VULIN and BAMBOOZLE (WA) PTY LTD T/AS BAMBOOZLE
[2014] WASAT 55
•30 MAY 2014
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA)
CITATION: VULIN and BAMBOOZLE (WA) PTY LTD T/AS BAMBOOZLE [2014] WASAT 55
MEMBER: DR B DE VILLIERS (MEMBER)
MR P MITTONETTE (SESSIONAL MEMBER)
HEARD: 7 MAY 2014
DELIVERED : 30 MAY 2014
FILE NO/S: CC 1719 of 2013
BETWEEN: EMIL VULIN
JENNIFER VULIN
ApplicantsAND
BAMBOOZLE (WA) PTY LTD T/AS BAMBOOZLE
Respondent
Catchwords:
Building dispute Balance of probabilities Capillary action of water Causation of damage to bamboo flooring Moisture level in concrete
Legislation:
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5(1)
Building Code of Australia
Result:
Application dismissed
Summary of Tribunal's decision:
This dispute concerns the question of whether the respondent is liable for water damage to bamboo flooring in the residence of the applicants. The applicants, while carrying out renovations to their home, entered into a contract with a builder to do building work, including the pouring of concrete for a new extension that abuts the concrete floor slab of the existing residence. The applicants then entered into a separate contract with the respondent to lay a bamboo floor over an area that covered the old and new concrete slabs. Water damage appeared on the bamboo flooring in the area where the old and new concrete slabs abut. The applicants alleged that the respondent is liable.
The applicants contended that the respondent: (a) failed to properly test whether the moisture level in the new concrete slab was such that the bamboo flooring could be laid; (b) that the respondent failed to apply a sealant prior to laying the bamboo flooring; and (c) that the damage to the bamboo flooring was as a result of residual moisture within the new concrete slab that would have been detected had the respondent conducted a proper test.
The respondent replied that it: (a) carried out a proper test of the moisture level in the old and new concrete slabs; (b) that there is no industry requirement for a sealant to be applied before bamboo flooring is laid, provided the concrete is dry enough; and (c) the damage caused is not as a result of residual moisture, since other possible causes of moisture ingress had not been adequately investigated.
The Tribunal found that the respondent did not conduct a moisture test in the manner it said it had, before the laying of the bamboo floor. This, in itself, does not mean that the respondent is liable for the damage to the bamboo flooring. The Tribunal found that there was no industry standard or requirement of the Building Code of Australia for a sealant to be applied in all instances where bamboo flooring is laid. The respondent is therefore not liable for the damage as a result of it not applying a sealant. Finally, the Tribunal found that the applicants failed to satisfy the Tribunal, on a balance of probabilities, that the damage was caused by residual moisture within the new concrete slab.
The application was therefore dismissed.
Category: B
Representation:
Counsel:
Applicants: Mr W Vogt
Respondent: Mr D Harris (General Manager)
Solicitors:
Applicants: Vogt Graham Lawyers
Respondent: N/A
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Issues
There are three issues the subject of this application, namely:
1)Are the bamboo floor boards the subject of this proceeding (floor boards) moisture damaged? The answer is, yes, as agreed by all witnesses and there is no reason to dwell on the issue.
2)Is the respondent liable for the damage to the floor boards? This issue was the subject of the hearing.
3)If the answer is yes to issue 2, what orders should follow? The Tribunal indicated to the parties that once the question of liability in issue 2 is dealt with, further evidence and submissions would be heard in regard to appropriate orders in regard to remedy and compensation.
Background and facts
The background and facts giving rise to the dispute are largely uncontested.
The applicants entered into a building contract with Nulook Homes to undertake extensions to their existing, single storey residence. The project comprised a ground floor extension and addition of a second storey. A separate contract was entered into by the applicants with the respondent for the laying of approximately 150m² of bamboo flooring together with stair treads.
The concrete slab extensions were poured in September 2011. The newly laid concrete slab abuts part of the old concrete slab. The old slab is approximately 30 years old (in these reasons reference is made to the new concrete which signifies the extended area, and old concrete, which signifies the previously laid slab).
Representatives of the respondent commenced installation of the bamboo flooring on 23 July 2012 and completed the work on 7 August 2012. This was about 10 months after the pouring of the new concrete. No moisture sealant was applied between the concrete slab and the bamboo flooring. Sikabond T55 polyurethane flooring adhesive was used to stick the bamboo flooring to the concrete slab. The work of the respondent covered parts of the old and new concrete.
At around November 2012, moisture damage became visible to the bamboo in the front living area. In March 2013, moisture damage also became visible in the pantry and dining areas. The moisture damage did not go beyond those areas. The primary area of discolouration has been marked in orange on the drawing by Dr Zurhaar, the principal expert witness called by applicants (page 192 of Exhibit B), which can be described as part of the lounge area, adjacent to the lower flight of stairs to the upper level; the area under the new stairs into the new pantry; and the area in the dining room, close to a doorway leading to the garage. It is agreed that the damage is to a relatively small area of the total floor space and coincides, generally, with the location where the old and new concrete join.
Dr Zurhaar carried out a moisture content test on a small part of both the new and old concrete, when he visited the site on 13 and 15 November 2013. The area of the test was near the bottom of the stairs where the discolouration of bamboo seemed the greatest. The methodology used for the test is described in the expert reports of Dr Zurhaar and Mr Fisher (also expert witness called by the applicants). Two holes were drilled ‑ one in the new slab and one in the old slab. One hole was approximately 50 millimetre from the joint, and the second hole was approximately 200 millimetre from the joint (see page 194 of Exhibit B). The moisture content of the hole drilled in the new concrete was 6.1%, and in the old concrete, was 5.6%.
Contentions
The contentions of the applicants can be summarised as follows:
1)The respondent is liable for the damage to the floorboards by reason of:
a)not adequately testing for moisture content of the concrete prior to installation of the bamboo floor; and
b)not using a sealer on the slab before laying the bamboo floor.
2)The residual moisture in the new concrete slab at the time of laying of the bamboo, was absorbed by the bamboo as a result of the premature laying of the bamboo.
3)It was the responsibility of the respondent to ensure that the new concrete was in a suitable condition prior to the installation of the bamboo.
4)The respondent failed to take adequate precautionary measures such as installing a moisture membrane between the concrete slab and the bamboo.
5)There is no evidence of an external source for water ingress into the old or new concrete.
6)The reason why the damage is limited to certain areas is that the new concrete in those areas have thickened edges which take longer to dry.
7)Moisture movement (capillary action) occurred from the new to the old concrete which explains the relatively high moisture reading in the old concrete.
8)The respondent is liable for the damage to the bamboo floor.
The contentions of the respondent can be summarised as follows:
1)The respondent is not liable for the damage to the floor boards since:
a)it conducted adequate testing of the moisture content of the old and new concrete prior to laying the bamboo;
b)it is not required to investigate the substructure of the floor or to investigate whether building requirements and plan specifications have been complied with by the builder; and
c)the applicants have not proven, on a balance of probabilities, that the moisture causing the damage was residual.
2)The moisture levels in the old and new concrete were adequate for the bamboo to be laid. The relatively high moisture reading taken by Dr Zurhaar in November 2013, is indicative of an external source of moisture, rather than residual moisture, since the reading was taken more than two years after the concrete had been poured.
3)The respondent properly discharged its responsibility to ensure that the concrete was in a suitable condition for the installation of the bamboo. The TRAMEX CME4 meter used by the respondent is an acceptable instrument for the measurement of moisture in concrete and it returned a reading of 1% and 2% in areas tested.
4)There were no industry requirements for a moisture membrane or sealant to be installed by the respondent between the slab and the bamboo flooring, and there was no reason for such a membrane to be installed, in light of the low level of moisture in the concrete.
5)There has been insufficient consideration by Mr Fisher and Dr Zurhaar of the potential of an external source for water ingress. Mr Fisher acknowledged there may be another source, but his proposition, that a waterproof sealer between the slab and the bamboo would have contained the water, is rejected.
6)If the slow drying of the thickened edges of the new concrete were the cause of the damage, the problem would present itself in other areas of the newly added renovations where there are also thickened edges.
7)The respondent is not liable for the damage to the bamboo floor.
Statutory framework
The complaint is dealt with against the framework of s 5(1) of the Building Services (Complaint Resolutions and Administration) Act 2011 (WA) (BS(CRA) Act) which provides that a person may make a complaint about a regulated building service not being carried out in a proper and proficient manner or being faulty or unsatisfactory.
It is agreed, that in these proceedings, the applicants can bring the application and the laying of the floor is a regulated building service. The question is, whether the work was not done in a proper and proficient manner, or whether the work done was faulty or unsatisfactory.
Process of complaint before the final determination
The process of the complaint, prior to reaching the stage of a final determination, was rather confusing, and from the view of the applicants, perhaps very frustrating. There is no need for the Tribunal to review the entire complaint process that was followed by the applicants, but one can understand their frustration. The complaint was initially brought in the Building Commission (Commission) against the builder. Then, at some stage, Bamboozle was added to the proceeding. At a later stage, without the provision of reasons, Bamboozle was removed as a respondent by the Commission. Some internal memoranda of the Commission were included in the bundles marked as Exhibits A and B, in which various officers of the Commission expressed views about the merit of the dispute and the possible origin of the moisture. Mr Vogt, the legal representative for the applicants, objected to memoranda being considered on the basis of hearsay and to the authors not being called to give evidence. The Tribunal, in its deliberation, did not, for the very reasons raised by Mr Vogt, attach any weight to the memoranda, particularly to those to which Mr Vogt objected, dated 24 September 2013 and 14 August 2013.
By the time the dispute reached the Tribunal, there were two proceedings on foot ‑ one against the builder and one against Bamboozle. Mr Vogt was the legal representative for the applicants in both matters. Mr Vogt then sought leave to withdraw the proceeding against the builder, the leave was granted and the matter was withdrawn. Some time later, Mr Vogt sought for the proceeding against the builder to be reinstated. The Tribunal refused for the proceeding against the builder to be reinstated because Mr Vogt could not show from where the Tribunal had the power to do what he sought. The proceeding against Bamboozle therefore continued. It is this complaint which is the subject of this hearing.
The applicants made it clear during the hearing that they acted on the basis of advice received and that their reason for persisting with the application against Bamboozle, is based on the expert evidence and legal advice given to them.
The following persons were called to give evidence: the applicants; Dr Zurhaar; Mr Fisher (witnesses called by the applicants); Mr O'Connor and Mr Hutchinson (witnesses called for the respondent). The Tribunal has taken all material, evidence and submissions into account in reaching its decision.
Consideration
The Tribunal will consider the submissions and evidence as part of its consideration and will deal with three separate questions that arose during the proceeding, namely:
1)Does the evidence support a finding that the respondent tested both the old and new concrete slab prior to the laying of the bamboo?
2)Is the damage to the bamboo floor a result of residual moisture?
3)Is the respondent liable for not applying a sealant membrane prior to the laying of the bamboo?
Did testing of concrete occur before the bamboo floor was laid?
The Tribunal will first consider the question whether the evidence supports a finding that the respondent tested the concrete with a Tramex CME 4 instrument before it proceeded with the laying of the bamboo.
The Tribunal finds in the negative. There is insufficient evidence to support a finding that the respondent tested the moisture in the old and the new concrete in a manner suggested by the respondent.
There is insufficient evidence before the Tribunal to support a finding that the respondent or contractors working for the respondent:
a)conducted a moisture test of the old or new concrete before laying the bamboo;
b)used a Tramex CME 4 instrument to conduct the test;
c)conducted tests on several parts of the new or old concrete slab; or
d)filled out a job site checklist (page 115 of Exhibit A) on the basis of the information that was gathered during the purported inspection.
The reasons for this finding are as follows:
1)The applicants did not observe the moisture tests being done. The Tribunal accepts that one of the applicants (Mr Vulin) was in attendance during the pre‑installation inspection and that he observed the contractors for the entire period while they were on site. However, other than observing them check the levelling of the concrete, he did not observe them conducting any moisture tests.
2)The respondent did not call the contractors to give evidence nor summoned them if they were unwilling to attend voluntarily. Mr Hutchinson referred the Tribunal to the general policies of the respondent that should to be followed by the contractors, in regard to testing of concrete prior to laying a floor, but there was no evidence from the contractors to ascertain whether those policies were adhered to in the case of the laying of this floor.
3)The respondent did not provide a witness statement or any other written confirmation from the contractors to indicate the dates of the tests, the instrument used, the locations on the floor where readings were taken, and or the outcome of any such readings.
4)Mr Hutchinson acknowledged that he did not discuss with the contractors: whether they had in fact done tests as is required by the general policies of the respondent; whether the Job Site Checklist was completed contemporaneously during, or immediately after the testing; or whether the information contained in the Checklist was accurate. The Tribunal finds it incredulous that neither Mr Hutchinson nor Mr Harris (knowing how important it is to determine whether tests had actually been done) could say that they did not realise it would be important for the Tribunal to call the contractors who were responsible for the testing and the laying of the floor. Mr Harris, the general manager of the respondent, conducted the hearing with great professionalism and it is most unlikely, in the opinion of the Tribunal, that neither Mr Hutchinson nor Mr Harris realised how important it was for the contractors to verify the nature and extent of testing of the concrete that had been done.
5)Although Mr Hutchinson referred to the Job Site Checklist that was purportedly completed after the inspection, he failed to identify the person who completed the Checklist, or the date upon which it was completed. He pointed the Tribunal to a file on which such a checklist is supposedly attached, but he could not confirm whether that procedure was indeed followed in this case.
6)There is, in short, insufficient evidence to conclude that the general policies of the respondent, in regard to the testing of concrete, prior to laying a bamboo floor, were followed or adhered to, prior to or during the laying of this floor.
This finding does not, in itself, mean that a conclusion can be drawn that the respondent is automatically liable for the damage to the bamboo flooring. The Tribunal must consider the remaining two questions before an ultimate conclusion can be arrived at.
Was the damage a result of residual moisture?
The second question for the Tribunal to consider is whether the cause of the damage can be attributed to the presence of residual moisture, which was allegedly present in the new concrete, at the time of the laying of the floor.
The applicants carry the burden of proof to establish, on a balance of probabilities that the proposition they put to the Tribunal is supported by sufficient facts to enable the Tribunal to find that it is more likely, than not, that the cause of the damage to the floor is a result of residual moisture, which, if proper tests had been carried out by the respondent, would have been detected.
The Tribunal finds in the negative. The Tribunal is not satisfied that the applicants have proven their case on a balance of probabilities.
This finding will no doubt be most disappointing to the applicants. The applicants have developed their case well, but failed to satisfy the Tribunal that their version is more likely than it is not. The applicants may agree, once they have absorbed the reasons of the Tribunal that their case was not as well prepared as it could have been; the research on which they relied was prematurely concluded; and as a result, they failed to convince the Tribunal.
The Tribunal rejects the contention of Mr Vogt that that the applicants have proven their case on the balance of probabilities and that it is for the respondent to prove what other reasons might exist for the water damage. The onus to prove their case is carried by the applicants, while the respondent only needs to cause sufficient doubt in the mind of the Tribunal as to whether the applicants' proposition is proven on the civil standard. It is not, as Mr Vogt seems to suggest, obligated on the respondent to identify the actual cause of the water damage or to conduct tests on the property of the applicants. Nothing turns therefore on the failure of the respondent to attend the site inspection organised by the applicants. There is also no obligation on the respondent to have conducted its own tests of possible sources of the water ingress. The respondent is entitled to question the veracity of findings of Dr Zurhaar without itself having done any tests of possible causes of water ingress.
The application is unsuccessful because the applicants did not prove that on a balance of probabilities, the moisture that caused the damage was as a result of residual water within the new concrete. Even if the Tribunal accepts that the damage is associated with an area of thickened concrete where the old and new concrete join, for reasons set out below, the Tribunal does not accept that the damage was as a result of retained moisture in the thickened concrete.
In explaining why the Tribunal does not find for the applicants, the Tribunal will assess the evidence given by Dr Zurhaar, and also refer to the evidence of other experts and of lay persons:
Brief of Dr Zurhaar
Dr Zurhaar's brief was to express an opinion as to the cause of the moisture ingress that caused the damage. The Tribunal is not satisfied that Dr Zurhaar;s evidence reflects the general terms of the brief. Although Dr Zurhaar directed his attention to one possible, or perhaps, probable cause (static moisture that was retained in thickened part of the new concrete) he did not investigate and exclude other possible causes to a sufficient level of detail, to rule those possibilities out. Dr Zurhaar says his brief did not include speaking with the builder to establish whether a waterproof membrane beneath the new concrete slab had been laid; he was not provided with previous plans of the old building to determine whether there may be any pipes within or underneath the old concrete; and he did not investigate other possible sources of ingress because the evidence of static moisture he found within both the new and old concrete was sufficient for him to form an expert opinion. He said repeatedly that other experts' reports have ruled out all other possible sources of moisture. Mr Vogt also said in his submissions that Nulook conducted two separate site inspections on 29 November 2012 and 1 Februrary 2013 and concluded there was no obvious water leak (page 242 of Exhibit B). The Tribunal was however not provided with those other expert opinions referred to by Dr Zurhaar; the Tribunal was not provided with any tests undertaken by Nulook; representatives of Nulook were not called to give evidence; and it seems as if Nulook only conducted visual and not destructive or invasive inspections.
Two other experts presented the Tribunal with assessments that contrast with the certainty that Dr Zurhaar projected. Mr Fisher is of the view that there might be a leakage of water in the old concrete and Mr O'Connor is of the view that there may be a drainage pipe leakage, or that the lack of an adequate waterproofing membrane between the soil and the old concrete, particularly in the area of the join, may have contributed to the damage.
Mr Fisher says that a waterproof membrane had been installed under the slab, but in examination, he acknowledged that he did not conduct any inquiry or inspection to verify whether a membrane had actually been installed to specification. Mr O'Connor ruled out the water table, rainwater and soak wells as possible sources of external water, but he insisted that a dynamic feed of water, possibly from the main water pipe or from waste water, was a distinct possibility, even a high probability. Mr O'Connor also emphasised that the possible absence of an adequate plastic moisture barrier between the concrete and the soil, could have contributed to the damage.
As acknowledged by Dr Zurhaar, no core sampling had been completed to determine the moisture content of the soil beneath the house, or whether the required waterproof membrane was present.
Mr Fisher also expressed the opinion during examination, that the most likely cause of high moisture reading in the old concrete was a dynamic source such as a pipe leaking. It is also noted that, according to the Mycologia report (from page 116 of Exhibit A), which was submitted by the applicants, the concrete slab in the garage showed an elevated moisture content in the cracked expansion joints when the test was conducted on 7 May 2013. The possible source of this elevated moisture reading was not reflected on by Dr Zurhaar or Mr Fisher and it is not clear if it may be related to the elevated readings in the area of damage.
Although Dr Zurhaar says that the moisture reading would have been even higher if there had been an external ingress of moisture, the Tribunal cannot rule out the possibility of ingress that may be the result of a slow discharge from another source. The Tribunal reiterates that it is not for the respondent to identify the source of moisture. Rather, it is for the applicants to satisfy the Tribunal on a balance of probabilities, that static moisture contained in the new concrete was the cause of the damage.
Destructive inspection
Dr Zurhaar's brief was to conduct a 'destructive inspection of the concrete slab joints' (Exhibit D). Although Dr Zurhaar uncovered a small part of the old and new concrete slab, he conceded in examination that he did not:
a)locate the actual slab join; and
b)conduct any destructive inspection of the join.
In fact, Dr Zurhaar said in evidence, that he did not know whether the crack line that was uncovered and shown on photographs, was indeed the true join. This contrasts with Dr Zurhaar's report when he says that 'the join between the existing and the new concrete pads was sound and as good a joint as is ever achievable' (page 4 of Exhibit C).
Only a tiny portion of bamboo flooring was lifted, but the crack that is shown on photos, were not, necessarily, the join where the old and new concrete meet.
The two holes that were drilled into the old and new concrete cannot be regarded as a destructive inspection of the slab joins and cannot necessarily be regarded as representative of the entire area where damage has occurred. The test area may have been sufficient to develop a proposition, but without testing the veracity of the proposition by comparing it to other areas, it remains just a proposition.
The Tribunal therefore agrees with the criticism expressed by Mr O'Connor, namely, that the test done by Dr Zurhaar was not of such standard that a finding can be made that residual water was the cause of the damage[A1] . Dr Zurhaar conceded that at least three core holes, one through each slab, and one directly through the joint itself, would be desirable.
Thickening of slab
The proposition put by Dr Zurhaar that the damage presents itself at the thickening of the new concrete slab and that the cause of the damage is the slow drying of the thickened slab, was not adequately tested or verified by evidence.
Dr Zurhaar did not measure the thickness of the slab where the damage presents; there is no detail or test which indicates the actual thickness of the slab at the location of the join; he did not investigate other areas where the slab may also be thickened to establish whether the proposition holds true; he did not discuss with the builder where thickened areas were located; he did not compare the moisture content of the thickened area where the damaged occurred with other areas to find a basis for comparison; and he limited himself to only one reading of moisture content with no follow up readings[A2] .
This deficiency in methodology would no doubt be frustrating to the applicants, because it would have been so simple for Dr Zurhaar to have taken follow up readings so as to establish a basis, for which he says, is a trend of concrete drying. The proposition that the high moisture content of the thickened part of the slab was the cause of the damage was therefore speculative and not adequately verified by fact.
This finding of the Tribunal is echoed by the caution expressed by Mr O'Connor who said that 'without further investigation it is impossible to tell the exact thickness of the concrete slab edge at the slab join or other areas around the perimeter' (page 164 of Exhibit 2[A3] ).
Moisture reading
Dr Zurhaar took only a single reading of moisture content on 13 November 2013. On that day, the new concrete showed 6.1% moisture and the old concrete showed 5.6% moisture.
Dr Zurhaar’s opinion is that the moisture would, since the pouring of the new concrete, be on a declining trend, since, according to him, the problem was residual moisture that was retained in the new concrete and that the moisture level would reduce as time passes. Dr Zurhaar made the following statement in his report (Exhibit C, 2 December 2013 at page 5):
If the moisture content of the new slab edge is at 6.1% in November 2013 then it was clearly significantly higher back in July 2012 when the bamboo flooring was installed.
By inference, the moisture reading would be even lower at the time of the hearing.
This proposition of Dr Zurhaar is not supported by fact.
Mr O'Connor, who did not do a moisture test other than placing his hand on the concrete when he visited the site on 29 January 2014, said that the new concrete appeared dryer than the old concrete, as determined by the colour of the concrete and by touch. While the testing by hand is not accepted as a scientific test, this opinion, formed by an experienced builder, nevertheless illustrates how important it was for Dr Zurhaar to have conducted an empirical follow‑up test to ascertain the validity of his proposition that the concrete was dryer than it had been previously.
Dr Zurhaar did not, however, conduct any follow-up tests to sustain this statement.
In response to cross‑examination by the Tribunal, Dr Zurhaar acknowledged that 'normal procedure' to assess the moisture level of concrete would be to conduct follow‑up tests so as to determine whether the origin of any moisture is dynamic or static. In this case, he did not follow up. No reading of moisture was taken since November 2013.
Although the applicants are of the view that the damage has stabilised and that moisture in the concrete and bamboo has decreased, Dr Zurhaar's report is silent as to what has happened after November 2013.
The Tribunal is left with a single reading, on a single day, with no expert evidence of moisture levels increasing, decreasing or remaining stable. The assumption of Dr Zurhaar, that the only option open for consideration is that the moisture content was higher in July 2012 than in November 2013, and therefore lower in May 2014, is not supported by the evidence.
To add to this uncertainty, the moisture in the damaged bamboo flooring was, according to the Marston report, 30% in May 2013 and when Dr Zurhaar did the test in November 2013, it was the same. Given the proposition that the concrete and thus the bamboo was drying out, the two readings that remained static were not adequately explained.
The inadequacy of Dr Zurhaar's proposition is further highlighted by the opinions of Mr O'Connor and Mr Fisher who both express the opinion that there may be an external source of dynamic moisture. Although they were not required to prove what other source may be responsible for the moisture, both experts agreed that the high level of moisture in the old concrete could not be attributed to moisture moving from the new concrete and is likely to be from an external source, such as a pipe leakage, or even from the plumbing stack and plumbing duct, as marked on the Site Setout Plan (on page 46 and the Ground Floor Plan on page 48 of Exhibit A).
The applicants would no doubt be unhappy with this analysis, since it would seem so easy and obvious to have conducted further readings prior to the hearing to ascertain a trend, if any.
Bamboo damage on the old concrete
Dr Zurhaar could not explain, to the satisfaction of the Tribunal, why the damage of the bamboo flooring on top of the old concrete was more extensive than the damage to the bamboo flooring on top of the new concrete. As shown on the photographs tendered by Dr Zurhaar, and confirmed by Mr O'Connor, the damage of the bamboo flooring on the new concrete was about 50 to 110 millimetres wide, while on the old concrete, it was up to 350 to 400 millimetres wide (page 194 of Exhibit B).
The Tribunal notes the difference of opinion between the two expert witnesses called by the applicants, as to the possible reason for the discrepancy. Mr Fisher is of the view that there may be dynamic water feeding into the old concrete since the extent of moisture was surprising to him, while Dr Zurhaar is of the opinion that the moisture is moving from the new to the old concrete.
As already observed by the Tribunal, Dr Zurhaar did not inspect any join to establish whether his proposition is credible and whether the join is such that moisture could move from the new to the old concrete. According to Mr O'Connor, it would be impossible for moisture to move from the new concrete across a join to the old concrete and even if there was, at the time of the pouring of the new concrete, some transmission of moisture into the old concrete, such transmission would have dried by the time of the laying of the floor; and the transmission would not account for the damage to the bamboo flooring of 400 millimetres over the old concrete[A4] .
The Tribunal therefore remains unconvinced of the proposition put forward by Dr Zurhaar, and he himself accepted, that more core samples were required with follow‑up tests to affirm the veracity of his opinion. Dr Zurhaar perhaps best summarised the ambiguity when he responded as follows to questions by the Tribunal: 'there is so much we don't know'.
Other areas of thickened slab
Dr Zurhaar points out that the damage occurs in two areas on both sides of what may be either a crack or a join (the exact location of the join was never established clearly by Dr Zurhaar) and that this is supportive of his proposition that residual moisture is causing the damage.
While the reason for the two areas of damage is not yet clear to the Tribunal, Dr Zurhaar failed to investigate why other areas with thickened slab did not present similar damage. Dr Zurhaar was emphatic that, with all things being equal, that all the thickened areas should demonstrate some moisture damage. But this proposition was not fully investigated, tested, or supported by the limited tests that were undertaken by Dr Zurhaar.
It is not contested that the other area(s) of thickened concrete does not exhibit water damage. Although Dr Zurhaar says the absence of damage in those areas may be due to a wall absorbing some of the moisture in the other area of thickening, this possibility was not investigated by him and the explanation was only offered during the hearing, but without any substantiation to support the opinion.
Mr O'Conner's opinion is that, if the same amount of moisture that was evident in the floor boards were absorbed into the wall, some symptoms of such water intake would have been visible on the wall ‑ for example, by paint bubbles and, or, flaking. Dr Zurhaar did not conduct any moisture tests on the walls to determine whether the proposition that the walls may have absorbed moisture, was supported by fact.
An important consideration, when assessing the evidence of Dr Zurhaar, is that he says his calculations and assumptions are based on the premise that the slab where the damage occurred, is indeed 230 millimetres in thickness. He said, under cross‑examination that if the slab was not that thick, his proposition falls away. Mr Fisher says he is not aware that other parts of the new concrete slab may also be thickened. He agreed that, if that was the case, those areas should also have to be tested to determine if residual water in the thickened areas was the cause of the damage.
Mr Fisher also says that, on examination of the drawings, the edge of the slab was not dimensioned, either on the structural drawings or on the architectural drawings (page 226, Exhibit B). Dr Zurhaar did not speak to the builder to confirm that the thickened concrete was indeed, as per specification. This emphasises why a proposition that the damage is linked to the thickened edge should be supported by fact.
Two drill holes
The extent of testing done by Dr Zurhaar of the entire area of damage, is limited to two drill holes in an area where the damage to the bamboo floorboards was worse. This testing is inadequate to support the proposition put forward by Dr Zurhaar.
While the Tribunal understands Dr Zurhaar's concern that invasive testing may cause additional damage, there is also the risk that with such limited testing, the chances of success to establish the cause of the damage may be reduced.
The two drill holes returned moisture readings of 6.1% in the new concrete and 5.6% in the old concrete. The opinion of Dr Zurhaar that these readings support a finding of residual moisture within the new concrete being the source of the damage, is not supported by fact. The opinion expressed by Dr Zurhaar could have been supported by him:
a)locating the actual slab join as per his brief;
b) conducting destructive inspection of parts of the slab join as per his brief;
c)testing of the concrete in both areas of damage at multiple locations to establish if the moisture content is stable or varied;
d)conducting follow‑up testing of moisture content to establish if a trend is discernable by the moisture in the areas of damage increasing, decreasing, or remaining stable;
e)identifying all areas of thickened slab; and
f)confirming whether other areas that purport to have thickened slab, showed increased moisture levels.
Moisture in old concrete
Dr Zurhaar's evidence is that a newly poured concrete slab dries at approximately 25 millimetres per month. This is not contested by any of the experts. This means, according to Dr Zurhaar, that 100 millimetres of concrete should be adequately dry after four months and 230 millimetres should be adequately dry after about nine months. The bamboo flooring was laid after about 10 months. The Tribunal accepts the estimates about the drying process of concrete are estimates, rather than exact timelines.
The question that arises however, is why, after 24 months after the slab had been poured, the new concrete still returnrd a reading of 6.1% in December 2013 and the old concrete a reading of 5.6% moisture.
Dr Zurhaar says that no concrete could ever return a reading of 1% or 2 % moisture as is suggested by the inspection carried out by the respondent. Dr Zurhaar says that old concrete of this age (about 30 years) should return a moisture reading of 4% to 5%. This opinion of Dr Zurhaar is contrasted by Mr O'Connnor who says that concrete of 20 years old could return a reading of 2% moisture.
Unfortunately, for the case of the applicants, Dr Zurhaar did not conduct a test in another part of the old concrete to establish what the moisture content is of an area which is distanced from the damaged area. As a result his proposition, that the old concrete can never produce a reading of 2% and that the expected moisture of the old slab would be around 5%, remains unverified.
The Tribunal is left with two competing propositions: Dr Zurhaar, who says that moisture migrated from the new to the old concrete; and Mr O'Connor and Mr Fisher, who say that the possibility of moisture feeding into the old concrete from another source cannot be discounted, since the moisture level in the old concrete is much higher than would be expected of such old concrete.
Transmission of moisture via the bamboo floor
Dr Zurhaar suggests that, if the moisture did not migrate from the new to the old concrete via the join, it could also have been transmitted via the bamboo flooring serving as a conduit.
Mr O'Conner rejects this possibility, since, according to him, the bamboo cannot be the cause of the moisture in the old concrete being at such a high level. Although Mr O’Connor accepts that moisture, once it penetrates the bamboo floor can spread in all directions, he challenges the proposition that the bamboo in turn can cause the elevated moisture reading in the old concrete.
The Tribunal does not accept the proposition of Dr Zurhaar for the following reasons:
a)Although Dr Zurhaar raised, during his evidence the possibility of the bamboo serving as a conduit for water ingress into the old concrete, there is no mention of such a possibility in his expert report. He did not provide any scientific data to show how, within the short period of time, moisture movement within the bamboo floor could cause the moisture content of the old concrete to rise to the level as tested; and
b)The proposition does not explain to the satisfaction of the Tribunal, why the damage to the bamboo flooring over the old concrete, would be so much more severe than the damage of the bamboo flooring over the new concrete.
Bamboo being a sealant
Dr Zurhaar's opinion is that the bamboo flooring possibly contributed as a sealant to trap the moisture from the concrete and thus prevented the moisture from escape.
While this proposition may have some merit, Dr Zurhaar did not conduct any other tests to establish whether this opinion is supported by fact.
The respondent contends that bamboo flooring allows the evaporation of water, even if the bamboo is treated with polyurethane.
The question whether the bamboo formed such an effective seal that it caused moisture to be entrapped, is firstly not supported by evidence and secondly, it does not mean the origin of the moisture is static.
The shortcomings of Dr Zurhaar's proposition is enhanced by the fact that he did not re‑test the concrete slabs after the bamboo flooring had been removed, to compare the reading where the boards had not been removed, and he did not test the moisture content of the concrete in any other areas where the concrete may have been thickened, so as to provide an explanation, supported by fact, as to why only parts of the bamboo flooring are damaged.
Two areas of damage
Dr Zurhaar says that his proposition that the damage is caused by residual moisture, is affirmed by the fact that the damage to the bamboo flooring is not localised to one area, but also appears in another area that is distanced from the main area of damage.
Although Dr Zurhaar did not test the other area, other than by way of a visual sighting, he says that, in his expert opinion, the second area also has a thickened slab and the nature of the damage is so consistent with the main area, that a conclusion can be drawn that the cause of the damage is residual water within the thickened slab.
Mr O'Connor disagrees with this assessment since water damage, if caused by a leaking pipe, may present itself in different areas. Mr Fisher was also ambivalent as to the relevance of thickened slabs to the two areas of damage. Mr Fisher conceded that neither the join, nor the thickened slab, may be as relevant as it is proposed to be, but that another source of moisture ingress may be the cause of the damage.
The Tribunal is not satisfied that the presence of the water damage in two areas is sufficient to support the proposition of Dr Zurhaar. Although Mr O'Connor has ruled out several possible causes of moisture inflow into the old concrete, the possibility of a pipe leak, be it a main supply pipe or discharge piping, has not been fully investigated and cannot be discarded.
The single test undertaken by Dr Zurhaar is inadequate to support a finding that the damage in both areas is a result of residual moisture within the thickened areas of concrete.
Need for additional testing
Dr Zurhaar says that a period of nine months should, generally, be adequate for the thickened area of 230 millimetres to dry sufficiently for the laying of the floor. But he emphasises that this is not an exact process and that a contractor should also test concrete to establish if it is sufficiently dry. The Tribunal accepts this as a general proposition. Mr Fisher also says that 10 months should have been an adequate period for the concrete to dry to a level where the bamboo flooring could be laid.
Mr Fisher says he agrees with the written observation of Mr B Marston of the Australian Timber Flooring Association (page 63 of Exhibit A), where the following is said:
… Capillary action of moisture between an old slab and a new slab can also have the effect of localising the moisture effects in particular areas compared to other areas that may take a longer time to show signs of moisture ingress. This was considered to be part of the issue in this instance along with differing thicknesses of concrete at different slab joints. Note only destructive testing can confirm this. The severity of the moisture ingress in the lounge particularly will require board removal and a thorough assessment of the moisture in the concrete and along the joined slabs. (Tribunal emphasis)
The Tribunal concurs that additional testing is required to establish whether the damage caused is a result of capillary action of moisture moving from the thickened edges to the old concrete or whether another source of moisture is present. Neither Mr Fisher nor Dr Zurhaar gave effect to this level of testing recommended by Mr Marston before formulating their propositions.
The proposition of Dr Zurhaar that the damage is a result of residual moisture in the area of the thickened concrete, is not supported by sufficient facts to justify a finding in favour of the applicants on the basis of a balance of probabilities.
Is the respondent liable for the damage by failing to apply sealant before laying the bamboo flooring?
Finally, the Tribunal will deal with the question as to whether the respondent is liable for the damage since it did not apply a sealant to the concrete floor prior to laying the bamboo flooring.
The Tribunal finds in the negative.
The Tribunal does not attribute any liability to the respondent for the following reasons:
1)There was insufficient evidence before the Tribunal to establish that is was an industry standard for a sealant to be applied as a matter of course before bamboo flooring is laid on concrete, be it old or new concrete. The report of Mr Marston (Exhibit A from page 57 onward), observed that no moisture barrier had been applied, prior to the laying of the bamboo flooring but, importantly, Mr Marston did not say it was an industry standard for such a sealant to be applied; nor did Mr Marston say the applying of a sealant was a requirement of the Building Code of Australia; and, finally, Mr Marston was not called to give evidence. Although Mr Fisher said initially that a sealer would have prevented the damage, in cross‑examination, he accepted that the practical value of a sealer would be dependent on the extent of moisture and the condition of the floor ‑ for example, no cracks that may damage the sealer. Mr Fisher in effect, retracted the assertion in the last paragraph of his statement, that a sealer would have been a simple solution to have prevented the damage[A5] .
2)There was insufficient evidence before the Tribunal to find that a sealer, even if it had been applied, would have withstood the extent of moisture movement or any damage that may have been caused by the cracking of the concrete. The photos tendered show a crack in the concrete surface and this would, it is accepted, also affect any sealer. Mr Fisher accepted that the extent of moisture level in December 2013 was 'surprisingly' high and he could only speculate as to possible reasons. Although he said in his report that the primary cause for the damage was the absence of a coating between the bamboo flooring and the concrete slab, he accepted in cross‑examination that the coating would have been of minimal value if small cracks appeared in the concrete, or if the moisture content of the concrete was too high.
3)Mr Fisher conceded that the 'simple step' as per page 231 of Exhibit B, namely, for a moisture barrier to have been installed by the respondent, may not have been appropriate unless the source of the ingress was better investigated. This is consistent with the evidence of Mr O'Connor who says that new concrete will inevitably shrink as part of the drying process and new concrete will not bind with old concrete, thereby leaving small cracks that might affect the sealant, even if it had been applied.
There is insufficient evidence before the Tribunal to find that the respondent is liable for the damage for not applying a sealant to the concrete, prior to the laying of the bamboo.
Conclusion
The Tribunal concludes that the applicants have not demonstrated, on the balance of probabilities, that the respondent is liable for the damage that was caused to the bamboo floorboards. Although the Tribunal does not accept the evidence of the respondent, that the concrete had been tested for moisture content before the bamboo was laid, the Tribunal does not accept the proposition that the damage is a result of static moisture in the concrete, or that the application of a sealant would have prevented the damage.
The application must therefore be dismissed.
It should be clear to the parties from these reasons that the applicants may, with the benefit of further investigation, commence fresh proceedings, be it against the builder, or against the respondent. The parties are therefore encouraged to attempt to reach a settlement of the dispute, if and when, such investigation is concluded.
Order
The Tribunal makes the following order:
1.The application is dismissed.
I certify that this and the preceding [97] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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DR B DE VILLIERS, MEMBER
[A1]I think that Zurhaar conceded that 3 core holes, one in each slab and one directly through the joint itself would be desirable. From memory both Fisher and O’Connor concurred with this.
[A2]There is no detail or test which indicates the thickness of the slab in the location of the join
[A3]I see that the slab thickness is covered here
[A4]Also transmission of moisture from the newly poured concrete to the old slab would according to O’Connor be minimal
[A5]The Sika report at page 275 paragraphs 4 and 5 also deal with the effect of movement through the slab join relative to the effectiveness of a sealer
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