Roberts v Queensland Building and Construction Commission - [2014] QCAT 253

CITATION:

Roberts v Queensland Building and Construction Commission [2014] QCAT 253

PARTIES:	Anthony Mark Roberts (Applicant)
v
Queensland Building and Construction Commission (Respondent)

APPLICATION NUMBER:

GAR120-13

MATTER TYPE:

General administrative review matters

HEARING DATE:

7 May 2014

HEARD AT:

Brisbane

DECISION OF:

Member Gardiner

DELIVERED ON:

11 June 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The decision of the Commission dated 21 March 2013 disallowing Mr Roberts’ claim under the statutory insurance scheme is set aside.

2. The claim under the statutory insurance scheme is allowed.

3. Mr Roberts will file in the Tribunal two (2) copies and give to the Commission one (1) copy of any written submissions and any supporting documentation in relation to his costs application by: 4:00pm on 27 June 2014.

4. The Commission will file in the Tribunal two (2) copies and give to Mr Roberts one (1) copy of any written submissions in response, by: 4:00pm on 7 July 2014.

5. Mr Roberts will file in the Tribunal two (2) copies and give the Commission one (1) copy of any submissions in reply, by: 4:00pm on 21 July 2014.

6. The application for costs will be determined by the Tribunal on the papers without an oral hearing not before 22 July 2014.

CATCHWORDS:

BUILDING – REVIEW – Decision of Commission to exclude claim under statutory insurance scheme – WHERE deck falling into river – WHERE two experts have different views as to cause of movement – WHERE one expert must be preferred – WHETHER movement caused by subsidence or landslip

Queensland Building and Construction Commission Act 1991 (Qld)

Loveday v Renton and Wellcome Foundation Ltd [1990] 1 Med LR 117 followed

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr B Kidston of counsel

RESPONDENT:

Ms C Farthing In-house solicitor

REASONS FOR DECISION

In October 2007, Mr Anthony Roberts purchased a house which backs onto the Caboolture River.
The house has a rear patio, which faces the river and is built partially over a bank sloping down to the river. The deck was built prior to Mr Roberts purchasing the property.
In September 2008, Mr Roberts made a complaint to the Queensland Building and Construction Commission that the patio was disengaging from the house and sagging down the slope towards the river.
Investigations were undertaken by the Commission at the time in the presence of the builder and the homeowner. The Commission directed the builder to rectify the defects in the patio. Some work was undertaken by the builder to satisfy these requirements.
Although in November 2009, the Commission advised the homeowner that the work undertaken by the builder to rectify the patio (after their inspection) was satisfactory, unfortunately this did not solve the problem.
On 6 September 2012, the Commission received a second complaint from Mr Roberts as in his view, the patio continued to move away from the house down the slope.
Mr Hughes a structural engineer of Hughes Beal and Wright Pty Ltd Consulting Engineers provided a report to the Commission dated 22 January 2013.
In essence, this report opines that the reason that the deck is moving away from the house is landslip of the riverbank. Mr Hughes says since his second visit to the property in 2009 that there had been substantial rains and floods in late 2010 early 2011 in South East Queensland and that in his view, such an event in the adjacent Caboolture River could easily have triggered movement of the slip again. Mr Hughes opines that because of the instability of the riverbank there would appear to be no permanent solution to the rectification of the patio footing and the stump movement.
The Commission again inspected the deck in October 2012 and Mr Chris O’Shannessy a building inspector provided an inspection report to the Commission. A further report was provided in January 2013.
By a letter dated 1 February, the Commission directed the builder to again attend to rectification of the patio. No further work was undertaken by the builder.
A claim was made by Mr Roberts under the Commission’s statutory insurance scheme to rectify the work not attended to by the builder.
In a letter to the solicitors for Mr Roberts dated 21 March 2013, the Commission declines to allow the claim under the insurance scheme saying that clause 5.4(f) of the then policy (Edition 6) of the insurance scheme stated that the insured is not entitled to payment for loss where the loss is caused by or contributed by landslip.
On the basis of Mr Hughes’ report, the Commission contends that the deck is moving away from the house because of landslip into the Caboolture River.
Mr Roberts takes a different view. He has had Mr Brett Egen another geotechnical engineer from Douglas Partners Pty Ltd undertake a report on the reason for the sagging of the patio.
In Mr Egen’s view, the deck is moving away from the house not because of landslip but because of subsidence in the uncompacted fill into which the peers of the patio have been placed. Mr Egen does not believe the cause of the sagging of the deck is landslip.

Experts Conclave

Under the QCAT Practice Direction No 4 of 2009, a joint report is required from the two experts where there is agreement. A conference was held in this matter and no joint report was forthcoming, as the experts could not agree on why the movement and damage to the rear patio had occurred.
In essence again, the applicant’s expert Mr Egen considered the cause of the movement and damage as subsidence and maintained his opinions in his reports to Mr Roberts and the Commission’s expert Mr Hughes considered the movement and damage as landslip and maintained his opinions in all reports to the Commission.

Witnesses

Apart from Mr Hughes and Mr Egan, evidence was adduced from two other witnesses, Mr Roberts (the homeowner) and his neighbour Mr Worner.
Mr Worner constructed a viewing platform on his own property in 2009. Mr Worner spoke of the earthworks involved in this construction and the need to set the required concrete footings in solid ground rather than in unreliable relatively loose fill created by forming an earlier working platform.
Mr Worner opined that to date he has not observed any sign of subsidence or movement or any other adverse development in his viewing platform.
Mr Worner has no interest in the outcome of this hearing. He is Mr Robert’s neighbour and his evidence is confined to the structure on his own land. Although proximate, the blocks cannot be exactly the same and Mr Worner’s evidence, while supportive, cannot conclusively prove anything about Mr Robert’s block.
Mr Roberts says he is himself an experienced builder with over 50 years in the construction industry. As a partner in a building firm, he specialised in commercial and domestic projects and extensive experience on construction projects similar in nature to the one in question.
Based on his experience, Mr Roberts contends the damage results from subsidence because the footings have been embedded in “uncontrolled fill” which is affected by subsidence and settlement.
Of course, Mr Roberts has an interest in this view being accepted. This interest is acknowledged but overall, the Mr Roberts was found to be a truthful witness, giving his evidence base on his own experience in the building industry.

Issue for the Tribunal

The issue for the Tribunal is to form its own view as to the correct position having regard to the conflicting expert evidence. This is because the evidence is just so extraordinarily different.
This is important to Mr Roberts because if I am satisfied that the movement and damage is landslip, Mr Roberts’ claim must remain outside the statutory scheme. However if I am satisfied the cause of the movement and damage as subsidence then this damage is covered by the statutory insurance scheme.
The Queensland Building and Construction Commission Act 1991 (Qld) establishes a statutory insurance scheme administered by the Commission under s 67X of that Act. As referred to above, the particular insurance policy in this matter at clause 3.1 provides that the Commission will pay for the cost of remedying subsidence or settlement damage to a residential construction work that is primary building work. For the purposes of the policy “subsidence or settlement” means the movement of the foundations of a residential construction work which adversely affects the structural adequacy or serviceability performance or functional use of that work.
Again the same policy at clause 5.4 specifically excludes the insured for payment of loss where the loss is caused by or contributed to by landslip.
Both parties agree that if the damage is caused by subsidence or settlement, then the insurance policy covers Mr Roberts.
Although there is a definition of subsidence or settlement under the policy there is no definition of landslip.

Assessing the Evidence

It falls to this Tribunal to make a decision in circumstances where the evidence of both of the geotechnical engineers, even on some very basic engineering concepts, is totally at odds.
Mr O’Shannessy the decision maker for the Commission has based his decision on the evidence of Mr Hughes. If Mr Hughes evidence is not to be preferred, then it follows that Mr O’Shannessy’s decision should be reviewed in light of the evidence of Mr Egen.
It is therefore necessary to consider the credentials, experience and methods of each of the experts.
In the English decision of Loveday v Renton and Wellcome Foundation Ltd[1] Lord Justice Stuart-Smith comprehensively sets out his indicia for the evaluation of conflicting expert evidence. His Honour first comments that the mere expression of a belief or opinion, however eminent, does not suffice and the court must evaluate the witness and the soundness of his opinion. His Honour lists his criteria as follows:
[1][1990] 1 Med LR 117 at 125.
·        An examination of the reasons given for the opinion and the extent to which they are supported by the evidence
·        The internal consistence and logic of the evidence
·        The care the expert has taken in considering the subject and presenting is evidence
·        The precision and thought demonstrated by the answers
·        How the witness responds to searching and informed cross-examination
·        How the witness faces up to and accepts the logic of a proposition that is put in cross-examination or is prepared to concede points seen to be correct
·        The extent to which a witness has conceived an opinion and is reluctant to re-examine it in the light of later evidence
·        Whether the witness demonstrates a flexibility of mind which may involve changing or modifying opinions previously held
·        Whether a witness is biased or lacks independence
·        The demeanour of the witness while giving evidence (although His Honour places less weight on this last criterion).
Mr Hughes is a qualified structural engineer having completed his Bachelor of Engineering – Civil from the University of Queensland in 1965. He is a registered professional engineer of Queensland, a chartered professional engineer and a fellow of the Institution of Engineers of Australia.
Mr Hughes is the director of the company Hughes, Beal and Wright Pty Ltd Consulting Engineers where he says he has worked as a structural and geotechnical engineer for over 30 years. Mr Hughes also holds an open builder’s licence in Queensland.
Mr Egen is a qualified geotechnical engineer with a Bachelor of Engineering – Civil from the Queensland University of Technology in 2003 and a Masters of Engineering Science in geotechnical engineering from the University of New South Wales in 2008.
Mr Egen is a registered professional engineer in Queensland, a member of the Institute of Engineers of Australia and a member of the Australia Geo Mechanics Society. The Masters of Engineering Science Geotechnical is a specialist geotechnical qualification.
While Mr Hughes says he has had over 30 years experience in landslip he has not undertaken postgraduate studies in the area. The basis of his competence is his work as a general consulting engineer and his experience from the mid 70s to the mid 90s in canal developments which he says involved an understanding of landslip.
Mr Egen has undertaken postgraduate work in the geotechnical area of soil and slope instability as well as a landslip hazard course through New South Wales Department of Transport. He has worked, he says, solidly as a geotechnical engineer for 12 years moving from a graduate engineer to now a consultant with the firm that employs him.
On Mr Egen’s evidence, he is highly specialised in a specialist firm that solely does geotechnical work. Mr Hughes has considerably more experience long term than his colleague and has a wider and more varied practice as an engineer.
Mr Hughes comes from a small consulting firm, which he admits has no formal quality assessment in the reports that he produces. It is clear from an examination of Mr Egen’s report that his work was reviewed and extensively checked by Mr Andrew Middleton another consultant within the firm before it was released. This quality assurance aspect does show that there has been some independent review of the work done by Mr Egen.
It was a surprise to this Tribunal that these men differed on just about every aspect of their work. As can be seen from the joint report filed, there was not one part of these reports on which these men agreed.
Under cross-examination, it became clear that much of the opinion given by Mr Hughes was not measured or tested by him on site. Mr Hughes relied on his experience in the past, and some of Mr Egen’s data on observations which in some cases could have alternative explanations. For example, Mr Hughes’ identification of tension cracking around the side of the trench under the deck could also reasonably be explained by either the sides of the trench themselves moving or human foot traffic past the particular side of the trench.
Mr Hughes also pointed specifically to desiccated cracking and scarping lines in the evidence he gave concerning what he considered to be landslip. Under cross-examination, it appears that there were many desiccated cracking lines in many directions. Mr Hughes’ reporting concentrated on the lines that appeared to support landslip rather than soil subsidence.
Overall the regional geology of the area from existing aerial photograph was considered along with the drilling of three bore holes sufficiently proximate to the supports of the deck to be relevant to the investigation. Visual and tactile samples were also collected for laboratory testing.
A flood history of the Caboolture River was obtained and it appears that in the period that Mr Hughes relies on as saying that there had been substantial rain and floods to the Caboolture River the movement observed in the peers could also be explained by shrink-swell movements associated with the seasonal moisture changes.
The river toe that Mr Hughes refers to was not immediately apparent to either Mr Egen or Mr Roberts.
I will not deal with the engineering reports of Mr Hughes and Mr Egan in detail as they each speak for themselves. Fundamentally they are supportive of their respective conclusions.
Based on the criteria listed above, this Tribunal found in assessing the two experts that of the expert evidence:
·        Mr Egen’s was more comprehensively supported by testing and external expert reporting
·        Mr Egen’s reports were internally constant and logical
·        Mr Egen’s took care in his reporting (it had been internally reviewed within his company) and presenting his evidence (testing and external authorities were supplied)
·        Mr Egen responded thoughtfully to cross-examination whereas Mr Hughes tended to be more dogmatic is relying on his views of the cause of the damage
·         Mr Hughes was more reluctant to re-examine his opinion in light of the testing provided by Mr Egen and continued to base his views on his own experience and observations rather than external testing or other expert works. This led this Tribunal consider that overall, Mr Hughes was less flexible than Mr Egen when considering changing or modifying his opinions previously held
·        Neither witness was found to be biased or lacking independence and little weight was given to the demeanour of each expert while giving evidence.

Discussion

Both experts filed a number of reports. Each of the reports refers to the earlier report of the other expert and attempts to explain or criticise the comments within the opposing report.
Mr Egen’s report is very comprehensive and gives considerable time and effort to stability analysis, fill investigation and an examination of the foundations of the patio.
This Tribunal accepts that both experts gave considered evidence. This is a case however where experts truly differ and can only agree to disagree.
Overall this Tribunal is satisfied that Mr Egen’s report provides more weight of authority with testing, sampling and technical referencing than does Mr Hughes who, despite his experience, relies solely on his own observations.
Mr Egen’s work was independently verified by another consultant and is independently referenced with testing sampling and observations.
Mr Egen’s report is supported by Mr Roberts who has extensive building experience. Mr Robert’s evidence must be discounted by the fact that he is the applicant and Mr Egen’s reports supports the outcome he is looking for but I have accepted Mr Roberts as a truthful witness, giving his evidence base on his own experience in the building industry.
Mr Egen’s report is also supported by Mr Worner’s experience when building on his adjacent block although it is accepted that Mr Worner’s evidence is confined to the structure on his own land.
Having regard to these considerations, this Tribunal prefers Mr Egen’s evidence over that of Mr Hughes in this matter.
This conclusion that the movement is the result of subsidence is consistent with the observations of Mr Roberts and Mr Worner’s experience on his adjacent land.
Mr O’Shannessy relies on Mr Hughes. There is no evidence, apart from the differing views of Mr Hughes, which contradicts the opinion of Mr Egan or is inconstant with it.
I am satisfied therefore that the movement in the piers of this patio are the result of subsidence not landslip.
Based on this finding, the Tribunal is further satisfied that this damage is encompassed by the statutory home warranty scheme and the decision of the decision-maker should be set aside. The claim by Mr Roberts under the statutory compensation scheme should be allowed.
Mr Roberts has made an application for costs. I will make directions for the filing of submissions by the parties in support of this application.