. No particulars are given in the pleading; but the representations themselves are set out. They are that each batch of concrete would, within the tolerances allowed by AS 1379, meet Boral’s mix design; that Boral would have competent staff; and that the concrete would be evenly mixed and would comply with the specifications of the Foster Hall subcontract. The last of these is denied; the other two are admitted. Each, according to paragraph 27 of the statement of claim, has been breached. Not so, pleads Boral.[16]
[16]Defence, para. 27-32
Further representations are alleged by paragraph 27A of the statement of claim. They were made on 27 September 1995. They were made by Boral’s area representative. They were to the effect that there was no problem with the formwork, the reinforcement, the set-up of the site or the method of application.
On this occasion, particulars are supplied with the statement of claim. It is asserted in particulars under paragraph 27A that the Boral area representative attended the site and observed what was going on, but nevertheless failed to draw to the attention of either Foster Hall or Robak the fact “that any defects or problems existed as now alleged by Boral.” To this, Boral pleads the general denial contained in paragraph 27-32 of the defence. It likewise denies both the allegation in paragraph 28 of the statement of claim that the representations amounted to misleading or deceptive conduct in breach of s. 52 of the Trade Practices Act, and also the allegation in paragraph 29 of the same pleading that, in trade or commerce, Boral falsely represented that the concrete “was of a particular standard, quality, value, grade and composition”; namely, that it was suitable for the purpose for which it was to be used, would meet the relevant contractual obligations of both Robak and Foster Hall, and would comply with the matters specified in the Boral mix design.
The statement of claim next turns to reliance. By paragraph 29A, Robak pleads that, relying upon each of the representations previously set out, and to the knowledge of Boral, Robak: (i) entered into the Foster Hall subcontract; (ii) allowed or permitted Foster Hall to accept delivery of, and use in the pool, each of the eight batches of concrete; (iii) did not take steps to have Boral stop delivering; and (iv) was otherwise dependant upon Boral to provide concrete that both complied with the Boral mix design and the relevant Australian Standard, and was fit for its purpose.
Robak’s pleading next alleges further representations made by Boral. These, according to paragraph 29B, were made by the fact of delivery of the concrete. They were that it complied with the Boral mix design and the relevant Australian Standard, and that it was fit for its purpose. The statement of claim, however, stops short of completing the picture: there is no allegation of reliance by Robak on these representations.
There is, however, an allegation that by reason of all the matters pleaded in paragraphs 26 to 29B of the statement of claim, Boral is in breach of ss. 52 and 53(a) of the Trade Practices Act - as a result of which Robak has suffered loss in the sum of $642,773.71.[17] Further loss will follow, it is claimed, if by reason of Boral’s delinquencies Robak becomes liable for goods and services tax.
[17]Statement of claim, paras. 30 and 31.
There is a final cause of action pleaded by the statement of claim.[18] It is for breach of a collateral contract. As I understand it, Robak alleges that, in consideration for the several representations made by Boral, Robak instructed Foster Hall to use Boral concrete. In breach of the resultant collateral contract, however, Boral “did not comply with the representations” and caused Robak to suffer loss and damage: paragraph 34.
[18]Ibid, paras. 33 and 34.
All this is denied by Boral. The first defendant goes on to allege that Robak did not rely on the provision to Robak of the Boral mix design, or on any representation made in relation to that document, but rather engaged its own experts – the architects Pels Innes Neilson Koslof and the engineers Beca Simons - to examine the mix design on its behalf. It received their approval. Foster Hall then placed its order without seeking any changes to the document. Representations were by this means made by Robak that concrete supplied in accordance with the specification would be acceptable to Robak; but - contrary to s 52 of the Trade Practices Act and s 11 of the Fair Trading Act - Robak engaged in conduct that was misleading or deceptive or likely to deceive or mislead. Moreover, and as a result, if Robak suffered any loss or damage, so did Boral; and the one loss should be set off against the other.
By paragraph 34 of its defence, Boral introduced the Building Act 1993 into the proceeding. The pool works were, according to Boral, building works as defined by ss. 3(1) and 129 of that Act. It follows that this is a building action. It is also true, so Boral would have it, that either Robak (by reason of its own negligence), or Foster Hall, or other parties, were responsible for Robak’s loss, which in any event Robak has failed to mitigate. Foster Hall in turn owed a duty of care to Boral to ensure, among other things, that the concrete was applied in a proper and workmanlike manner, and that the concrete was not diluted either before or after discharge by the addition of water: paragraph 35. Foster Hall failed in this regard: paragraph 35. As a result, Boral has suffered or may suffer loss and damage.
So much for the pleadings. I have not analysed them exhaustively, although I have included in that analysis aspects of them that neither were the subject of detailed attention at the trial nor are of great relevance to this judgment. I thought it appropriate to deal with them to the extent that I have because the reader may thereby come to an appreciation of the theoretical basis which underpinned the case for each side. In the end, however, as is so often the case, the pleadings were not necessarily at the forefront of the parties’ minds as they engaged in their exploration of the evidence. It is to that evidence that I now turn.
Foster Hall
Although Boral did not plead to Robak’s allegation that the latter engaged Foster Hall “in respect of the formal pool works”, I find that such engagement was effected. But it was not encumbered by formality. In his witness statement, prepared on behalf of the plaintiff, Mr Brancatisano gave evidence that in about mid September 1995 he was driving past the North Melbourne pool. He saw an opportunity: the site was under reconstruction. He went in. He had a short discussion with one of the plaintiff’s employees. The topic was whether it was intended to spray or pour. Spraying would be acceptable. Mr Brancatisano provided contact details. Some days later he attended a meeting on site with the plaintiff’s foreman, Mr Pangbourne, and construction manager, Mr Darrago. This lasted about 10 minutes. Mr Brancatisano believes he may have met Mr Baker at this point. He gave evidence that:
“… we just sat in the office and [Mr Darrago] asked me how I would go about it. I explained to him how I would do the job and what I would require. I also told him I preferred to use Boral at that stage because they wanted to use Pioneer. I said I’m more familiar with Boral’s mix because we use it almost every day, Pioneer we don’t use it very often.”[19]
Mr Brancatisano explained that while he preferred to use Boral mix, Readymix was the preference of pool sprayers. Not many people used Pioneer in swimming pools.
[19]T.622
During this meeting Mr Brancatisano says that he was asked about other jobs that he had performed. He mentioned work on the Footscray Swimming Centre and for Park Royal.[20] In his witness statement he also refers to a job involving Hawthorn Grammar (sic)[21] and lists a number of swimming pool companies for which he has performed work.[22]
[20]T.625
[21]This is an institution that does not seem to be listed in any telephone directory covering greater Melbourne. There is, however, a Hawthorn Secondary College.
[22]Exhibit PW 10, paragraph 2 and Schedule A
On or about 25 September 1995, Foster Hall was appointed as the concrete contractor for the formal pool in the North Melbourne swimming pool project. On 25 September or the following day, Foster Hall engaged Boral to supply the concrete. Delivery was to be effected on 27 September. There was no suggestion the Boral’s involvement was at the insistence of Robak. Rather, Mr Brancatisano made it plain that it was his company that prevailed upon Robak to accept Boral in lieu of Robak’s preferred supplier.
Boral’s Contact With Robak
One of the issues debated at trial was the extent to which Robak had dealings with Boral about the use of its concrete. Boral submitted that the decision to use Boral concrete was made between Robak and Foster Hall before Boral became involved. Robak takes issue with this assertion, at least to the extent that Mr Harrison of counsel argued on behalf of Robak that Boral was “anything but an ignorant supplier of material to someone who is a member of an indeterminate class of an indeterminate range.”[23] Boral, he said, knew exactly to whom the concrete was going, the purpose for which it would be used – namely for a water retaining structure being a swimming pool – and that everyone on site would rely on Boral to supply a product that would be suitable. He pointed to communications between Mr Baker and Boral in May 1995 and to later communications in September of that year.
[23]T.2225
The evidence is clear. Boral not only knew the purpose for which the concrete was intended, but suggested a variation to the mix specified in the contract between the MCC and Robak. Indeed, both Mr Baker and Mr Robert Lyell, who at the relevant time was a Sales Administrator in Boral’s concrete division, gave evidence of a conversation they had as early as May 1995. During this conversation the former sought a quotation for the supply of 250 m³ “of specified spray mix” for the construction of the North Melbourne pool complex. Mr Baker faxed to Mr Lyell a page from the specification and a quotation was prepared. Mr Baker later used the quoted price in Robak’s tender.
The evidence from Mr Bowie suggests that, at the time he spoke to Mr Brancatisano and then to Mr Baker on or about 19 or 20 September 1995, he was aware of the May 1995 contact with Boral. When Mr Brancatisano requested supply of “normal pool spray mix”, Mr Bowie enquired about the existence of a specification. Mr Baker faxed to him the three pages to which I have already referred: see paragraph [6] above. Included was a description of concrete for water-retaining structures.[24] That specification noted that “special consideration shall be given to achieving a low permeability concrete” and that “[f]actors in mix design conducive to low permeability are low water/cement ratio, low bleed, and aggregates which are rounded and well graded.” The concrete mix must have a slump of not more than 60mm “unless in the opinion of the Superintendent additional workability is required to facilitate construction and in such cases the additional slump shall be as directed by the Superintendent.” It also stated that:
“The use of admixtures will not be permitted except in special cases where the Superintendent considers increased workability is imperative and in such cases a water reducing admixture in accordance with AS 1478 ‘Chemical Admixtures for Concrete’ shall be used as directed by the Superintendent.”
[24]CB.400071.1. Note: according to Mr Neilson, this is the wrong part of the specifications (see exhibit PW 3, paragraph 135); but the wording appears to be identical.
Mr Bowie formed the view that the specification faxed to him was a “cut and paste” job. It was in his opinion not only incomplete but was also inappropriate for the project. Moreover, the specification did not accord with Mr Bowie’s knowledge, acquired through earlier dealings with Mr Brancatisano, of what the latter meant by a “normal” spray mix. Nor did it provide all of the relevant mix information. Mr Bowie continued in his witness statement:
“10.From past experience I knew that Foster Hall’s technique was to spray and cut concrete to form pool walls. I noted that the slump, shrinkage and setting requirements contained in the specification facsimile were inconsistent with Foster Hall’s request for a normal pool spray mix due to the low slump, minimal shrinkage and fast setting time specified.
“11.While the specification facsimile was silent on the features of the formal pool (such as its design, wall thickness and gutters), it appeared to me that Foster Hall’s spraying and cutting technique was unlikely to work with the concrete called up in the facsimile specification. Accordingly, I needed to clarify whether the slump, shrinkage and setting requirements applied before preparing a proposed mix design.”[25]
[25]Exhibit DW 7, paragraphs 10 and 11.
During his cross examination Mr Bowie asserted that the reference to “fast setting times” was linked to a reference in the specification to “accelerating admixtures”. These would have had the concrete setting hard within 3 minutes, making cutting to shape impossible. Normally, sprayed concrete can be cut half an hour after being placed.[26] Another example of inappropriateness was the nominal slump, which the specification required to be not more than 60mm. He said this was “on the low side for a spray” and only gave a 10mm variation, whereas a nominal slump of 60mm or greater allowed a 15mm variation.[27]
[26]T.1235-1236
[27]T.1234
Mr Baker referred Mr Bowie to the project engineers, Messrs Cuttler and Weymss of Beca Simons. During a conversation with Mr Weymss, Mr Bowie asked whether the slump and shrinkage requirements were applicable “given the mix will be difficult to spray and the pool is a moist environment where the concrete will have a lower tendency to shrink”. Mr Weymss was unsure. Mr Bowie said he would send a proposed mix design to Foster Hall for Mr Weymss to approve. Mr Bowie describes the mix design he then prepared as “typical of that used in the industry for sprayed pool concrete, in accordance with Foster Hall’s request” and notes that it includes the statement that it did not comply with the submitted specification. After some further communication to and fro between Boral, Foster Hall, Robak and Beca Simons, approval for the proposed mix design was given on 26 September 1995 by Mr Cuttler of Beca Simons to Robak. Foster Hall placed its order with Boral on the same day.
It is convenient at this point to examine the Boral mix design itself. This is headed with the name of the client (Foster Hall) and that of the project (North Melbourne Pool Redevelopment). Opposite the column “Nominal Slump” is the figure “60”. The column “Cement Content” includes the figure 380, and that entitled “Nominal Water (L/M)” includes the figure 190. Since the delivery vehicles have a capacity of 5 cubic metres, this means that each batch should contain 950 litres of water. The columns “Deer Park 7mm” (referring to the size and type of aggregate), “Wollert MINUS 5mm” (quarry dust), “Bacchus Marsh Sand”, “Silica Fume” and “Fly Ash” (with the word “Kaolite” in handwriting appearing next to it) have opposite each, respectively, the figures 540, 290, 950, 10 and 20. The column “Grade F’C (MPA)” is empty. Indeed, neither there nor elsewhere did the mix design specify the strength which the concrete was expected to attain.
Neither in its statement of claim nor at trial did the plaintiff take issue with the mix design put forward by Boral and accepted by the project engineer (its case was, rather, that the concrete as delivered did not match the Boral specification). That design included certain admixtures which were intended to facilitate application. Mr Baker explained that one admixture, an air entraining agent, was used to “make the concrete almost as a fondue is. A fondue is just cream with air in it but it makes it easier to work with. If the concrete is nice and sticky and it’s a fondue and all that, it’s very nice to place.”[28] Given that this is so, one might expect an air entraining agent to be routinely specified in a standard pool mix. Mr Anthony Joseph, who in September 1995 was the Technical Manager for Pioneer Concrete, nevertheless gave evidence that his company does not use it at all.[29] On the other hand, evidence from Mr Brancatisano suggests that pool sprayers tend not to use Pioneer concrete.
[28]T.444
[29]T.1227
Other ingredients specified in the mix design were silica fume and Kaolite. They were added to make the concrete stick to the walls as they were being sprayed. The amounts to be added would depend on the height of the structure in question. Mr Bowie agreed that the sprayer would expect the concrete to stick and would rely on Boral to produce a product that could do this.[30] During the course of evidence Mr Harrison questioned why the fly ash referred to in the mix design approved by Beca Simons seemed to be replaced by Kaolite. However, Mr Bowie, who wrote the word “Kaolite” on a copy of the mix design submission,[31] gave evidence, which I accept, that Kaolite is a brand name for a fine fly ash. Mr Harrison’s concern, therefore, was about a distinction without a difference.[32]
[30]T.1240
[31]CB.400071
[32]Exhibit DW 8, paragraph 6 and T.1237
Another additive in this mix design was a water reducing dispersing agent (“WRDA”) which separates the particles of cement, making the concrete more cohesive and improving workability. Mr Bowie explained in the following terms how WRDA works:
“Cement tends to agglomerate together in water, and the way concrete technology works is you hydrate the cement particle. If you have got particles butting up together, of course that joint part is not exposed to water so therefore it can’t hydrate. The water reducer imparts a light charge and separates them, so the whole particle can be surrounded by water."[33]
[33]T.1385-1386
It also has the result that the desired consistency is more readily attained than if the additive were not used. This in turn reduces shrinkage and voids.
Boral’s Batching Process
It was Boral’s task to place into each of the trucks designated to deliver to the site on 27 September a mix of ingredients which met the Boral mix design. The first defendant gave effect to this responsibility by making appropriate adaptations to its batching process. One variable was, of course, the amount of water specified for the mix designs of different jobs. It was an important part of Robak’s case that, with the exception of the first load despatched to the North Melbourne pool project, all loads arrived on site too wet.
Mr Peter Fletcher was one of the principal witnesses on the batching process. Although he now works as a concrete field tester for Boral, he was in 1995 mainly employed as the yardman and materials handling officer at Boral’s North Melbourne plant. On 27 September that year, however, he acted as the batcher - something he did from time to time to give the usual batcher, Mr Arnold Vlankacic, some relief from the latter’s duties. Mr Fletcher agreed that he is not as experienced in that role as Mr Vlankacic.[34] He had, nevertheless, received training in the use of the computerised batching process. This occupied about a week, with “someone looking over [his] shoulder”.[35]
[34]T.1094-1098
[35]T.990
According to Mr Fletcher, the batching process was controlled by a fully automated C2000 integrated computer batching system.[36] A daily dispatch or shipping sheet would be completed the night before. This showed details of the time and intervals between loads, the customer, the job address, the size of the order, the amount of cement, the size of aggregate, the slump, and (in this case) 10kg of silica/m³ and 20 kg Kaolite/m³.[37] The batcher sat in front of a computer screen located near the overhead bins holding the raw materials. An employee known as the “shipper” would send the next order to be batched through to the batcher’s computer using a mix code (in this case it was 00514R). The batcher’s screen would show the mix code, quantity and the truck number, but not the name of the customer or the destination for the load.[38] The batcher would then call up on his screen the ingredients for that mix code (except in this case the Kaolite and silica, which were added manually).[39] If everything seemed in order, batching would commence.[40] It was part of Mr Fletcher’s job to record the details of each load in a batch book. A matching docket would then be printed.[41]
[36]Exhibit DW 2, paragraph 6
[37]CB.400109-400110; T.1059
[38]T.1051
[39]T.1070
[40]T.1059-1060
[41]T.1017-1019
During cross examination Mr Fletcher agreed that neither his batch book nor the computer generated dockets specified how much Kaolite or silica were added to the spray mix used for the North Melbourne project.[42] An examination of each of the eight delivery dockets reveals, however, that those two ingredients were there recorded as being among the ingredients to be included in every batch. Under the heading “Admixture/other”, each docket contains the typewritten annotation “62 Kaolite 20 Silica Fume”. Mr Fletcher accepted that this shows what was specified, but not necessarily what was in fact included. [43] On the other hand, when it was put to him that the delivery dockets are supposed to show exactly what is in the truck to which the particular docket relates, he answered “Yes”.[44]
[42]T.1002; batch book is at CB.400103 to CB.400106; dockets are at CB.400133 to CB.400139 and CB.120093
[43]T.1071
[44]T.1072
Although there is a section in the batch book headed “Manual Only” which is divided into three columns headed in turn “Cement”, “Fly Ash” and “Water”, the first two of these columns were not used in 1995: the system had by then been automated. There are some figures which have been circled in the “Fly Ash” column; but Mr Fletcher could not remember what they represented. The column headed “Ret Conc” was originally intended to record concrete returned. It was instead adapted by the batchers to record slump stand water.[45]
[45]T.1020
In his evidence, Mr Gnocchi said that the mix code (which, it will be remembered, was in this case 00514R) represented the various ingredients comprising the mix. The numerals “00” represented a specified cement mix, while “5” represented 7mm aggregate, “1” stood for general purpose cement (which did not contain fly ash) and “4R” showed that additives were to be included (although the manually added components such as silica and Kaolite were not individually identified).[46]
[46]T.1134-1135, 1139
Kaolite and silica, when specified, would be added to pool spray mix by throwing unopened bags into the barrel of each truck. This was the job of the yardman.[47] Mr Fletcher gave evidence that the shipper would yell out to the yardman “pool mix” and tell him how many bags were needed.[48] The responsibility for ensuring the addition of these ingredients (known as “additives”) rested with the shipper.[49] The truck then moved to the batching station. Here, according to Mr Fletcher, a small amount – perhaps 10 litres[50] – of water was included. This was followed by the aggregate and sand, followed again by the cement; and then more water. The other “additives” joined the mix about halfway through. The process took about five minutes. It was controlled by the computer.[51] When all the ingredients had entered the truck and it had pulled away, the batcher pressed a “complete” button to release the unused balance of the water.[52] The driver then proceeded with his load to the slump stand. Here there were two hoses - one red and one black. The former was used to add water so as to achieve the correct slump; the latter provided water with which to wash the truck. A dial, which was connected to the slump stand, told the batcher how much water was used for slumping. The batcher entered this figure into the batch book and returned the counter to zero for the next truck. The amount of water added at the slump stand was a matter for the driver to determine.[53] Mr Fletcher agreed that he had no control over whether the total amount of water added at the plant corresponded with that specified in the mix design.[54]
[47]T.1002
[48]T.1061-1062
[49]T.1083
[50]T.1087-1088
[51]T.988-989
[52]T.1032
[53]T.1021-1022
[54]T.1036
The computer system employed in September 1995 had a number of fail-safe mechanisms which alerted the batcher to any departures from the particular mix design being batched or any problem with the flow of raw materials.[55] If one of the raw ingredients was not batching as it should, the system would automatically shut down, requiring someone to locate the source of the problem.[56] During cross examination Mr Fletcher nevertheless agreed that he had the capacity to control the amount and timing of water being added during the batching process.[57] He also said he could override the system to add extra sand to dry a load out. If that happened, however, there would be no record of the additional sand.[58]
[55]Exhibit DW 2, paragraphs 7 and 8
[56]T.989
[57]T.1031
[58]T.1032, 1056-1058
One of the factors that will influence the amount of water in any given load is the moisture in the sand. Moisture may vary depending on where the sand is taken from in the stockpile. A difference of 2% in such moisture can vary the water content by about 18 litres/m³. In September 1995, Boral had a process of checking the sand from time to time during the day. On 27 September 1995 four sand moisture tests were carried out. The results were 7% at 9.00 am, 6.9% at 11.30 am, 6.9% at 12.10pm and 7% at 3.00pm.[59] A standard allowance of 326 litres per batch was made for sand moisture based on a 7% figure. I also have regard to evidence from Mr Franceschini that:
“… sand varies in its moisture content quite markedly from the bottom of the pile to the top of the pile and day to day. It’s not quite as easy as just assuming 7%, I don’t think. It may be a nice average figure over a period of time.”[60]
[59][Check source]
[60]T.588
After the trucks were batched they were directed to wait at the plant and agitate their loads at mixing speed for 12 minutes before departing for the pool site.[61]
[61]Exhibit DW 4, paragraph 17(e)
Description of Sequence of Spraying on 27 September 1995
On 27 September 1995 Foster Hall had a team of five people on site. They included Mr Brancatisano, Rodney Butler, Frank Bicherri, Joe Mico and Mr Brancatisano’s nephew, Joe Brancatisano, who was a trainee.[62] Mr Butler, who shared the spraying with Mr Branctisano, had about four years spraying experience.[63] Mr Brancatsiano’s nephew acted as the pump operator on that day. His duties were described in the following terms:
“If we wanted to stop the machine, he was there to stop the machine, if he wanted to add a bit more water he would ask the driver to add a bit more water to it, when the truck was finished he would stop the machine, stop the compressor before the next load, they were his duties for the day if things went accordingly.”[64]
He would respond to hand signals given to him by the sprayer: “If we give him a signal to put water in, he’d put water in, if we would give him a signal to slow down, he would slow down.”[65] When asked in cross examination how the trainee would know how much water to add, Mr Brancatisano said: “… at that stage every load that would be started one of us more experienced would go out and check it out.”[66] However, later in re-examination he gave evidence that hand signals would be used to tell the pump operator how much water to add: a small amount being about 10 seconds or 15 to 20 litres; a medium amount being 20 seconds; and then “a lot more”.[67] As thus described, the method adopted was slapdash, not in keeping with the skill of a trainee, and did not accord sufficient authority to the driver of the truck. It is noteworthy that Mr Brancatisano made no attempt to say that, because the problem at North Melbourne was loads arriving too wet, his evidence at this point did not apply to the North Melbourne project.
[62]T.626
[63]T.632
[64]T.629
[65]T.631
[66]T.636
[67]T.721
The trucks delivering the concrete discharged their load down a chute into a hopper where a piston pump pushed it into a pipeline made up of 75 mm Ø steel sections either one, two or three metres in length. These were added together or subtracted, depending on where the sprayer was located. The pipeline was then connected by a reducer to a 50 mm Ø 10 metre long flexible hose. A reducer is a piece of pipe, attached by clamps at each end, about 6 inches in length. It is 75 mm Ø at one end and 50 mm Ø at the other.[68] A nozzle was attached to the end of the hose, together with an air hose attached to a compressor.[69]
[68]T.692, 714
[69]T.660-662
Mr Brancatisano explained that as each delivery arrived, the sprayer would discharge a little from the nozzle. An experienced sprayer can thus ascertain whether it is too wet or too dry.[70] He said it was his practice to order concrete at a 60 mm slump and then pump at between 70 and 75 mm.[71] He worked on the basis that the drivers allow 15 mm either way and most of the time the concrete arrives wetter than the specified slump.[72] I conclude that as a matter of routine, although by no means invariably, Mr Brancatisano, an experienced concrete sprayer, caused water to be added to a load after its arrival on site.
[70]T.632-633
[71]T.634
[72]T.636
It seems to me that this is a point of some significance. In the evidence outlined above, and elsewhere during the course of the trial, Mr Brancatisano accepted that the sprayer has a real input into the water content of the concrete as actually sprayed. And that is as one would expect. A striking point about the evidence in this case was that the amount of water incorporated into the mix, and indeed the sequence in which that water is incorporated, is of particular significance both to the ease with which the mix can be applied by spraying, and to its effectiveness afterwards in doing the job it was intended to do. Both these issues, but especially perhaps the first, are of immediate concern to those charged with the task of putting the concrete where it is meant to go. It would be extraordinary if an experienced sprayer did not have an expertise in judging whether or not a particular mix displayed the appropriate balance between its water content on the one hand and its other constituents on the other. It would be equally extraordinary if, when an experienced sprayer concluded that a mix was too dry to spray with anything like maximum efficiency, no steps were taken to ensure that the problem was rectified.
The first load of the day was delivered by Mr Mark Smarrelli. According to the batching docket (No. 641230), the amount of water added at the plant was 867 litres. This included both batch water and an amount allowed for sand moisture.[73] A further 73 litres was added at the slump stand.[74] The total amount of water included in the mix as the batch left the plant was therefore 940 litres, or 10 litres below the design limit of 950 litres. If these figures are correct, and they were not challenged at the trial, the load was only fractionally too dry, and within the accepted limits of variation.
[73]CB.400133
[74]CB.400105
Mr Smarrelli departed the plant at 10.18 am. He says he received no complaint about the concrete he delivered, nor did he observe any problem with it. In particular, he did not observe any coning, bleeding or balling.[75] He makes no mention of further water being added at the site, but then he has no particular recollection of this delivery.[76] He agreed during cross examination that the quantity of water added at site is usually only recorded on the delivery docket when the amount is excessive.[77]
[75]Exhibit DW 16, paragraph 5
[76]T.1593
[77]T.1597
Mr Basil Peters delivered both load 2 and load 3. He departed the plant at 11.02am with the first of these (docket No. 641238). It had a total water content of 955 litres comprising 894 litres of batch and sand water[78] and 61 litres added at the slump stand.[79] When he left the plant the load was 5 litres above the design limit. He waited at the pool for 45 minutes while load 1 was still being discharged.[80] In his witness statement Mr Peters says that at the pool he added a “small amount of water, possibly 20 litres or so … at the request of the concrete sprayers.”[81] During cross examination, however, he conceded that he had no recollection of adding this water.[82]
[78]CB.120093
[79]CB.400105
[80]Exhibit DW 21, paragraph 6
[81]Exhibit DW 21, paragraph 7
[82]T.1691
When load 3 (docket No. 641256) departed the plant at 12.54pm, it was only two litres above the mix design. The total batch and sand water was 892 litres[83] while the water added at the slump stand was 60 litres.[84] There is no record of further water being added at the site. Although Mr Harrison during cross examination put it to a number of Boral’s expert witnesses that water was added to load 3 on site,[85] and repeated the claim in his final submissions,[86] the evidence does not support this (see paragraph [228] below).
[83]CB.400134
[84]CB.400104
[85]T.1827-1829
[86]Plaintiff’s written submissions, paragraph 3.6
The fourth load of the day was delivered by Mr Vincent Di Giantomasso. The batching docket (No. 641267) shows that the total amount of water added at the plant was 879 litres, comprising batch water and sand moisture of 819 litres[87] and 60 litres at the slump stand.[88] The load was therefore 71 litres below the design limit of 950 litres. Mr Di Giantomasso departed the plant at 1.54pm. He too says he received no complaint about the concrete he delivered, nor did he observe any problem with it, including any coning, bleeding or balling. During cross examination he agreed that while he could and would identify a cone at the slump stand - because it would affect the amount of visible concrete in the barrel - a small cone might not be seen. He also agreed that balls of concrete might not be detected during discharge until there was a blockage somewhere.[89]
[87]CB.400135
[88]CB.400104
[89]T.1622-1623
Load 5 (docket No. 641277) was delivered by Mr John Zambelli. He left the plant at 2.45pm[90] with a load containing total water of 863 litres, comprising 818 litres of batch and sand water[91] and 45 litres added at the slump stand.[92] As a result the load was 87 litres below the design limit when it left the plant. He recalled that there were problems with this job and seeing “a lot of fallen concrete” – more than usual. The sprayers were having “a hard time” and were “ropable” at the fact the concrete was falling.[93]
[90]CB.400129
[91]CB.400136
[92]CB.400104
[93]Exhibit DW 20, paragraph 6(c) and T.1649-1650
Mr Di Giantomasso returned to the site with the sixth load of the day. Like its immediate predecessor, this load too contained less than the specified quantity of water. The batching docket (No. 641283) shows that the total amount of water added at the plant was 912 litres, comprising batch water and sand moisture of 819 litres[94] and 93 litres at the slump stand:[95] a shortfall of 38 litres. A further 15 litres was added at the site.[96] Yet Mr Brancatisano gave evidence that this load arrived so wet that Mr Giles directed its driver to hold back its discharge pending the arrival and subsequent discharge of load seven. The reasoning, according to Mr Brancatisano, was that load six would dry out in the meantime. Mr Giles denies giving such a direction.[97] The only other witness for the plaintiff who was on site at the relevant time was Mr Baker. He made no mention of such an incident in either his witness statements or in the witness box. Mr Brancatisano himself, in a note dated 27 September, made no reference to the presence of any Boral representative on site, although the note was prepared as a record of the events of that day. The note does, however, state that, because the 6th load arrived wet, “we started to unload 7th load so 6th load could dry out.”[98]
[94]CB.400137
[95]CB.400103
[96]CB.400083
[97]T.1501-1502
[98]CB 400086 at CB 400086A
Mr Brancatisano’s version of events is not wholly consistent with the times set out in the relevant delivery dockets. These show that load 6 arrived on site at 3.26 pm (Mr Brancatisano’s note has it as 3.20) and departed at 4.45pm,[99] (a time with which Mr Brancatisano agrees) while load 7, driven by Mr Rodney Elliott, arrived at 4.15 pm and departed at 5.25 pm.[100] Again, Mr Brancatisano accepted these times when he prepared the document dated 27 September 1996 in which he described the events of the day.[101] Given these times, Mr Brancatisano’s note, and his evidence generally on this point, does not make sense: it would presuppose that load 6 was on site for 49 minutes, then either stopped discharging when load 7 arrived or - if still waiting to commence to discharge - allowed load 7 to commence its discharge first. Either way, on Mr Brancatisano’s account the discharge of load 7 was itself interrupted. This must be so if, as the recorded times would have it, Mr Di Giantomasso departed with his truck at 4.45pm, and then load 7 continued to discharge before Mr Elliott left with his truck, forty minutes later, at 5.25pm.
[99]CB.400083
[100]CB.400084
[101]CB.400086 at CB.400086A
Moreover, Mr Di Giantomasso disputed Mr Brancatisano’s account. While he had no particular recollection of this delivery, he pointed out during cross examination that the delivery docket shows a further 15 litres of water being added at site and queried why that would be so if the load was too wet. Later, however, he agreed that, given the long time spent on site, the extra water might have been added towards the end of discharge.[102] Nonetheless, he maintained that if this load had been too wet, it would make more sense to send it back to the plant, which was only some ten minutes drive away.[103] Again, he said he received no complaint about the concrete he delivered; nor did he observe any problem with it, including any coning, bleeding or balling.[104] For the reasons I have set out, I am not satisfied on the balance of probabilities that load 7 was, as alleged by the plaintiff, interposed before load 6.
[102]T.1620
[103]T.1613-1615
[104]Exhibit DW 17, paragraph 7
I have already noted that load 7 (docket No. 641294) was delivered by Mr Rodney Elliott. He left the plant at 4.02pm with a total of 888 litres on board, comprising 838 litres of batch and sand water,[105] together with 50 litres added at the slump stand.[106] The load was therefore 62 litres below the mix design. He was on site for 70 minutes. He added a further 45 litres to the load at the site at the request of the sprayer, possibly because it had dried out.[107] His recollection of whether he discharged his load before load 6 is not reliable.[108]
[105]CB.400138
[106]CB.400103
[107]Exhibit DW 18, paragraph 4(k)
[108]T.1631-1632
The final load of the day (load 8, docket No. 641307) was delivered by Mr Robert Canty. He left the plant at about 5.49pm[109] with a total water component of 996 litres, comprising 858 litres of batch and sand water[110] and 138 litres added at the slump stand,[111] taking the load 46 litres over the design limit. During cross examination he agreed that the amount of slump stand water was “a lot” but asserted that this was not unusual; the load must have been dry.[112] Mr Newbegin described this figure as “suspect”.[113] He thought a plausible explanation would be that the water counter on the slump stand pump had not been properly reset.[114] A more remote possibility is that the same hose was used to wash down the truck - with the result that the water used for that purpose was incorrectly recorded as part of the load.[115] Another explanation might be that the sand moisture had been overestimated. I discuss below the evidence on this issue. Mr Canty saw no sign of coning or balling.
[109]CB.400085
[110]CB.400139
[111]CB.400085 and CB.400103
[112]T.1641
[113]T.1850
[114]T.1874
[115]T.1875
Section 4 of Australian Standard 1379 – 1991 provides for permissible tolerances in relation to batch ingredients. Where the volume of “plastic concrete” produced is > 4m³ (as in this case), the added water may vary ± 20 kg or ± 2%.[116] In five out of eight loads, Boral failed to comply with these tolerances. The documentation suggests that, with the exception of load 8, each batch, when it departed from the plant, was close to, or drier than, the requirements of the specification. Loads 4 and 5 were significantly (71 and 87 litres respectively) below the permissible variations in the specified quantity of water. These facts fly in the face of the complaints made by Mr Brancatisano that most of the concrete was too wet. They also appears to be inconsistent with the phenomenon of bleeding described by him. The plaintiff nevertheless submits that there is a credible explanation. It lies in poor mixing by Boral. I discuss this issue below. First, however, I will examine Mr Brancatisano’s complaints in greater detail.
[116]CB.110013 (Table 4); see T.421 for evidence of Mr Baker
Complaints to Boral
In his first witness statement Mr Brancatisano states that he complained twice to Boral about the concrete. Neither complaint is recorded in his contemporaneous note of 27 September 1995. The first complaint was, according to him, made by telephone after he found that load 1 was too dry and could not pass through the spray line. He says that within 10 minutes the plant manager (whose name he could not recall) attended the site and suggested that water be added. In his witness statement, Mr Brancatisano said that he himself then signalled to the driver to add water, which the driver did. This is certainly consistent with Foster Hall taking responsibility for the decision not to reject the load, but to add water at the site. At all events, Mr Brancatisano, in his witness statement, adds that: “After this, the Plant Manager said that he would go back to the plant and would fix up the problem.”[117]
[117]Exhibit PW 10, paragraph 15
The second complaint described by Mr Brancatisano was in relation to the sixth load. This arrived at 3.20pm. It was, according to both the contemporaneous note and the witness statement, too wet (“much too wet to spray”, according to the witness statement). He says he again telephoned the plant manager (who in fact was Mr Giles), and within 10 minutes he attended the site for the second time that day. Mr Brancatisano describes what happened when Mr Giles arrived:
“I said that ‘it was beyond a joke”, referring to the problems we had been experiencing whilst spraying the concrete. I told him to ‘smarten up’; I then asked him ‘what was going on?’ I then showed him how much concrete had fallen to the pool floor. I told him that most times we tried to spray the upper reaches of the pool walls, the concrete would fall away. I told him that the concrete did not have the required body. I also told him that the concrete was not compacting, and seemed to foam up and slide off the front of the reinforcement. I then asked the plant manager what he was going to do about it.”
Mr Brancatisano says that the plant manager directed the driver of the sixth load to wait, while the seventh load was delivered.[118]
[118]Exhibit PW 10, paragraphs 21 and 22
Boral disputes that Mr Brancatisano complained as he says. Mr Giles says he did not speak to Mr Brancatisano on the telephone. Nor can he recall receiving any complaints as described.[119] He says he first visited the site shortly after 10.00 am as part of his role as Area Manager. He does not seem to dispute that Mr Brancatisano may at this time have complained that there was a problem getting the mix through the concrete pump line with the first load. According to him, such difficulties are not unusual with the first load of the day. However, according to Mr Giles, Mr Brancatisano did not raise any other issues.[120] He then made a second visit while passing. He does not give a time. He did not notice any bleeding, coning or balling; nor was any complaint made to him about the quality of the concrete.[121]
[119]T.1500, 1505
[120]Exhibit DW 11, paragraphs 18 to 20
[121]Exhibit DW 11, paragraph 21
Mr Giles thinks he may have made a third visit shortly after 3.00pm, although he cannot recall the precise time. He says that he was asked to attend by Mr Mario Tabone, the Assistant Technical Director of Boral, “to see how things were going” given that Boral’s trucks seemed to be delayed at the site. This request was, according to Mr Giles, routine.[122] At this time he observed that some concrete had fallen off each of the walls at the deep end of the pool. The amount of concrete involved was “not… large”.[123] No concrete fell while he was on site. He checked some of the fallen concrete and found “that it had the ‘stickiness’ and consistency that I expected and I did not detect any problem with it” (italics as in the original). Apart from what he described as “some light-hearted grumbling typical of construction sites”, Mr Brancatisano “did not make any complaint about the performance of the concrete supplied by Boral”.[124]
[122]Exhibit DW 11, paragraph 22
[123]Exhibit DW 11, paragraph 23
[124]Exhibit DW 11, paragraph 24
There are a number of things to be said about Mr Brancatisano’s version of events. First, it is contradicted by Mr Giles. Secondly, it is difficult to reconcile with the relevant documentation. The initial complaint was that the concrete was too dry. If Boral’s records are accurate, however, the water content of the first three loads was very close to that specified. Some five hours later, when the sixth load arrived, another complaint was made; this time, it was that the concrete was, and had consistently been, too wet. Boral’s records show the opposite. The sixth load contained 38 litres less than the specified 950 litres of water. The two previous loads, according to those records, had contained so little water, relatively, that they failed to conform even to the allowable variances from the mix design.
The third point is that Mr Brancatisano’s first complaint, namely that the concrete was too dry, is inconsistent with the later complaints that it was too wet. There no evidence that during the intervening period Mr Brancatisano made it known to Boral that the problem had shifted from one extreme to the other. At most, Mr Brancatisano says in his second witness statement that he complained to Mr Giles “a number of times throughout the day that the concrete was not up to the standard expected”[125] (my emphasis). No detail is given. Nor is this consistent with either his first witness statement, which only refers to two complaints, or his contemporaneous note, which makes no specific reference to any.
[125]Exhibit PW 11, paragraph 5.7
The fourth point is that the complaints about bleeding and falling concrete came at a time when most of the pool had been sprayed; it was then too late for Boral to do anything to check its batching process. Thus, by the time (on the Robak/Foster Hall version) that Mr Giles learned that the concrete was said to lack the required body and was not compacting, there were only two more loads to be batched and delivered. One of these (the seventh) arrived with a moisture content of 888 litres, 62 litres below that specified. The eighth, by contrast, was 46 litres over the design quantity.
Finally, Mr Brancatisano’s account of his complaints is internally inconsistent. In his first witness statement he speaks of two visits to the site by a person he described as Boral’s “plant manager”. In his second, he refers to a third visit. By this time, he had identified Mr Giles as the relevant Boral representative. According to the version set out in the second Brancatisano witness statement, the third Giles visit occurred ”at around 4.30 to 4.45 pm”. The sixth load was still on site. If so, and if the first Brancatisano witness statement is accurate, this was Mr Giles’ second visit since load 6 first arrived. In any event, Mr Giles’ evidence about his third visit (which, according to that witness, took place shortly after 3.00 pm) cannot be reconciled with that of Mr Brancatisano – which, it will be remembered, was to the effect that Mr Giles’ second attendance occurred at about 3.30, within 10 minutes of the lodging of the complaint about the sixth load.
There is another respect in which it is difficult to reconcile Mr Brancatisano’s several statements. In the document prepared by him on the day the work was done, he speaks of the concrete “arriving too wet”. He says nothing about it not having the required body. Nor does he mention its failure to compact, or its tendency “to foam up and slide off the front of the reinforcement.” Again, although there is a general complaint that the concrete was arriving too wet, it seems that it is only load 6 that was, in the words of his first witness statement, “much too wet to spray”; in the contemporaneous note, load 3 sprayed “all OK”, load 4 was sprayed with “no hold ups”, and load 5 “arrived on site, all went well.” As for load 7, it “was the right slump”, while load 8 “was sprayed…without w/time” (which presumably means “waiting time” – but in any event does not appear to be a complaint).
If a customer rang the plant to complain about a load of concrete, Mr Fletcher said that he would refer the matter to his boss, Mr Lucas Gnocchi, who would then refer it to Mr Giles, who “would probably shoot down and work out what was wrong.” If he could not solve the problem, Mr Giles would consult Mr Bowie.[126] Most complaints related to lateness of delivery. If there was an apparently valid complaint about the state of the load it would be referred for investigation to any tester who happened to be on site.[127] Mr Fletcher’s only recollection about the North Melbourne pool was that there was trouble at the site; the drivers were taking longer than usual to unload their trucks. This resulted in vehicles having to wait there.[128] He could not, however, recall receiving any telephone calls from the site complaining about the concrete.[129]
[126]T.996
[127]T.1006-1007
[128]T.1003-1004, 1008
[129]T.1005
Mr Brancatisano said that an experienced sprayer will know when rebound is occurring as he sprays, but it would fall onto the floor and not stay in the wall. He agreed that in areas of congestion, rebound might get caught in pockets on the corners. On this job, they had some of the plaintiff’s workers with brooms sweeping rebound away. The sprayer would also turn off the compressed air to lay a ribbon of concrete along the seal which was glued to the perimeter of the base of the pool. That having been done, the air would be turned on again as additional concrete was placed on top of that initial layer. A similar method was used for the top of the scum gutter.[520] During cross examination the following exchange took place:
[520]T.686-687
“Q:Is it true to say if you looked at [the photograph at CB.900012 (top)], for instance, there could be loose material from the top, from the spray at the top falling down and it might get trapped at the base of the pool behind the reinforcement ?
“A:Possibly.
“Q:But nothing was done to clear that out ?
“A:Yes, we had Robak’s men with brooms trying to keep it away.
“Q:I thought you said before they were sweeping from the floor in front of the reinforcement ?
“A:Yes, and if they saw too much from there they would naturally move it away from there.
“Q:We can’t see anybody with a broom doing anything of that sort, can we ?
“A: No, we can’t.”[521]
[521]T.689
For his part, Mr Brancatisano’s attention was, during his cross-examination, drawn to a number of stills from the video taken as he was spraying the north wall of the pool. He said any rebound from the formwork or the reinforcing would fall on the ground or “otherwise it would be compacted by the spray application … any rebound falling on the wall would be compacted.”[522] He also denied that having the nozzle some 300 or 500 mm from the wall was conducive to rebound “because you are spraying on the existing spray that you have sprayed.”[523]
[522]T.705
[523]T.706, 711
Although Mr Dugina, having watched the video, expressed the opinion that there were “a couple of little things that weren’t 100 per cent desirable” about the spraying technique, he did not think there was any problem with the spraying.[524] According to him, the nozzleman would be able to observe any rebound that was present in the region about to be sprayed. He nevertheless agreed that this would be difficult. He also said that the operator should spray the base of the wall to a height of about 50 mm for about two metres ahead of where he was working to ensure a soft surface into which any rebound could fall. He stated that he incorporated small amounts of rebound into his work,[525] although he later agreed that this “certainly” should not be done.[526] Indeed, in one of his witness statements (in reply to evidence from Mr Corcoran) Mr Dugina said that rebound is normally removed manually or pneumatically, and that he has not experienced its use in any commercial pool that he has sprayed.[527] He said that, as the sprayer worked, another operator might use compressed air to remove rebound from behind reinforcing; but he added that this was very rare. He had never used such a set up for a commercial pool.[528] Nor was compressed air used in this case.
[524]T.737
[525]T.744-746
[526]T.753
[527]Exhibit PW 13, paragraph 17.1
[528]T.752
Messrs Corcoran, Newbegin and Wallis all state that they observed continuous voids in the in situ concrete, indicative of non-continuous placing or sagging or cold joints.[529] Mr Baker explained that a “cold joint” occurs when new concrete is sprayed onto concrete that has become too hard, so that a bond cannot be formed.[530] He maintained that “there was no cold joint in the whole project regardless of the problems we encountered. On the contrary, the concrete seemed to take a long time to get a pre-set, which is unusual.”[531] Nonetheless, the evidence about the sequence used for spraying the gutter and walls of the pool suggests that it had the potential to give rise to cold joints. According to Mr Baker, the walls were first sprayed to a certain height, then the back and floor of the scupper was sprayed. This was next cut to shape, and a box formwork was placed into it. The front of the scupper could then be sprayed.[532]Mr Baker had to concede, however, that this order was not always followed. It appears that a different technique was used on the shorter walls. There, the scum gutter was sprayed first.[533] Accordingly, the top photograph at CB.900012 shows the back of the scupper being sprayed while the wall was as yet unsprayed. Mr Baker did not observe the placement of the formwork. [534]
[529]Exhibit DW 22, paragraph 37(c); exhibit DW 27, paragraph 30(c)(iii); and exhibit DW 31, paragraph 33(c)(iii);
[530]T.168
[531]T.167
[532]T.211-213
[533]T.425
[534]T.214
Mr Brancatisano gave evidence that he first sprayed the back of the gutter. The formwork was inserted after that. He next sprayed the wall from the bottom to the top. This, he said, was his normal procedure, which he used “pretty much all the way around.”[535] Later during his cross examination, however, when shown stills from the video (frames 16, 17 and 33) he said (in an account that gives an impression of a process that is more seamless than that described by Mr Baker) that at that point he sprayed the wall first, then the back of the scum gutter, then dropped in the box formwork and sprayed “the bit at the front upwards”. He appeared to acknowledge that this was a different approach to that shown in the top photograph at CB.900012; but, if there was a difference, he explained it on the basis that the photograph showed the start of the job, when it was important “to get everybody involved working, create work.”[536]
[535]T.667
[536]T.709-710
Mr Dugina said that, in order to avoid a cold joint, he would not leave concrete more than about an hour and a quarter before respraying; the exact time depended on such things as the materials used and the weather. When asked during cross examination about spraying different parts of the pool at different times, the following exchange took place:
“Q:Is there an inherent danger in spraying the scum gutter first and going and doing a wall later that you might get a situation where you have got a cold joint ?
“A:It happens. We haven’t done a lot like this where they do the formwork. You do end up getting a cold joint there, it’s basically unavoidable. That’s why, like I said, we tend to spray blind, like that photo you’ve got [Exhibit P6].”[537]
[537]T.785
When shown the photograph at CB.900012 (top), Mr Brancatisano agreed that if the method of spraying the back of the gutter, inserting formwork and then spraying the wall and front of the gutter was not performed within time, a cold joint will form in the gutter itself. This would cause leaking. However, he pointed out that the wall shown in the photograph was not long. He would, therefore, shortly return to complete spraying the front of the gutter and the wall.[538] If the alternative method (spraying part of the wall first, then the back of the gutter, trimming the gutter and inserting the formwork, then spraying the top part of the wall) was adopted, the cold joint would form on the face of the wall.[539] This is an inherent problem with spraying scum gutters in this manner.[540]
[538]T.786
[539]T.787
[540]T.789
Mr Baker had observed Mr Brancatisano performing other pool jobs. These, however, involved walls only one metre high. There, Mr Baker saw Mr Brancatisano use the same technique that he employed for the shallow end of the formal pool - namely, to spray the scum gutter first and then the wall.[541] The plaintiff also submitted that if the spray technique was at fault, one would expect that similar problems would have occurred in the leisure pool, which was sprayed by Foster Hall on 17 October 1995. The height of the leisure pool matches the height of the shallow end of the formal pool. There was no evidence of any problems. Mr Wallis insisted that there were subtle differences between the reinforcement design of the two pools, and the circumstances in which the two pools were sprayed, that could explain this situation.[542] He evidence on this point was not particularly persuasive. He also had to concede that, not being a structural engineer, he could not speak with authority about the differences in reinforcement.[543]
[541]T.425
[542]T.2012-2015, 2028-2036
[543]T.2035
The evidence on this aspect of the work on the formal pool is significant. In my opinion, it raises substantial questions about the adequacy of Foster Hall’s spraying technique. When allied to the results of the infra-red tests, I find that the conclusion that Boral is responsible for the defects in the formal pool is not, on the balance of probabilities, open.
Reinforcement
Placement and Configuration
The Recommended Practice published by the Concrete Institute of Australia provides a number of recommendations about the placement of reinforcement. It notes that reinforcement should be designed and situated so as to cause the least interference with concrete placement: small diameter bars (with 16 mm bars being “the normal maximum size”) should be used and “[s]ufficient clearance should be provided around the reinforcement to permit complete encasement, with the required clearance depending on the maximum size of the aggregate in the mix and the size of the reinforcement.”[544] Where two or more layers of reinforcement are to be sprayed, “the outer layer should not be fastened directly in front of the back layer but should be staggered to enable the back layer to be sprayed in without interference.” Where possible, horizontal bars should not be spliced or laid together but rather lapped with spaces at least 50 mm apart. A number of diagrammatic examples of correct and incorrect configurations are then provided.[545]
[544]Exhibit DW 25, Annexure “F”, page 20
[545]Exhibit DW 25, Annexure “F”, page 20, Figures 17 (d) (incorrect) and 17 (e) (correct)
Mr Baker gave evidence that while the original pool design contemplated a poured structure, it was open for the plaintiff to construct the pool using either poured or sprayed walls. He agreed that the drawings produced were only in respect of poured walls.[546] However, in a witness statement he insisted that the formwork and reinforcement for the formal pool walls were “modified in order to suit the spraying technique”.[547] These modifications were discussed at site meetings with the engineer, who made the appropriate inspections and indicated satisfaction with the arrangements. Nor were any non conformance notices issued in relation to formwork or reinforcement.[548] The modifications meant that the formwork and reinforcement as installed “differed in material respects” from the specifications in that: (a) an outer formwork only was constructed; (b) a “dumbbell” water stop was replaced by a hydrophyllic one; and (c) the upstand of concrete to hold the dumbbell water stop was deleted.[549] Mr Baker also gave evidence during cross examination that the back reinforcement bars to the scupper drain were not placed directly behind the bars in the walls but, rather, were offset.[550] Although he agreed that this would mean that there were 16mm bars “more or less side by side” giving a total width of over 30mm, he disagreed with the proposition that the result would “cause more trouble from the spraying point of view than putting them one behind the other.”[551]
[546]T.128
[547]Exhibit PW 2 (paragraph 19(1))
[548]Ibid (paragraph 19(2) and(3))
[549]Ibid (paragraph 5(1))
[550]T.153-4
[551]T. 156, 209
During cross examination two photographs of the short east wall were put to Mr Baker. It was suggested that they pictured congested reinforcing.[552] However, the evidence of Mr Tongue, who conducted the infra red scan of the walls, was that he detected no defects on the corner of the pool shown in those photographs (ie. the southern corner of the pool).[553]
[552]Photographs at CB.900010 (bottom photo) and CB.900012 (top photo)
[553]T.619
Mr Baker agreed that in this case the reinforcement had been spliced rather than, as recommended, lapped with at least 50 mm spaces. He maintained that there was no way around this; he pointed out that the Recommended Practice said spaced lapping should occur “where possible”.[554] He did not think it necessary to modify the pool design. Where congestion did occur, the sprayer should take greater care.[555] He gave evidence that he had a hand in overseeing the placement of the reinforcement and had given general guidelines for that purpose. He therefore agreed that responsibility for any unnecessary congestion in the reinforcement would have to be borne by him.[556]
[554]T.197
[555]T.199
[556]T.304-305
In response to criticisms by Mr Corcoran about the placement of the reinforcement, Mr Baker said that the splicing arrangements and placement were standard and that reinforcement bars were not placed directly behind each other but rather offset. He asserted that the same failings appeared in both the walls and in the scum gutters notwithstanding that the former had two layers of reinforcing, while the latter had only one[557]. During cross examination, however, he conceded that the walls had a single layer of reinforcing[558]
[557]Exhibit PW 2 (paragraph 6(3))
[558]T. 152
Mr Dugina gave evidence that in his experience congestion of reinforcement in commercial pools is normal; but when a high quality concrete is used, there are few problems.[559] Having viewed the video, he thought the reinforcement and formwork he could see “was acceptable and standard for a concrete spraying operation.” The placement was the same as, or similar to, that used in commercial pools he has sprayed. As such, he did not think it caused the problems; instead he thought that they were the result of bleeding.[560]
[559]Exhibit PW 13, paragraph 17.2
[560]Exhibit PW 15, paragraphs 16 and 17
In their report prepared for the Melbourne City Council in March 1996 Beca Simons said:
“Reinforcement layout was essentially dictated by AS 3735 which requires minimum areas of steel and places emphasis on small diameter bars although this obviously requires closer spacing. The bar size, spacing and lap methods used is typical for a pool of this depth and has been used many times in both in situ and sprayed concrete constructions, including both these pools at North Melbourne, without known problems relating to achieving adequate compaction around bars. The lap splices in all these pools have been standard ie with the lap bars touching each other. CSC [Corcoran Shepherd Consultants] have mentioned in their report a recommended practice for leaving a space between the actual splice bars to facilitate encasement. While ideally preferred, in our experience, the majority of contractors continue to lap bars in sprayed concrete by the standard method.”[561]
[561]CB.120075
Mr Bowie was shown this passage from the Beca Simons report. He nonetheless expressed the view that Boral could not be held responsible if the spacing of the reinforcement bars was such that concrete, although batched and delivered in accordance with Boral’s obligations, could not flow around them – and if voids were created thereby.[562] This must be so. The question is whether, in the case of the North Melbourne pool, this was a cause of the leakage. Clearly, the argument that the configuration was standard does not necessarily assist the plaintiff’s case; but it may have some bearing on the allegation of contributory negligence raised by Boral.
[562]T.1361
In his report dated 16 February 1996 Mr Franceschini observed “several examples where the degree of compaction of concrete around the reinforcement bars was poor, particularly where the reo [ie. reinforcement] was ‘massed’.”[563] He did not identify with precision where he observed this phenomenon. Later in the report he concluded:
“There is evidence of failure to fill all gaps behind the reinforcing cage in several locations, and the method of application must be questioned in this respect.
“The incidence of incomplete compaction is greatest in the vicinity of congested steel reinforcing.”[564]
He confirmed during cross examination that this was something he observed himself.[565]
[563]CB.500152
[564]CB.500168
[565]T.558
In an additional report dated 16 July 1996 Mr Franceschini again noted:
“[n]umerous examples of poor coverage and/or compaction of the concrete … in and around reinforcing bars, particularly where:
(a)an adjacent zone of unmixed material was present ie. paper bag chunks, raw uncoated aggregate, paste rich zones
(b)multiple reinforcing bars were present.”[566]
He also noted that “[v]ery poor areas of compaction in the corners of gutters at points furthest away from the spraying zone were commonplace around the structure.” [567] However, the areas of well compacted and poorly compacted reinforcement appeared to be random: “they were not necessarily dictated by the height of the wall, proximity to corners, or likely separate batch zones of concrete …”.[568] Again, he confirmed that these remarks were based on his own observations.[569]
[566]CB.600088
[567]CB.600088
[568]CB.600089
[569]T.558
Mr Newbegin viewed the video of the walls being sprayed and the video of the demolition of the walls (which I take to be exhibit P4). Having done so, he expressed the opinion that there was “considerable congestion” of the steel reinforcement at the pool. He identified:
“(i) Placement of bars alongside other bars on both the horizontal and vertical alignments;
(ii)Vertical reinforcing bars as close as about 100mm apart;
(iii)Placement of bars immediately behind other bars;
(iv)Instances of what appear to be up to four bars on the same plane;
(v)Inappropriate placement of reinforcement in front of and behind pipes.”[570]
[570]Exhibit DW 29, paragraph 9(a)
Mr Newbegin gave evidence that he found voids in the vicinity of the reinforcing steel which caused leakage. He believed that these voids were the result of the nature and placement of the formwork and the reinforcement, together with the application of the concrete.[571] Mr Wallis gave identical evidence.[572] Mr Corcoran said the detailing of the reinforcement would not ensure good shot-creting compaction, with the result that there were many voids behind it.[573] He also found sandy patches and poorly compacted concrete behind the reinforcing steel, especially where there were several adjacent bars.[574]
[571]Exhibit DW 27, paragraph 13
[572]Exhibit DW 31, paragraph 13
[573]Exhibit DW 22, paragraph 14
[574]Exhibit DW 22, paragraph 17
Mr Newbegin agreed in cross examination that a degree of congestion in reinforcement cannot be completely eliminated.[575] Mr Wallis gave evidence to the same effect.[576] Mr Newbegin also identified lack of adequate ties which would have led to significant movement in the reinforcement during spraying. [577] He confirmed during cross examination that, having viewed the video again, he thought the reinforcement had been inappropriately installed.[578] Although he agreed that he is not an expert in formwork or reinforcement, he said he was qualified to inspect it and did so from time to time.[579] Mr Wallis identified in the photograph at CB.900010 (bottom) “some very, very long splices” that were longer than expected given the diameter of the bars, making it “very congested”.[580]
[575]T.1805-1806, 1855
[576]T.1997
[577]Exhibit DW 29, paragraph 9(b)
[578]T.1856-1857
[579]T.1879
[580]T.2036
As with the evidence about Foster Hall’s spraying technique, that concerning the reinforcement is sufficiently indicative of inadequacies in that area to strengthen the proposition that the plaintiff’s burden of proof has not been made out.
Coating on Reinforcement
Another issue raised by Boral’s experts is the presence of cementitious material, appearing as a grey coating, on parts of the reinforcement. This, according to Boral, would have prevented proper bonding with the concrete. Boral asserts that such material can be seen in two of the photographs taken on 27 September.[581] Mr Baker during cross examination claimed that this was sunlight on the bars.[582] I reject this claim.
[581]Photographs at CB.900010 (bottom photo) and CB.900012 (top photo)
[582]T.203-204, 207
Nonetheless, Mr Baker gave evidence that the presence of a cement coating on the reinforcement as a result of overspray is acceptable. This, he said, is because the nature of cement is such that, on contact with water, a chemical reaction occurs. So, in the case of pool mix, which is designed to be cement rich, hairline cracks that form can self-seal as water comes into contact with the cement.[583] Presumably this means that when wet concrete comes into contact with the cement coating in circumstances where the ordinary chemical action has not been fully expended, the water will react with the cement to create a bond.
[583]T.435-437
Mr Brancatisano shared Mr Baker’s view about the presence of what he characterised as “slurry”.[584]
[584]T.685
The Strength of the Concrete
Boral alleged that it was not told what strength the concrete should achieve: the specification which it received did not contain any such requirement. Particulars contained in a drawing entitled “Plant Room General Notes” (drawing No. 5301-00-2-200) did refer to a strength of 40 MPa for concrete for water retaining structures,[585] but that information was not conveyed to Boral. Mr Bowie maintained that Boral did not guarantee that the concrete would attain any particular strength, although he would have expected this concrete to have reached 40 MPa.[586]
[585]CB.300018, item 4.2
[586]T.1344
In this context I have regard to the evidence of Mr Lucas Gnocchi. By September 1995 he had been working at Boral’s North Melbourne plant for about five or six months. His duties included taking customer orders for concrete. He gave evidence that the MPa would be specified, or, at the least, the customer would specify the cement content from which the strength could then be calculated.[587] Mr Joseph gave evidence that Pioneer sold concrete by type, identified by the cement content, rather than by strength.[588]
[587]T.1117
[588]Exhibit DW 6, paragraph 3
The test conducted by Pioneer on load 2 showed a strength of 43.5 MPa after seven days and 53.5 MPa after 28 days,[589] while the Boral test showed strength of 39.5 MPa at seven days and 54.5 MPa at 28 days.[590]
[589]CB.400108
[590]CB.400107
Mr Baker pointed out that the strength tests conducted on cylinders of concrete taken by Pioneer and Boral from load 2 should be distinguished from strength tests carried out on core samples taken later from the walls of the pool. Cylinders are 100 mm in diameter. The concrete is extracted from the back of the truck by the tester on the day of the spray. They are then tested after 7 and then after 28 days. The core samples, however, were drilled out of the walls some time later and then tested. Different sets of criteria apply.[591]
[591]T.454-455
Mr Franceschini gave evidence that cylinder tests are “notoriously unreliable”.[592] The concrete taken from the back of the truck is compacted into the cylinder, thereby giving “the best possible answer you could get for a particular concrete.” He argued that the test of the plastic concrete may not therefore represent the in situ product; instead it determines whether the product is capable of achieving its proper qualities if placed properly. He agreed, however, that the samples extracted were sufficiently representative. From them, one could determine the mix of material in the barrel of the truck before it was sprayed.[593]
[592]T.510
[593]T.511
The tests for strength on the various core samples showed that the results ranged from 9.5 MPa to 50 MPa. Mr Newbegin asserted that nothing of relevance can be read into these figures. The variation may be due to poor compaction resulting from poor technique in spraying. Indeed, that conclusion is at least as open as the conclusion that Robak seeks to draw – namely, that the fault lay in Boral’s hands. I agree. Accordingly, it seems to me to be impossible to rely upon the results of strength testing as supporting the plaintiff’s case.
Conclusions
As the plaintiff in this proceeding, Robak bears the burden of proof. The standard is that applicable to civil actions: that is, the balance of probabilities. Robak has alleged three causes of action against Boral. They are in negligence, for breach of the Trade Practices Act, and for breach of a collateral contract. The plaintiff will succeed if it proves on the balance of probabilities that each element of any one of those causes of action is made out.
All three causes of action arise out of the project to redevelop the North Melbourne swimming pool complex. One aspect of that project was the construction of a formal pool. Its walls were to be made of concrete supplied by Boral; and those concrete walls were to retain, as much as such structures generally do, the water with which the pool was filled.
On its completion, the formal pool failed to meet this most basic requirement. On the contrary, it leaked, unacceptably. Robak blames Boral. Each of Robak’s three causes of action seeks to make good that attribution of blame. All three therefore depend for their success on my being satisfied on the balance of probabilities that Boral failed to supply concrete which when properly used in the construction of the walls of the formal pool was, for material purposes, impermeable.
I take first the alleged breach of a collateral contract. It suffers from a particular problem. It depends upon the plaintiff establishing that it entered into a contractual relationship with Boral; and that, in turn, cannot be done unless Robak proves the relevant contractual intention. No facts tending to that conclusion have been pleaded, let alone proved. In any event, the contract upon which Robak must rely if it is to succeed in this cause of action is one in which Boral promised Robak that it would supply to Foster Hall concrete of a specified quality if, for its part, Robak required Foster Hall to engage Boral as Foster Hall’s supplier of concrete for the formal pool segment of the project. Yet the statement of claim contains no specific allegations which meet this aspect of the case. It merely alleges that - in consideration of certain representations made by Boral concerning, first, Boral’s capacity as a supplier of concrete and, secondly, the quality and attributes of this material - Robak instructed Foster Hall to purchase concrete from the defendant. There is no clear allegation that that instruction was given in fulfilment of any contractual obligation owed by Robak to Boral.
Indeed, the statement of claim fails at another level to allege the elements of this cause of action. It pleads certain communications between Robak and Boral, but none which involved the formation of a contract. Nor was any evidence called on this point. On the contrary, the evidence was to the opposite effect: far from Robak insisting on the use of Boral product, it was Foster Hall that persuaded Robak to allow the substitution of Boral for another supplier – Pioneer – that the plaintiff had originally favoured. In other words, the evidence did not even go so far as the pleading, let alone cover the deficiencies of that document. This cause of action therefore fails.
I am prepared to assume for the sake of the present analysis that causes of action in negligence and under the Trade Practices Act are open as a matter of law, and have been adequately pleaded. The central issue remains: has Robak proved on the balance of probabilities that the problems with the pool were the result of poorly mixed concrete supplied by Boral? The search for the answer has necessitated an exhaustive examination of the evidence. The steps taken in the course of that examination are set out above. It is now incumbent upon me to draw the appropriate conclusions.
The first point to make is that there has been no criticism of the Boral mix design. Robak’s criticism is that Boral failed to supply product that met the design.
Robak does not allege that the mix of each batch was incomplete, save that some loads failed to include Kaolite (or, in other words, fly ash). On the other hand, Robak positively asserts that a number of batches, at the least, contained when delivered not only Kaolite, but also portions of the bags in which that material was originally packed. I find that this assertion is made out. It is therefore necessary to ask whether there is any evidence to establish that other batches contained no fly ash at all.
There is no direct evidence to that effect. No witness said that a particular load had departed the plant without its specified quantity of this material. The conclusion to which Robak would have me come is accordingly one that, at best, is based on circumstantial evidence. But, in my opinion, the necessary implication cannot be drawn. The burden of proof simply has not been overcome.
Robak next alleges a failure in Boral to batch the appropriate amounts of water. That failure must, on Boral’s own records, be acknowledged in respect of loads 4, 5, 6 7 and 8 (loads 1,2 and 3 were, according to these records, within the allowable bounds of variance). On the other hand, Robak alleges that each of these loads were too wet on delivery. Save for load 8, which Boral’s figures show to have contained an excess of 46 litres above the design allowance, none of the batches could on Boral’s records have fallen into that category. On the other side of the ledger, Mr Jenkins gave evidence that load 6 arrived “obviously wet”. Yet, in his contemporaneous note, Mr Brancatisano said of that load only that it “Sprayed…all OK.”
The direct evidence is that water was on occasion added at site and at the request of Foster Hall. I am inclined to the opinion that such addition was effected as a matter of routine by sprayers who were intent on getting the job done as quickly as possible. If this meant the insertion of extra water into a load assumed to be too dry rather than too wet, so be it. But I do not need to go so far. I am not satisfied on the balance of probabilities that, on delivery, any batch save load 8 contained more water than was within the allowable tolerance. As for the last load, it was sprayed without waiting time, and without any other observable difficulty except that, in conditions becoming colder and darker as evening fell, it took “a bit long to go off”.
Robak alleges that concrete fell off the walls, or some of them, after being sprayed on. I accept that that was so. I also accept that an excess of water in the spray was the cause. Boral, however, was not responsible for that excess. Foster Hall was. Boral is therefore (in its relations with Foster Hall) covered by the provision in its contractual arrangements with that company which relieves Boral of any liability for resultant defects. Not only that, but I am not satisfied that any relevant defect, apart from some sagging which contributed to the number of voids, was the consequence of an excess of water. In my opinion, the principal weakness in the walls was detected by the infra-red testing, which revealed a lack of proper compaction at the base of the walls and the scum gutters. That defect was, in my opinion, caused by defective spraying or defective formwork or defective reinforcement – or some combination of these. This, in turn, had the consequence that rebound, or vibration, or problems with the formwork or reinforcement (such, for example, as congestion in the placement of the reinforcement) prevented proper settlement and compaction of the concrete in its vicinity – and, thereby, the creation of voids.
I recorded in paragraphs [29] and [32] above that Robak in its statement of claim alleged a breach by Boral of a duty of care which it owed to Robak. Boral ought, according to this segment of the pleading, to have warned Robak of deficiencies in the form work, the reinforcement, the set-up of the construction site or the proposed method of application. I reject that argument. In my opinion, any duty of care which Boral may have had towards Robak did not extend to the giving of such warnings. It would simply not be reasonable in the circumstances that obtained in this case to impose on a supplier of concrete a duty of the kind for which Robak contends. Boral manufactures concrete for use by others. It does not generally, and did not in this case, hold itself out as in a position to offer advice about the issues to which the statement of claim refers. Nor did Robak lead any evidence to suggest that it sought such advice, was given it whether sought or not, or - having received it - relied on it.
Robak submitted that the various constituent elements of the batches were not adequately integrated (or, in other words, mixed) by the time the delivery trucks arrived at the site. There is a difficulty with that submission. It is that, even were I satisfied that this was an occasional defect, I cannot be satisfied that it occurred with such frequency as to explain any leakage, let alone the widespread leaks to which the completed pool was subject.
This leads me to a more general difficulty for the plaintiff. The very fact that the pool leaked so extensively indicates either that each batch of concrete was defective, or that its treatment and application by Foster Hall after delivery was the problem. The evidence, in my opinion, points to the latter conclusion. Certainly, I cannot be satisfied on the balance of probabilities that Boral is to blame. Accordingly, there must be judgment for the first defendant.
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