Walker and Anor v Corporation of the City of Adelaide and Ors No. Scciv-01-1272

WALKER v CORPORATION OF THE CITY OF ADELAIDE and ORS
[2004] SASC 98
Civil
INDEX
1.    Witnesses and findings as to credit
2.    The Walker Land
3.    The Estoril Development
4.    Concern with the western wall
5.    The Core report
6.    Circulation of the Core report
7.    The trench
8.    The aftermath of the collapse
9.    The cause of the collapse
10.      Liability
(a)      The Corporation
(b)      Estoril
(c)      Performa
(d)      ABG
(e)      ADCIV
(f)       Core Engineering
11.      The Development Act 1993, Section 72
12.      Final conclusions

PERRY J. This action concerns the land situated at 30-40 Gilbert Street, Adelaide (“the Walker land”). The land has been owned by the plaintiff, Arthur Thomas Walker, since 1984.[1]
[1] See Certificates of Title Register Book Volume 4139 Folio 360 and Volume 4139 Folio 361.
The second plaintiff, Gilbert Motor Bodies Pty Ltd (“Gilbert Motors”), conducts, and has conducted at all relevant times, the business of a motor vehicle body repair shop in a building on the Walker land.
On Friday 26 November 1999, during the course of an excavation being dug on adjoining land (“the Estoril land”) immediately to the west of the Walker land, support to part of the Walker land was removed or impaired, as a result of which part of the footing of the western wall (“the western wall”) of the building on the Walker land slid down into the excavation, causing a partial collapse of the wall.
In these proceedings the plaintiffs sue five defendants whom they assert are, between them, responsible for the failure of the western wall and the resultant damage and loss suffered by the plaintiffs.
The first defendant is the Corporation of the City of Adelaide (“the Corporation”). The Corporation had earlier approved a development application relating to the Estoril land. On 21 September 1999 it became the registered owner of a strip of the Estoril land, to be used as a public road, within part of which the excavation in question was dug.
The second defendant, Estoril Developments Pty Ltd (In Liquidation) (“Estoril”) was at all relevant times the owner and registered proprietor of the Estoril land, except for the strip of land referred to above, which it transferred to the Corporation on 21 September 1999.
At the relevant time Estoril was engaged in a residential development project involving 20 allotments, into which the balance of the Estoril land had been subdivided.
Pursuant to a resolution of its creditors, Estoril was made the subject of a voluntary winding up, resulting in the appointment, effective from 6 June 2003, of Timothy James Clifton and Peter Ivan Macks as liquidators.
The third defendant, Performa Real Estate Pty Ltd (“Performa”) which conducts the business of a real estate agent, was alleged by the plaintiffs to have been engaged by Estoril as its agent to carry out the development.
The fourth defendant, Allan Gilbert & Associates Pty Ltd, later known as ABG Consulting Engineers Pty Ltd (“ABG”), was engaged by Estoril as consulting engineers to prepare the civil engineering design for the development, prepare the necessary documentation, call for tenders and attend to the administration of the contract works.
The fifth defendant, Adelaide Civil Pty Ltd (“ADCIV”), is a civil engineering contractor which was engaged by Estoril to carry out engineering works on the Estoril land. In the course of performing that work, ADCIV was responsible for digging the excavation leading to the collapse of the western wall.
ADCIV issued a third party notice against David Smith and Owen Goldie trading as Core Engineering (“Core Engineering”). Owen Goldie of that firm, an engineer, conducted an inspection of the western wall a few days before its collapse.
The plaintiffs claim that the defendants were variously negligent or otherwise in breach of a duty of care which caused or contributed to the collapse of the wall.
The defendants between them have issued contribution notices to each other, seeking contribution or indemnity with respect to the plaintiffs’ claim.
In the third party proceedings against Core Engineering, ADCIV alleges that Core Engineering was in breach of a duty of care owed to the plaintiffs and to ADCIV. In the event that ADCIV is found liable, ADCIV claims to be entitled to be indemnified by Core Engineering to the extent of ADCIV’s liability to the plaintiffs.
Before the commencement of the trial, the plaintiffs and all five defendants entered into a written agreement which provided that in the event that a judgment was given in favour of either or both of the plaintiffs, the quantum of damages, including interest to 7 February 2002 and recoverable legal costs to 7 February 2002, would be $700,000. Core Engineering was not a party to the agreement.
Despite the fact that the agreement as to quantum includes a clause to the effect that its terms are not to be disclosed to the Supreme Court of South Australia, a copy of the agreement as to quantum of damages was tendered at the hearing without opposition by counsel.
At the trial, all parties to the proceedings, with the exception of Estoril, appeared and were represented by counsel. I deal later with the consequences of the non-appearance on behalf of Estoril.
None of the defendants nor the third party concedes any liability to the plaintiffs. They blame each other for the collapse of the western wall.
At the outset of the trial, on 9 July 2003, on the application of Mr Wilkinson of counsel for the plaintiffs, pursuant to s 500(2) of the Corporations Act (2001), I gave leave to the plaintiffs to proceed with its claim against Estoril, and such defendants as had issued contribution notices against Estoril to proceed with the contribution notices, but in no case beyond judgment or final order with respect to any of the claims against Estoril.
Twenty witnesses were called, including the two engineers who are parties, Mr Allan Gilbert and Mr Owen Goldie, and five other engineers.
There were 100 exhibits, including numerous engineering reports, diagrams and photographs.
The case involved the need to address complex issues, including issues associated with s 60 and s 72 of the Development Act (1993).
1. Witnesses and findings as to credit
I accept the evidence of the two members of the Walker family who gave evidence. They were the plaintiff, Arthur Walker and his son, Alistair Walker.
Several officers of the Corporation who were associated with the process of approval of the development, gave evidence. I found them defensive and unwilling to commit themselves on anything contentious. However, their evidence was not seriously in dispute. So far as it goes, I accept it.
ADCIV called three of their employees who were associated with the works carried out on the Estoril land. They were Tony Finnegan, David Edwards and Murray Hesse.
Mr Finnegan was the project manager. He was cross-examined at length, during the course of which he shifted his position on some critical issues.
A central issue in the case was as to the terms of a telephone discussion between Mr Finnegan and Mr Goldie. I found Mr Finnegan’s evidence on that topic unconvincing. Where it conflicts with that of Mr Goldie, I prefer the evidence of the latter.
Mr Edwards was the site co-ordinator for the Estoril development. I accept him as a witness of credit.
Mr Hesse was the site supervisor. Either his memory was deficient or he was not forthcoming on a number of issues. He fared badly in cross-examination.
I am not prepared to rely on his evidence where it conflicts with other credible evidence.
I refer later to the evidence of some of the engineers who were called to give evidence. They were all highly qualified and experienced. There were no serious differences between them, except perhaps as to technicalities associated with the application of s 60 of the Development Act.
However, the differences in that respect were largely explicable by reference to different assumptions made by the witnesses as to relative ground levels from which certain calculations were to be made.
I was most impressed with the evidence given by two engineers in particular. They are Mr George Fowlie and Mr John Bay. Where there are differences between their evidence and the evidence given by others, I prefer their evidence.
Generally I accept the evidence of Mr David Coombe, an engineer who was called as an expert witness by ABG. However I do not accept his evidence as to the wisdom of excavating below the level of the footings of the western wall.
A chartered professional engineer, Mr Richard Liney, was called by ADCIV. He did not impress me so much as other engineers. I reject his evidence where it conflicts with others.
A civil engineer, Mr Trevor Stidson who was called by ADCIV, gave me the impression that he had a close association with ADCIV, although he denied that it affected his evidence. I think that it did.
He had been asked by ADCIV to prepare an estimate for the repair costs. This is not an issue of importance for the purposes of the trial, given that the quantum of the plaintiffs’ claim has been agreed.
On one issue I reject Mr Stidson’s evidence. He gave an explanation for the typing out of an extract from the notes of another witness, Mr Finnegan which I found implausible.
I reject Mr Stidson’s evidence on that topic.
A critical question in the case was as to the credit of Mr Gilbert, particularly where his evidence as to certain conversations with Mr Finnegan was at odds with the evidence of the latter.
While I observed a tendency at times for Mr Gilbert to be defensive in some of his answers in cross-examination, I accept him as a witness of credit. I prefer his evidence where it conflicts with others.
That is with one exception. As will be seen, despite his denial that he had a telephone conversation with Mr Finnegan on the day before the collapse of the wall, I find that such a conversation did take place.
Mr Finnegan’s evidence was critical to the case mounted by ADCIV. An important aspect of his evidence was as to his account of a discussion which took place between him and the consulting engineer, Mr Goldie.
I did not find Mr Finnegan’s evidence on that topic convincing. As will be seen, I prefer the evidence of Mr Goldie where it conflicts with that given by Mr Finnegan.
I found Mr Finnegan’s explanation of the differences between two versions of notes, which he said he typed up on the day following the collapse of the wall, unconvincing. I do not accept it.
It is unnecessary to catalogue the impressions which I formed as to the remaining witnesses.
In the factual findings which appear in these reasons, it may be accepted that I have taken account of all of the evidence given by the various witnesses. Where there are conflicts, I have accepted the evidence which supports the findings.
2. The Walker Land
From some time before the building currently situated on the Walker land was erected on the Walker land, the land was owned by Mr A Ross.
In 1925 Mr Ross erected on the Walker land a large building, used as factory premises, in which he conducted a motor body building business in the name of Ross Motors.
Archibald Thomas Walker worked for Ross Motors. He acquired the Walker land and took over the business in the early 1930s. The Walker family has owned the land ever since, and conducts its business from the premises.
Over the years the nature of the business has changed from motor body building to repairing.
The plaintiff Gilbert Motors was incorporated in 1934. At all times the company has been in the control of members of the Walker family, who have used it as the entity within which to conduct the motor body repair business at the subject premises.
The business was managed for some years by Mr Arthur Walker. He is now semi-retired. His son Alistair David Clarke Walker took over as manager in 1993. Alistair Walker has the day-to-day conduct of the business.
It is obvious from my inspection of the building and from the evidence given as to its condition and maintenance, that there has been very little structural alteration to the building since its erection.
The evidence of Arthur Walker was that since he has been familiar with the building, which was from about 1950, there has been no change in the structure of the building.
About ten years before the trial, which was about six years before the collapse of the western wall, about a quarter of the roof of the building, which included part of the roof against the western wall and the guttering down that side of the building, and which included a box gutter situated between the wall and the roof, were replaced.
I adopt the following description of the building given by the engineer, Mr Fowlie:
“The single storey building is two bays in width with the roof structure to each bay supported by timber trusses spaced at approximately 5 to 6 m centres in the north-south direction. Each bay is approximately 16 m to 18 m in width. The roof to the building is clad with corrugated iron sheeting supported on timber purlins spanning between adjacent roof trusses. Along the building’s eastern and western perimeter walls, the timber trusses are supported on concrete columns incorporated into the brick masonry wall construction. Along the approximate centreline of the building, trusses are supported on timber columns.
The brick masonry construction to the western and eastern perimeter walls is sub-divided into brick masonry panels by the included concrete columns noted above. A concrete bond beam, at or about gutter height, joins the tops of the concrete columns. The concrete columns and bond beams are visible both externally and internally. The western wall has been built immediately within the western boundary to the Gilbert Motor Bodies’ site. The southern (street frontage) wall is also of brick masonry construction and contains large door and window openings. Parapets top each of the building’s perimeter walls. All walls and included columns are founded on continuous concrete strip footings.
The floor within the building is generally bitumen paved. Offices are located in the south-western corner of the building. The floor in this area is of concrete slab at grade construction. Office partition walls are of light weight, stud wall construction. Adjacent to the office area and on the western side of the building is a paint booth. The floor beneath and surrounding the paint booth is also of concrete slab at grade construction. Over the paint booth, inlet and outlet ducting penetrates the roof to the building. Mechanical plant associated with the paint booth is supported independently of the building structure.”
3. The Estoril Development
At the relevant time, Jonathan Haynes was the sole director of Performa and one of three directors of Estoril.
Through the agency of Mr Haynes, Estoril purchased the Estoril land in February 1999.
Estoril then entered into a joint venture with other parties, who are not parties to the action, for the development of the Estoril land, part of which it agreed to hold as trustee for other parties to the joint venture agreement.
Effectively Estoril assumed the role of developer of the Estoril land, in part for the benefit of the joint venturers, and in part in its own right.
The sale and purchase agreement with the vendor of the Estoril land was expressed to be subject to the Corporation’s approval of the proposed development.
On 15 March 1999, Performa applied to the Corporation for approval of the development.
The plan of subdivision lodged with the development application provided for an internal road within the subdivision, which was to be a private road. As well, there was to be a public road, described as Myers Lane, running from Gilbert Street to the northern extremity of the subdivision, separating the western wall from the eastern side of the most easterly allotments in the subdivision.
The eastern side of Myers Lane is depicted as immediately adjacent to, and contiguous with, the western wall.
I accept the evidence of Mr Haynes that the development application was made in the name of Performa simply as a matter of convenience, and that when Performa lodged the application it did so on behalf of Estoril. Mr Haynes’ unchallenged evidence was that it was not uncommon for real estate agents to make an application in their own name for development approval for the benefit of a client.
As will be seen, the fact that Performa made the development application in its own name has given rise to a degree of confusion as to the identity of parties to transactions which followed.
The Corporation notified approval for the development by a written notice dated 5 May 1999.
The approval was subject to eight conditions. Two of them are relevant for present purposes. They were:
“6.Final design details of the internal road layout, including paving, landscaping, gradient and lighting and arrangements for ongoing management of those roads shall be submitted to and approved by the Corporation.
7.The proposed public road shall be constructed to the Corporation’s specification and satisfaction, and at the cost of the applicant prior to acceptance as a public road and will be subject to defects liability period of 12 months from the date of completion.”
The public road referred to in condition 7 is what became Myers Lane.
After lodging the application for approval of the development, Estoril engaged ABG as engineers for the project.
To that end, Mr Haynes met with Mr Gilbert on 16 March 1999.
I accept Mr Gilbert’s evidence that he discussed with Mr Haynes the scope of the work which ABG would perform, if engaged for the project. In particular, I accept his evidence that he went through the substance of guidelines set out in a publication of the Association of Consulting Engineers of Australia. I am satisfied that he used as a checklist the document described as Appendix A to those guidelines.
In substance, the work which he offered to undertake was:
Designing and documenting the works, including preparation of plans and specifications.
Obtaining and advising on tenders or quotations.
Preparation of contract documents and seeing to their execution.
Furnishing such other drawings and details as ABG deemed necessary.
Monitoring construction, with a view to ensuring compliance with “design intent”. This was to involve periodic inspection and attending, where appropriate, meetings with contractors and suppliers, but did not include continuous or detailed supervision such as would be provided by a resident engineer or clerk of works.
There was no written contract entered into between ABG and Estoril (or Performa). Because Performa had lodged the application for development approval, Mr Gilbert thought that his firm was contracting with Performa. Thereafter, for a time, he corresponded with Performa and billed Performa rather than Estoril.
But his work was paid for by Estoril. Mr Gilbert’s confusion as to the identity of the other contracting party is not material to any question which arises in these proceedings.
I am satisfied that Mr Gilbert agreed on behalf of ABG that ABG would undertake the work on the basis outlined in his explanation of the scope of the work which he gave to Mr Haynes, the substance of which I have set out above.
Mr Gilbert proceeded with the preparation of the necessary engineering drawings.
During the course of preparation of the drawings, ABG corresponded with the Corporation as to the Corporation’s requirements.
By letter of 21 June 1999, an officer from the design section of the Corporation wrote to ABG indicating what its requirements were with respect to various aspects of the proposed development.
The letter reads in part as follows:
“Following our conversation on the 18 June 1999 I would like to outline the Corporation’s standard requirements with regards to the streetscape design, construction and documentation of Myers Lane and the Private Lane within the Land Division.
It is understood that the applicant is proposing that the north-south link shown on the plan (attached) of the proposed Land Division, shown as Myers Lane, between Myers Street and Gilbert Street be a Public Road, then various conditions as required by Council need to be agreed.
The following information shall be considered in your project:
·Myers Lane shall have a footpath 1.5 metres in width on the western side and a 0.6 metres wide on the eastern side to facilitate pedestrian access. The remaining roadway width of 3.7 metres is sufficient for one-way traffic.
·One-way traffic conditions will need to be established in Myers Lane due to the narrowness. The proposed direction of travel is northbound, ie from Gilbert to Sturt Street.
·..........
·...........
·The matter concerning the design requirements for Myers Lane including construction, kerbing, drainage and lighting shall be discussed with the Asset Manager Roads, Mike Barkway, telephone 8203 7277, the Asset Manager Lighting, Bruno Castellucci, telephone 8203 7646 and Asset Manager Water, Andrew Smith, telephone 8203 7610.
·The internal roads are to be constructed and maintained by the applicant. The proposed public road (Myers Lane) is to be designed and constructed to the Corporation’s approval and at the cost to the applicant prior to acceptance as a Public Road, and will be subject to a defects liability period of 12 months from the date of completion.
Please find attached documents that you will need to comply with for the design, construction and documentation of your project ......”

It will be seen from that letter that it was envisaged that the footpath of Myers Lane on the eastern side would be narrow; 0.6 metres wide. Necessarily, given the configuration of the site, that footpath would need to be constructed hard up against the western wall.
The letter further stipulated that the design requirements for Myers Lane, including kerbing and lighting, were to be discussed with the officers of the Corporation mentioned in the letter.
The Corporation also laid down that Myers Lane was to be designed and constructed to the Corporation’s approval, at the cost of the developer, prior to acceptance as a public road.
The various documents attached to the letter included documents setting out various applicable engineering standards and standard specifications, including a document headed “Specification for Excavation Work in Roads, Footpaths and Parklands”.
By August 1999, ABG had completed a set of drawings comprising five sheets which were submitted to the Corporation under cover of a letter from ABG dated 3 August 1999. None of the drawings gave any detail as to the installation of street lighting in Myers Lane.
Although it was obvious that there would need to be street lighting in Myers Lane, Mr Gilbert’s firm did not hold itself out as having any expertise in the design of street lighting. Mr Gilbert expected the specifications for the street lighting to be provided by someone else outside of his firm.
His evidence was that initially he was given to understand that there would be a “common service trench” running along Myers Lane in which provision would be made for the supply of gas and telephone lines, as well as the supply of electricity by ETSA.
He understood that the common service trench would be positioned in the wider, western footpath of Myers Lane, rather than in the narrow eastern footpath.
At the time he submitted the set of five drawings to the Corporation, Mr Gilbert thought that the conduit to carry the power to the street lighting would be incorporated in the common service trench.
For present purposes, the most important of the five drawings submitted to the Corporation is the first of them, being drawing No A1-1999-010tc Sheet 01.
This included cross-sectional design details for the construction of Myers Lane. That drawing included, with reference to the pavement design details for the eastern kerb, a note inserted by Mr Gilbert:
“Road construction method adjacent to existing brick wall (to prevent structural damage to existing building) to be approved by engineer and Council prior to commencing constn”.
Between the date of submission of the drawings to the Corporation and 16 August 1999, Mr Gilbert must have become aware of the fact that Norm Tec Electrical Services (“Norm Tec”), of which the principal was Norman Asquith, had been engaged to prepare the lighting design for the installation of street lighting to Myers Lane. I make that finding, as Mr Gilbert wrote to ETSA by letter of 16 August 1999 enclosing correspondence from Norm Tec regarding the lighting design and suggesting that ETSA liaise with the Corporation and Norm Tec when preparing its “Electrical Layout Design Plan”.
In a separate letter to the Corporation dated 16 August 1999 enclosing the set of five drawings which he had prepared, Mr Gilbert commented:
“We understand that you have the public lighting layout plan for Myers Lane as prepared by Norm Tec Electrical Services and it is noted that ETSA are preparing the ‘common trench layout plan’ for electrical reticulation works which will incorporate the public lighting.”
That comment is consistent with Mr Gilbert’s belief at that stage that the common service trench would incorporate provision for the conduit to supply power to the public lighting.
The Corporation endorsed the five plans submitted by Mr Gilbert, with standard endorsements stating either “recommendation to proceed” or “authority to proceed”. They did so within about a week, by 25 August 1999.
Eventually, Mr Gilbert received a copy of a drawing prepared by Norm Tec which included a simple diagrammatic representation of Myers Lane, showing the street lighting positioned on the eastern side, that is, near the western wall. A line represented the trenched conduit to supply power to the lights was close to the western wall.
But the sketch was indicative only, and one cannot by reference to the drawing calculate how far out the trench to carry the conduit for the lighting was to be positioned with reference to the western wall.
What is important to note is that Mr Gilbert’s firm did not prepare that design drawing for the public lighting, and did not lodge it with the Corporation, although, as I have said, it eventually received a copy which was supplied to it by the Corporation.
Up to the stage of the Corporation’s endorsement of the drawings which had been prepared by Mr Gilbert’s firm, there was a building standing on the Estoril land. This was an old factory or warehouse building.Estoril obtained the approval of the Corporation for its demolition, which it proceeded to effect through contractors engaged for that purpose.
In the meantime, Mr Gilbert put out to tender the work associated with construction of the development.
The successful tenderer was ADCIV.
Mr Gilbert prepared an agreement for execution by ADCIV. In it he showed the other contracting party as Performa. But, when he sent it for execution to Mr Haynes, the latter crossed out Performa and inserted Estoril.
I find that it was Estoril who contracted with ADCIV.
In essence, ADCIV’s responsibilities were to carry out the road works and trenching and the water and sewer infrastructure for the subdivision.
It is not entirely clear from the evidence just when demolition of the building on the Estoril land had been completed. It seems likely to have been towards the end of September 1999.
Mr Hesse of ADCIV gave evidence that the “start-up” date for the project was 19 October 1999. It appears that ADCIV actually started on the earthworks on that date.
Either on the “start-up” date or a little earlier in October 1999, ADCIV was let into exclusive occupation of the Estoril land by Estoril for the purpose of carrying out the contract works.
The “box-out” of Myers Lane began on 26 October 1999. The expression “box-out” refers to the initial excavation which, when finished, represented the extent of the carriageway of the road excavated to about 200 millimetres below ground level.
In fact, to allow for the materials which were to be laid down to form the road, it was to become an excavation extending in depth to some 300 millimetres. But at that stage a margin of 100 millimetres was left unexcavated.
Mr Hesse’s evidence was that on the eastern side of Myers Lane the excavation for the box-out was carried to approximately 300 millimetres from the western wall. His evidence was that the “face” of the kerb was to be 590 millimetres from the wall, but he extended the “box-out” beyond that to within about 300 millimetres of the wall to allow space for the concrete kerbing to be formed.
While Mr Hesse’s evidence that the face of the kerb was to be 590 millimetres from the wall is consistent with the letter of 21 June 1999 from the Corporation to ABG, which, as I have pointed out above, stipulated that the footpath on the eastern side of Myers Lane was to be 0.6 metres wide, his evidence that the road box-out came to about 300 millimetres from the wall is not consistent with the observations later made by the engineer Mr Goldie of Core Engineering.
I prefer Mr Goldie’s evidence.
Further excavations, including the digging of a sewer main down the centre of the roadway, were proceeded with until commencement of the excavation for the common services trench on the western side of the roadway started on about 17 November 1999.
At about the time when work commenced on the common services trench, namely on 18 November 1999, there was a meeting of representatives from ADCIV and from ETSA. No-one from ABG was present.
From ADCIV, Mr Hesse attended, together with Dave Edwards and Mr Finnegan. There were two representatives from ETSA.
Although the focus of the meeting was the discussion of detail concerning the common services trench, I accept that reference was made during the course of the meeting to the trench needed for the public lighting of Myers Lane.
The evidence is somewhat vague. However I am prepared to accept that the suggestion was made by one or more of the ADCIV representatives that the trench for the public lighting should be moved across into the common service trench, or at least to the western side of the roadway. Whether that suggestion was made because of what were perceived to be difficulties in the way of digging the trench along the area in which the footpath was to be formed on the eastern side because of the width of that footpath, or because of what were described as certain “protrusions”, to which I will shortly refer, is not clear.
At all events, I am satisfied that the suggestion was made, but that it was rejected by the ETSA representatives.
The idea was not pursued further.
4. Concern with the western wall
On the same day as the meeting concerning the common services trench, that is, on 18 November 1999, but after the meeting, in the afternoon, Mr Roderick Cameron, a civil engineer working with ABG, visited the site. While he was there, Mr Hesse called him over to look at what had been described as protrusions on the western wall.
The protrusions were concrete bulges emanating from the otherwise straight outer alignment of the concrete strip footing to the wall. It was explained in the course of the evidence that such protrusions sometimes occur when there is an over-pour of concrete at the time of construction of the foundation, when some of the concrete spills out of the formwork.
When Mr Cameron was taken across to view the protrusions, he noted and made a measurement of the width and depth of four substantial protrusions, the approximate position of which he noted and marked up in a copy of part of a diagram depicting Myers Lane and the adjoining works.
The protrusions varied in width and depth, but he estimated that the width of each of them was approximately 300 millimetres and the depth was about 0.6 metres.
ADCIV had made small excavations to expose most of the protrusions. Mr Cameron and Mr Hesse dug soil out by hand to the extent necessary to gain an impression of the extent of them.
Mr Hesse commented to Mr Cameron that the lighting trench would be constructed in the vicinity of the western wall, and that the protrusions were an obstruction to the digging of the trench.
After they had finished inspecting the protrusions, I am satisfied that Mr Cameron told Mr Hesse that he should cease all works along the eastern boundary of the road, that is, against the western wall, and that he (Mr Cameron) would take the information which he had obtained back to ABG’s office and let “them” sort it out with a view to determining precisely where the trench for the lighting should be located, and also as to the adjoining construction of the road.
In his evidence Mr Hesse accepted that a clear instruction had been given by Mr Cameron that they were not to do any further work against or in the vicinity of the western wall until ABG had had an opportunity to consider the position.
That same afternoon, after leaving the site, Mr Cameron returned to his office and spoke to Mr Gilbert.
He showed Mr Gilbert the rough plan which he had prepared, indicating the position of the protrusions, and explained that if further work was to be done against the western wall in order to create a trench for the lighting, the protrusions would have to be removed. I accept Mr Cameron’s evidence that he explained to Mr Gilbert that he was concerned that anything should be constructed anywhere near the walls.
Mr Gilbert said that he would speak to the client and arrange for a structural engineer to examine the protrusions.
Thereafter, Mr Cameron did not have occasion to revisit the site until late on 26 November 1999, after the wall had collapsed.
Mr Gilbert’s evidence was that after the situation had been explained to him by Mr Cameron, he rang Mr Haynes. He did so as he did not regard himself as experienced in structural engineering or footing designs.
Mr Gilbert’s evidence as to what he explained to Mr Haynes was as follows:
“I told John [Haynes] that we would need to engage the services of a structural engineer as a sub-consultant because I was not in a position to do that work myself. We would need to have an inspection carried out along the eastern side of Myers Lane to determine the stability of the wall and the footings and the relationship with the works to construct Myers Lane in reference to that. ..... This was a normal thing to happen in our practice. Quite often various things would crop up and I would either engage sub-consultants in the structural nature or geo-technical nature on behalf of the client to do various things associated with projects. In this case I used the term structural engineer. John said ‘No, don’t worry about organising it. We will use our own structural engineer’.”
This conversation took place on the same day as Mr Gilbert’s discussion with Mr Cameron, that is, on 18 November 1999.
I accept Mr Gilbert’s evidence that following the discussion with Mr Haynes he thereupon spoke to Mr Finnegan by telephone and explained to him that there would be a structural engineer’s report carried out on the western wall. Mr Gilbert explained to Mr Finnegan what Mr Cameron had told him and reiterated that there was “no work to be carried out in the immediate vicinity of the western wall of Gilbert Motors”.
The next thing that Mr Gilbert heard with reference to this aspect of the matter was the receipt by him of a fax from Performa on 24 November 1999 attaching a copy of the report which had by then been furnished by Mr Goldie of Core Engineering.
5. The Core report
I will deal with the circumstances leading up to the preparation by Mr Goldie of his report.
After his discussion with Mr Gilbert, Mr Haynes telephoned Mr Demetlica, a builder who had an association with Mr Haynes in connection with the development. Mr Haynes’ evidence was that he contacted Mr Demetlica on the same day as he had received the call from Mr Gilbert, but I am not sure whether that was so. Certainly it was within a day or two that he did so.
At all events, Mr Haynes asked Mr Demetlica whether the latter knew of a good civil engineer who could “move quickly” to do an assessment of the wall. Mr Demetlica recommended Mr Goldie of Core Engineering. Mr Haynes says that he then rang Mr Goldie and engaged him to do the job. Mr Goldie says that it was in fact Mr Demetlica who engaged him.
I prefer Mr Goldie’s evidence.He says that he received a call from Mr Demetlica about mid-afternoon on 23 November 1999.
Mr Goldie was able to attend at the site more or less straight away. He met Mr Demetlica on site at about 5.30 pm that day.
Mr Demetlica took Mr Goldie across the site to the western wall where he pointed out some material towards the northern end of the wall, more or less against the wall. Mr Demetlica said in effect “this is what I want you to look at”. Mr Goldie thought that the material was remnants of the building that had been demolished. He said:
“It was a composite sort of matrix of dirt, concrete, some brick fragments, different building materials, predominantly concrete, sort of in a mass that abutted the wall. Because they had excavated up and around it there was roughly the depth of the Gilbert Motor’s footing, I would say 4 metres long and half a metre wide out from the wall, just like a matrix of different materials.”
He thought that the material extended to a depth matching the bottom of the strip footing of the western wall. He told Mr Demetlica that the collection of material against the wall was not something that they needed to worry about and that it could be removed.
Pausing there, I am surprised that what Mr Demetlica pointed out to Mr Goldie and what he said could be removed and was not a problem, was clearly not the protrusions which had been the subject of attention by Mr Cameron and Mr Hesse. I can only assume that the fact that Mr Goldie’s attention was not drawn to the protrusions was a result of a breakdown in the communication passing in succession between Mr Gilbert, Mr Haynes, Mr Demetlica and on to Mr Goldie.
At all events, I accept Mr Goldie’s evidence that after he had dealt with what had been pointed out to him by Mr Demetlica, he then expressed his concern that the excavation to the stage at which it had then progressed was so close to the western wall and was, to use his expression, “relatively deep”.
Mr Goldie moved along the footings and made a more specific examination of them. He was concerned at both the depth of the foundation against the footings and the fact that there were what he described as “wet ponds of water” over the area which was being excavated for the road.
He explained to Mr Demetlica that in his view the wall was stable but that they should not excavate further.
It is clear from the evidence of Mr Goldie that he was not told at any time before the collapse of the wall that a trench was to be dug against the wall. Furthermore, as I have noted, his attention was not drawn to the concrete protrusions which were regarded by ADCIV as standing in the way of the digging of the public lighting trench.
When taken specifically in the course of cross-examination to a plan prepared by Mr Stidston of the concrete protrusions, based in turn upon the observations which had been noted by Mr Cameron, Mr Goldie denied any knowledge of those protrusions. He emphasised that he had been taken only to the material further north of the most northerly or the protrusions, being the deposit of material which was pointed out to him by Mr Demetlica.
Mr Goldie’s understanding was that his attention was drawn by Mr Demetlica to that more northerly deposit of material, as it would interfere with the formation of the road box-out.There was no mention to him of any intention or requirement to dig a trench.
The significance of Mr Goldie’s state of mind as to those matters will be made clear when I come to deal with a telephone call from Mr Finnegan which occurred on Thursday 25 November 1999.
At all events, soon after his on-site inspection, Mr Goldie prepared a report dated the next day, that is 24 November 1999. The report is addressed to Estoril. It is in the following terms:
“Re: INSPECTION OF THE EXISTING STRUCTURE ON THE BOUNDARY OF MYERS LANE, ADELAIDE (LANE UNDER CONSTRUCTION)
1.0    GENERAL
At the request of Mr J. Demetlica the existing structure on the eastern boundary of Myers Lane was inspected on 23 November 1999, during the construction of the adjacent road, to determine the stability of the wall and make recommendations on any additional work if required.
2.0    INVESTIGATION
The investigation revealed that the existing structure on the eastern boundary is a commercial-type building consisting of reinforced concrete frames with brick in-fill external walls supported on reinforced concrete strip footing beams, a steel clad roof and a concrete floor.
The reinforced concrete strip footing beam supporting the external wall of this structure was found to be at least 500 mm deep, which corresponded to the same depth, to date of the adjoining excavation for Myers Lane.
A previous adjoining building which covered the site of Myers Lane has mostly been demolished leaving only the base of a reinforced concrete and brick structure towards the northern end of the boundary.
In addition to these points the ground immediately adjacent to the wall was found to be saturated and water was ponding on the surface.
3.0    RECOMMENDATIONS
The existing structure is in sound condition (ie minimal cracking and movement is noticeable) and is considered to be structurally stable. The excavation, at its current depth, has not undermined the wall on the boundary. The base of the adjoining building, as described above, may be removed to the same depth as the surrounding excavation (ie the existing strip footing shall not be undermined).
However, it is recommended that the excavation not be deepened, that it be kept drained at all times so that the founding soil under the footing is not allowed to become saturated and any vibrations near the wall be kept to a minimum.
The excavation in its current state shall not be left open for more than one week before any filling or sub-base is placed (ie filling commenced by 1 December 1999). The final placement of filling and sub-base for Myers Lane, designed by others, shall be completed as soon as possible but within a minimum of two weeks (ie filling completed by 8 December 1999).
(signed)
Owen S. Goldie”

Several comments should be made as to the terms of that report.
The first is as to the sentence:
“The reinforced concrete strip footing beam supporting the external wall of the structure was found to be at least 500 mm deep, which corresponded to the same depth, to date, of the adjoining excavation for Myers Lane”.
His suggestion that the excavation for Myers Lane at that stage had proceeded to 500 millimetres as opposed to the 200 millimetres referred to by Mr Hesse suggests that either Mr Hesse was wrong in his estimation of how far the excavation associated with the box‑out had proceeded when he ceased work against the wall on 18 November 1999, or that some further excavation had been done between that date and the date of Mr Goldie’s inspection.
As I have said, I was impressed with Mr Goldie’s evidence and accept it in preference to any other evidence which might conflict with it.
When Mr Goldie describes the excavation as “the adjoining excavation”, I am satisfied that he was referring to a situation in which the excavation was more or less hard up against the western wall and extended in depth to a level roughly corresponding with the depth of the reinforced concrete strip footing beam, so as more or less to expose it fully, necessarily depriving that beam of any lateral support against the western side.
In the following paragraph of the report there is a reference to the demolition of the “previous adjoining building”. The “base of a reinforced concrete and brick structure towards the northern end of the boundary” having been left after the demolition was completed, is a reference to what was pointed out to Mr Goldie by Mr Demetlica. It does not correspond with the protrusions as they have been described, which were further south in or against the foundation of the western wall.
Where under the first paragraph under the heading of “Recommendations” Mr Goldie refers to “the base of the adjoining building as described above”, he is referring to the residue of the demolition as he understood it to be at the northern end of the boundary.
The recommendation that “the excavation not be deepened” was in unambiguous terms and clearly referred to that part of the boxing-out of the road formation which was immediately adjacent to the western wall.
Associated with the recommendation that the excavation not be deepened was his recommendation that what he had earlier referred to as water ponding on the surface against the wall should be drained.
Mr Goldie was clearly of the view that even absent any attempt to further deepen the excavation, filling or sub-base should be placed against the wall so that it was not “left open for more than one week” from the date of his report, and that the “final placement of filling and sub-base for Myers Lane” was to be completed as soon as possible but within a minimum of two weeks.
6. Circulation of the Core report
On the same date as the date of the report, that is, 24 November 1999, Mr Haynes faxed a copy of the report to Mr Gilbert. In the fax header sheet Mr Haynes asked Mr Gilbert to advise ADCIV “of the content of same”.
Mr Gilbert complied by sending a fax on the same day, that is, 24 November 1999, to ADCIV for the attention of Mr Finnegan.
In the header sheet attached to the fax transmission to Mr Finnegan Mr Gilbert remarked:
“Copy of report received from Performa regarding their consulting engineer’s report re excavations in Myers Lane and matters relating to existing footings and adjacent walls.
Please note the requirements of this report and we request that you speak directly to Owen Goldie (Core Engineering), regarding his requirements etc.
[John Haynes will forward you a better copy]
Please ring me when you get this fax.”
Mr Finnegan replied by a fax to Mr Gilbert, again on the same day, that is, 24 November 1999, in the following terms:
“I received your fax. I tried to ring at 5.40 pm. I will be in a meeting until 9.30 am Thurs 25/11 but I will give you a call after that, to discuss things.”
Mr Finnegan’s evidence was that he spoke to Mr Gilbert the next day, that is, 25 November 1999, and subsequently to Mr Goldie. His evidence in chief on this topic was:
“A.Next morning I had various meetings and got caught up during most of the day. I spoke to Allan somewhere in the vicinity of around 3 o’clock in the afternoon. I am not sure whether he rang me, or whether I rang him.
Q.Do you remember the conversation at all.
A.It was fairly brief. I noted that the report hadn’t really made any reference to the protrusions on the wall and Allan said to me ‘Well, you better speak to Owen Goldie. Make sure you ring him’ and I said okay.
Q.Did you discuss any other aspect of the report with Mr Gilbert, or was it just that he was directing you to Owen Goldie.
A.I was to ring Owen Goldie.
Q.What did you do then.
A.I got up to phone. I rang Owen Goldie at about 3.30 and had a brief conversation with him.
Q.Can you relate that conversation to the court.
A.Yes, I spoke to Owen and advised him that I had received the report through Allan Gilbert. I said to him ‘Your report doesn’t seem to have the protrusions’. [he] then went on to say that [he] had visited the site and noted there was water ponding, and observed the water ponding the excavation, and that it needed to be drained as quickly as possible. I said to him ‘Yes, that is fine, there is no problem with that. Once they got the protrusions removed and the trench dug, I will backfill as quickly as I possibly can, up to sub-base level, and it should be done very very quickly’, or words to that effect.”
Mr Gilbert’s evidence was that he did not receive a call from Mr Finnegan on 25 November 1999, or in fact have any contact with Mr Finnegan or anyone else from ADCIV after the exchange of faxes which occurred on 24 November 1999, until he was advised of the collapse of the wall.
I do not think that much turns on this conflict in the evidence. However, much attention was given to it during the hearing, and it was pointed out that in the points of claim on the contribution notice by ABG as against ADCIV, ABG asserts:
“1.4Allan Gilbert rang Tony Finnegan on 25 November 1999 and was assured that the fifth defendant (ADCIV) had received the Core letter and had spoken to its author.”
At the hearing, Mr Wilkinson of counsel for ABG resiled from that plea and said that it had been made in error and was based on a misunderstanding of instructions.
On balance, I hold that there was a telephone call between Mr Gilbert and Mr Finnegan on 25 November 1999, and that Mr Finnegan was referred by Mr Gilbert to Mr Goldie.
What is important, is that there is no evidence from Mr Finnegan to suggest that he was in any way authorised by Mr Gilbert to proceed with any work against the western wall at that stage.
I have already referred to Mr Gilbert’s earlier telephone call to Mr Finnegan, which Mr Gilbert made after speaking to Mr Haynes. Mr Gilbert then repeated the instruction given by Mr Cameron to Mr Finnegan, not to do any further work near the wall. That instruction was never revoked or varied.
As for Mr Finnegan’s phone call to Mr Goldie on 25 November 1999, there is no doubt that this occurred. Both Mr Finnegan and Mr Goldie gave evidence of it.
However, their evidence differs significantly as to the terms of the conversation.
I have already referred to Mr Finnegan’s evidence as to what was said.
Mr Goldie’s evidence in chief on this topic was as follows:
“A..... [I] got a phone call out of the blue Thursday afternoon from Tony.
Q.Mr Finnegan rang you.
A.Correct, yes.
Q.Did you know Mr Finnegan.
A.No.
Q.What did he say to you when he rang.
A.Obviously introduced himself as he is calling out of the blue. He wanted to know whether I was, I guess, sure about this material being remnants. Yes, I am, because I have seen it. Explained that it is in my report - he was quite happy with it. He was actually quite happy to leave it at that but I guess saw an opportunity to mention that you have to sort of read through the report and it was ‘Yes, yes’. And again so I just tried to keep him on the phone, I suppose. ‘So you have done things to that effect of dewatering it?’ ‘Yes, yes’ came back the response. ‘Yes, we are on top of it sort of thing’ and recommendation, sort of going through it, was not excavating any deeper. Again some acknowledgment back to me to sort of say, yes, that is fine. I fell well, I am not pressing the point here. That is fine, you have called me, you have obviously read it. Then, just towards the end he just sort of said ‘We can remove the material?’ I said ‘Yes, yes’. The phone call was less than a minute.
Q.When he finally said ‘We can remove the material’ what did you say in response to that.
A.I just assured him again, it is in the report - I just assured him again. I mean, I did again go through the report saying ‘Don’t remove it any deeper than the adjoining excavation’ but I saw no reason why he would need do it. I was pretty sure in my mind that just removing it would be - would bring you down to the same formation level, so that is fine.
Q.In the course of that conversation did Mr Finnegan ever use the word ‘trench’.
A.No, that I - no - if any word was used it was ‘excavation’. When I say ‘no deeper than the excavation’. No ‘trench’ wouldn’t have been the word.”
Elsewhere in his evidence Mr Goldie was emphatic that while Mr Finnegan did say that he would address the water problem and keep it drained, there was no suggestion made by Mr Finnegan that he would dig “a” trench or “the” trench. Mr Goldie was adamant that the word “trench” “didn’t come up”.
Having regard to my findings as to credit, I prefer the evidence of Mr Goldie where it conflicts with that of Mr Finnegan.
At the same time, I think that there was room for some misunderstanding between them. This was a product of the fact that Mr Finnegan was preoccupied with the question whether the protrusions could be removed. Mr Goldie, on the other hand, was not aware of the protrusions as such, and thought that when Mr Finnegan spoke of removing something, he was referring to the material referred to in his report which had been pointed out to him by Mr Demetlica, which was a separate and distinct deposit of material to the north of the most northerly of the protrusions.
That misunderstanding may have led Mr Finnegan to believe that Mr Goldie was giving the all-clear to remove the protrusions.
However I find that Mr Goldie said nothing to suggest that any further excavation could take place. I find that Mr Finnegan did not refer to trenching or proceeding with a trench.
Mr Goldie’s opinion, as expressed in his report and in his evidence, was clearly that any further excavation should not be contemplated; that it would represent an unacceptable threat to the stability of the western wall; and that the excavation at its then level should be filled in as soon as possible.
If there had been any suggestion from Mr Finnegan that any trenching was to be done against or in the vicinity of the wall, I am sure that it would have sounded alarm bells for Mr Goldie, and that he would have advised emphatically against digging a trench or in any other way further deepening the excavation.
I accept also Mr Goldie’s evidence that he read through to Mr Finnegan the part of his report in which he stated that the material, being what he had thought was “the base of the adjoining building”, could be removed to the same depth as the surrounding excavation, but not so as to undermine the strip footing, and further, that the excavation not be deepened and that it should be filled in quickly.
That these matters did not register on Mr Finnegan is surprising, given the terms of the report. I can only conclude that Mr Finnegan did not read the report closely enough and did not pay sufficient attention to what Mr Goldie was saying, and did not fully comprehend what I find to be an emphatic reaffirmation by Mr Goldie of his view that the excavation should not be further deepened.
Given what Mr Finnegan says to have been his assertion to Mr Goldie, more or less at the start of this conversation with Mr Goldie, that “Your report doesn’t seem to have [dealt with] the protrusions”, it is obvious that what reading Mr Finnegan had made of the report, at least had conveyed to him that the material referred to, which Mr Goldie stated clearly might safely be removed, was not the protrusions. But at the same time, equally clearly, Mr Finnegan must have failed to appreciate that Mr Goldie’s plainly expressed opinion was that material could only safely be removed to the same depth as the surrounding excavation [“ie the existing strip footing shall not be undermined”].
Given the obvious dangers inherent in excavating a trench up against the strip foundation, and given the clear terms of Mr Goldie’s report, Mr Finnegan owed a duty not to proceed with any trenching unless he was given clearly to understand that it was safe to do so. I am satisfied that at no time was he given any assurance or instruction to that effect, either form Mr Goldie, or from ABG.
7. The trench
Events moved quickly after Mr Finnegan’s discussion with Mr Goldie.
Mr Finnegan gave an instruction to Mr Dave Edwards to go ahead and remove the protrusions. Mr Edwards passed the instruction on to Mr Murray Hesse.
I pause there to note a point made by Mr Strawbridge of counsel for Performa, which is a point well taken.
It is strange, to say the least, that if Mr Finnegan believed that he had been given the all clear to dig the trench, that he should have instructed Mr Edwards at this time only to deal with the protrusions. As will be seen, his evidence is that he gave the instruction to dig the trench later, after Mr Edwards rang him when the protrusions had been removed. The question arises as to why he did not instruct Mr Edwards in the first place to perform both operations if, as he maintained in his evidence, Mr Goldie had authorised him to proceed to dig the trench.
Mr Hesse had the use of a machine called a 3-tonne Kubota excavator, to which was attached a device called a rock-breaker. He started the process of removing the protrusions using that machine on the morning of 26 November 1999. He had finished by about 1 o’clock in the afternoon.
Mr Hesse then rang Mr Dave Edwards and asked him whether he wanted Mr Hesse to proceed with the trenching. Mr Edwards contacted Mr Finnegan and then rang Mr Hesse back to tell him to continue the work, by digging the trench.
He commenced digging the trench at about 2.30 pm. For the trenching he used the same machine, the Kubota excavator. But he put a different attachment to the front of it, namely a bucket which was connected to the machine by an articulated arm.
To use the machine to dig a trench, the bucket was drawn back into and through the ground, the soil emptied, and the process repeated progressively along the line of the trench.
The question arises as to how it was that Mr Hesse determined precisely where the trench was to be dug. His evidence in chief, on this topic, was in part:
“Q.Can you tell us whether you formed your own view as to where lighting cable was to go, or whether you simply followed a direction given to you by others.
A.I actually went by the plan, yes, which was – it’s got the depth of conduits on the footpath, so I referred back to that drawing. …………
Q.That is 0019, is it, ES-0019.
A.This actual drawing is 101. …………
Q.Did you rely on any other plans in fixing where you had to dig. Are they the two that told you where to dig, or did you look at anything else.
A.No. Those were the ones, from memory.
Q.And you worked that out for yourself, did you, from the plans.
A.Yes, pretty much, yes.
Q.So nobody told you were to dig. You worked it out from the plans did you.
A.Yes.”
It is important to note that the plan from which Mr Hesse worked did not contain measurements; it was indicative only. Effectively Mr Hesse was left to work out for himself where to dig the trench.
Mr Hesse’s evidence in chief as to the process of excavation is as follows:
“Q.Where did you start the excavation.
A.On the southern - southern end of Myers Lane.
Q.Can you describe the journey of your excavator. What did you do then.
A.I commenced digging on the southern end. The material was still quite firm and I proceeded on. The sides were standing up quite well, there was no - sorry -
Q.Don’t let any of us stop you in your answer.
A.There was no collapse or anything that was visible.
Q.I gather the machine operates backwards effectively.
A.That is correct.
Q.To dig you use the buckets of the excavator to excavate soil towards you.
A.That’s right.
Q.You had to dig the trench to a particular level presumably.
A.Yes, I was digging 500 deep.
Q.How do you achieve that result.
A..By the box-out - is kept to the right level, and you can see on the bucket - you check as we go and constantly with tape always check the trench.
Q.Can you describe whether there were any difficulties you had in achieving a trench at an even depth.
A.No, that was quite smooth.
Q.Are you able to form any impression of whether the soil that you were digging out of the trench was wet or dry or subject to any other conditions such as rocks.
A.No, it was a firm material. Moist; it had a good compaction sort of feel to it. It was damp but not wet.
Q.Do you remember seeing anything in particular as you backed your excavator along the line of the Gilbert Motors’ wall digging the trench, anything remarkable.
A.No.
Q.Was there anything that stopped you from seeing the sides of the trench as you backed along the path of your excavator.
A.No.
Q.If the clay had been squeezing out from under the foundation as you travelled leaving some sort of void under the footings, would you have been able to see it.
A.I would have been able to see it.
Q.We have heard that there was a partial collapse of the wall. What can you tell us about that.
A.When the wall actually collapsed it was very, very quick. Like I said, the material was standing up, no problems, and it just - I was just taking another bucket load and I looked back and it all of a sudden came back. I saw the material drop off the side of the footing and the wall actually slid down.
Q.What did you do.
A.I jumped off the machine and ran into the building and asked the people to hop out.
Q.Because you were concerned about -
A.That’s correct.
Q.- their safety.
A.And then I made some phone calls.
Q.Did you remain on the site after that.
A.Yes.
Q.Did you make any observations about the trench over the next period of half an hour to an hour.
A.Yes. Yes. There was water in the actual trench. That was probably about half an hour after it had happened.
Q.Whereabouts.
A.About 15 metres from the southern end. Roughly about halfway I would say.
Q.Did you have any way of knowing where that water had come from.
A.I have no idea.
Q.What about the material that you had dug out of the trench, presumably the material that you had dug out was now sitting on the side of the trench.
A.That is correct.
Q.Can you tell us what you saw in terms of that material, whether it was wet or dry or otherwise.
A.No, that material was firm.” (Emphasis added).
8. The aftermath of the collapse

Mr Finnegan rang Mr Gilbert at about 4.45 pm to say that the wall had collapsed. Mr Gilbert went straight to the site. When asked in evidence to say what he saw, he said:
“.... there was a small excavator approximately half way along the Gilbert Motors’ wall, that is half way from - doesn’t matter I suppose - but from Gilbert Street and it was immediately adjacent to the Gilbert Motors’ wall. I could see the bucket which was hard up against the footing of Gilbert Motors’ wall. The arm tended away from the excavator and the bucket was in the trench they had been digging obviously that afternoon.”
While at the scene Mr Gilbert had a conversation with Mr Finnegan. I accept Mr Gilbert’s evidence that Mr Finnegan told him that he (Mr Finnegan) “had not read the Core report correctly with respect to carrying out further excavation works next to the adjoining wall of Gilbert Motors”.
I accept Mr Gilbert’s evidence that when he saw the trench he was “… … … amazed to see what had been done”.
Mr Gilbert returned to the site the next morning, that is, Saturday morning 27 November 1999. He then noticed fresh scrape marks against the concrete footing. In his opinion, they had been caused by the bucket of the excavator during the process of digging the trench.
On the Friday, Mr Gilbert called Mr Goldie who attended at the scene straight away. Mr Goldie’s evidence was that he got there at about 4.30 pm, but I think it must have been a little later, given the timing of the call which alerted Mr Gilbert to the collapse in the first place.
The scene which confronted Mr Goldie when he arrived was described by him in evidence as follows:
“A.A lot of commotion, a lot of people, fire, police, people milling around, and, as I got closer, the excavator, about two-thirds of the way long the wall, measured from the southern end, with its bucket in the trench, and, basically, I saw the trench. That was the thing that grabbed my attention first; that was what fixated me, and I saw the damaged wall and everything else that was in those photos.
Q.When you say the trench fixated you first, why was that.
A.Because I guess I had, on my drive up there, tried to imagine what would cause this wall to fail since having seen it, and I thought ‘I bet they’ve done something alone those lines’.”
Another engineer, Mr Fowlie, arrived at about 5.45 pm. As I have said, I found his evidence convincing. I have no hesitation in accepting it.
In his report dated 21 November 2002 he described the external damage to the building in this way:
“The continuous concrete strip footing to the western wall had dropped vertically and moved to the west. Diagonal cracking to the brick masonry panels in the western wall was generally apparent. Delamination along horizontal bed joints within the brick masonry panels was also apparent. Joints at the vertical junctions of the brick masonry panels with concrete columns had opened. Cracking to sections of the concrete strip footings, strip footing to column junctions, column to bond beam junctions and within the lengths of bond beams had occurred. Sections of foundation material beneath the continuous strip footings were dislodged. Damage to the western wall was most pronounced in the first seven bays of the building from the Gilbert Street frontage.
At the time of my initial inspection, lengths of service trench excavation had been backfilled with pre-mixed concrete and with excavation spoil. Backfilling had been placed very quickly following the wall and footing failure. This precluded any inspections which may have revealed evidence of slip failures in the foundation soil.
Cracking to the southern wall at its western end was noted. This cracking was near vertical and extended both below the window and above to the level of the top of the parapet. The western window to the office area on the southern wall had shattered. The base of the southern wall at its junction with the western wall had moved to the south, displacing pavers in the footpath.
Raking Acrow props had been installed to provide a degree of support to the worst affected western wall panels and propping beneath the window head on the southern façade had been installed.”
9. The cause of the collapse
There can be no doubt that the failure of the wall was a direct result of the excavation of the trench immediately adjacent to it and below the level of the base of the footing supporting the wall.
All of the expert evidence is consistent with that conclusion. Indeed, it is one which I would be prepared to reach without the assistance of the opinions given by the engineers.
In those circumstances, it is unnecessary to deal with the detail of the technical description by some of the expert witnesses as to the precise manner in which the lateral pressures and vertical loading on the foundation were changed progressively as the excavation proceeded.
It is, however, necessary to deal with the argument advanced principally by ADCIV, that a factor contributing to the collapse of the wall was that it was intrinsically structurally unsound, and further, that water had pooled behind the foundation and that this contributed to the instability which arose when the trench was dug.
The formal expression of those complaints appears in the defence of ADCIV where it is pleaded:
“5.Adciv admits the facts and matters contained in paragraph 33.3 to 33.5 of the Statement of Claim but says that unknown to it, and not identified either by Gilbert or Core, the Western Wall was structurally unsound in that:
5.1    It relied for lateral support upon the steel portal framed building formerly constructed upon the ACC land.
5.2    The Western Wall acted as a retaining wall for a mass of soil approximately 1.1 metres above natural ground level over a distance of approximately 60 metres.
5.3    Notwithstanding that the Western Wall performed the role of retaining wall there was no continuous reinforcing mesh in the footings under the Western Wall.
5.4    Notwithstanding that the Western Wall acted as a retaining wall it was not tied into the structure either at slab level or at footings level.
5.5    As a result of longstanding defect in the gutters and roof sheeting above the Western Wall, water had pooled behind the foundation creating:
5.5.1Lateral hydrostatic pressure on the footing.
5.5.2Loss of support for the footing.
5.5.3An increase in the pressure brought by the retained soil against the Western Wall.”
In my view, those allegations are not made out.
Before the trench was dug, the western wall was an old wall, but sound. There is no evidence suggesting that it relied for lateral support upon any part of the adjoining structure on the Estoril land.
There is no reason to doubt that the wall was constructed according to appropriate standards applicable at the time of its erection. While it is true that techniques and perhaps standards have changed since then, it was sound enough until the excavations by ADCIV, first to box-out the road formation, and then to dig the trench.
I reject expressions of opinion expressed by one or two of the experts, for example, Mr David Combe, questioning the stability of the wall before its failure.
None of them had examined the wall until after its collapse.
The only engineer called who had inspected the wall before the trench was dug was Mr Goldie. He was of the view that the wall was then sound. He conveyed his opinion as to that in the following passage in his report of 24 November 1999:
“The existing structure is in sound condition (ie minimal cracking and movement is noticeable) and is considered to be structurally stable. The excavation, at its current depth, has not undermined the wall on the boundary.” (emphasis added)
Further, I find that there was no problem with water in the vicinity of the foundation which had any material effect on the events leading up to the collapse.
Or alternatively, if there was, it was not a condition attributable to any fault on the part of the plaintiffs.
It is true that on his inspection which he made on 23 November 1999 Mr Goldie found “... the ground immediately adjacent to the wall was found to be saturated and water was ponding on the surface”.[2]
[2] Mr Goldie’s report dated 24 November 1999, P3, tab 12.
However, when Mr Goldie attended at the scene on the afternoon of the collapse, his evidence was that all of the water which he had previously seen was gone.
Mr Fowlie was asked to comment on the observation in Mr Goldie’s report as to the ponding of water against the wall. He was asked in examination in chief:
“Q.... Did you see anything then consistent with that ponding that’s described or was the whole scene obliterated.
A.The condition of the site when I had arrived had altered the whole character of the site in that area so I didn’t see water in that location. I just note that others had.”
I have already referred to Mr Hesse’s evidence that as he dug the trench the soil that he was digging into was firm. Although moist, it had good compaction. He described it as “damp but not wet”.
It will have been seen from the passage from his examination in chief which I have set out above, that he went on to say that as he made some observations over the course of the next half an hour to an hour following the collapse of the wall, he then noticed that “there was water in the actual trench”. He thought that he had observed that “probably about half an hour after it had happened”. He noted that it was about 15 metres from the southern end, roughly about half way along the trench. He said that he had no idea where the water had come from.
Mr Edwards’ evidence was that he arrived at the scene at about 5.00pm. When asked as to whether the soil in the trench was wet or dry, he said in evidence “the soil was wet and, under the section where the footing had failed, it was the consistency of molasses in the bottom of the trench, I suppose would be the best way to describe it.”
I think that the answer to the question of where the water had come from, including Mr Edwards’ evidence, appears in the evidence of Mr Goldie. He said during the course of his evidence in chief:
“Q.Have you given some consideration as to what the potential source might have been to any water that was in the trench and may have caused the clay to look like molasses at one particular point.
A.Yeah; logically I would put that down to - well, considering the time, you know, it wasn’t there when they dug the trench, but it appeared some time after, after the wall had sort of come down into its new position, and it would seem logical that all the roof pluming, the box gutter, fine downpipes and everything like, they inevitably hold water, they don’t just run dry. To me it would be enough when the building shifted into that lower position, it basically would have allowed the stored water in that roof plumbing to make its way out. Obviously, if the downpipe is fractured in that spot it’s going to seep into it, and, after a time, it will find its way into the bottom of the trench. It seems like a logical ....”
I reject the suggestion, principally emanating from ADCIV, that in some way the plaintiffs had failed adequately to maintain the roof, gutters and downpipes, so as to cause water to accumulate under the foundation of the wall, and that this contributed to its failure.
The cause of the failure of the wall was the action of ADCIV in digging the trench hard up against its foundation.
10. Liability
(a) The Corporation
As it was finally developed, the plaintiffs’ case against the Corporation was based upon three arguments.
They were that the Corporation had failed to give a notice which it was required to give pursuant to s 60 of the Development Act 1993; that the Corporation is liable in nuisance by reason of the withdrawal of support which caused the failure of the western wall; and that the Corporation was negligent in failing to prevent the excavation of the trench.
I will deal with each of those arguments in turn.
(i) The Development Act 1993, Section 60.
As I have already found, on and from 21 September 1999, the Corporation became the registered proprietor and owner of the Estoril land. It remained the owner at the time when the trench was dug.
The plaintiffs’ claim is that, in those circumstances, there was an obligation on the Corporation to give notice to the plaintiffs, or at least to the plaintiff Mr Walker in his capacity as owner of the adjoining land, that the trench was to be dug. The contention was that if such a notice had been given, Mr Walker would have sought an independent opinion as to whether trenching in that position would cause any problem, and the collapse of the wall might have been averted.
The obligation to give such a notice was said to arise by reason of s 60 (1)(a) of the Development Act, which is in the following terms:
“60.(1) Where a building owner proposes to carry out building work of a prescribed nature that is, in accordance with the regulations, to be treated for the purposes of this section as building work that affects the stability of other land or premises (the affected land or premises), the following provisions apply:
(a)the building owner must, at least 28 days before the building work is commenced, cause to be served on the owner of the affected land or premises a notice of intention to perform the building work and the nature of that work; and……”
Under s 4(1) of the Development Act, “building owner” is defined to mean “the owner of land on or in relation to which building work is or is to be performed:”
In the same section of the Act, the word “owner” of land is defined to include the owner of an estate in fee simple.
The phrase “building work” is defined in terms which, after referring to certain specific works or activities, includes “any other prescribed work or activity ........”
Regulation 75 of the Development Regulations made under the Development Act, relevantly provides:
“(1).....
(2)Pursuant to s 60 of the Act, work of the following nature is prescribed as building work which is to be treated for the purposes of that section as building work that affects the stability of other land or premises, namely:
(a)an excavation which intersects a notional plane extending downwards at a slope of 1 vertical to 2 horizontal from a point 600 millimetres below natural ground level at a boundary with an adjoining site (as depicted by the example shown as figure 1 in schedule 15); or
(b).....”
Much technical evidence was given as to whether or not the excavation of the trench in question was of a kind which comes within the description set out in the Regulation.
For reasons which I will come to, it is unnecessary to resolve that question.
In my view the case against the Corporation based on s 60 breaks down at a more fundamental level.
In the particular circumstances of the case, I do not consider that it can properly be said that the Corporation was “a building owner” which proposed “to carry out building work of a prescribed nature”.
Even assuming that excavation of the trench constituted building work of a prescribed nature for the purposes of s 60, and accepting that, at the time the trench was excavated, the Corporation was the legal owner of the land upon which the excavation was to be made, I do not think that it could be said to be an owner which proposed to carry out the digging of the trench.
The development approval given by the Corporation was in terms which, having regard to condition 7 which I have quoted above, obliged the developer to see to the construction of the public road (Myers Lane) and envisaged that after it had been constructed to the Corporation’s “specification and satisfaction” the Corporation would accept the road as a public road.
At no time was the Corporation given any design detail which indicated that a trench was to be excavated up against the wall in a position which would attract the application of Regulation 75(2)(a). Neither did the Corporation give any specification which would have had that effect.
The lighting plan submitted to the Corporation did not contain detail which indicated that the trench was to be excavated in such a position. The lighting plan was indicative only and contained no relevant measurements.
In any event, responsibility for construction of the road rested with the developer even after the land was transferred to the Corporation.
In those circumstances it is difficult to see how the Corporation could possibly have given any notice. The most that the Corporation could have done, if, contrary to the view which I have reached, it was obliged to give a notice, was to give a notice which said that a developer had been entrusted with the responsibility of constructing a public road which might or might not involve an excavation of a kind described in Regulation 75.
The fact of the matter is that the decision to excavate the trench where it was dug was a decision taken by ADCIV contrary to the advice which the developer had taken the trouble to obtain through Mr Goldie.
In those circumstances, it is, in my view, impossible to say that at any point in time, either the Corporation or for that matter the developer, “proposed” to undertake building work caught by s 60.
(ii) Nuisance
The plaintiff pleads its case in nuisance as against the Corporation in its Statement of Claim, in the following terms:
“Nuisance by ACC
36.ACC was obliged to provide a right of support to the Walker Land (“the Right of Support”).
37.ACC has failed to provide the Right of Support.
38.As a result of ACC failing to provide the Right of Support, Walker and Gilbert Motor Bodies have suffered the Walker Loss and Damage and the Gilbert Motor Bodies Loss and Damage.”
There is a long line of authority which supports the view that at common law there is a duty cast on the owner of land to maintain support to adjoining land, a breach of which will expose the owner to liability in nuisance.
But I accept the submission of Mr Greenwell of counsel for the Corporation that the duty at common law does not extend to providing support for the additional weight of buildings on the adjoining land. However, if support is withdrawn so as to cause land to subside and the subsidence has not been caused by the additional weight of buildings on the land, the owner of the land is entitled to recover damages both for the subsidence of the land and for the damage to the buildings.
So much was made clear in Dalton v Angus[3].
[3] (1881) 6 App Cas 740
Although the principle to which I have referred has been criticised, it still represents the law in Australia. See, for example, Public Trustee: J A McDonald v Hermann[4]. I quote the headnote:
“Although there is a natural right in an owner of land to have his land supported by the adjoining land of another owner, there is no natural right in an adjoining owner to have the additional weight of buildings on his land supported by the land of an adjoining owner. Such rights as an adjoining owner has to have the additional weight of buildings or other improvements such as filling on his land supported must be acquired. However, if adjacent or subjacent support is withdrawn so as to cause land to subside and the subsidence has not been caused by the additional weight of buildings or other erections upon the land, the owner of such land is entitled to recover damages both for the subsidence of his land and for the injury to his buildings or other erections or improvements even though he may have no right to support in respect of the building or other erections.”
[4] [1968] 3 NSWR 94
Mr Greenwell referred to a number of other cases which support the principle, namely: New South Wales v Lepore[5]; LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd[6]; Hicks v Lake Macquarie City Council[7]; Pantalone and Anor v Alaouie[8]; Butt – Land Law[9].
[5] (2003) 77 ALJR 558
[6] (1988) 4 BPR 9640
[7] (1992) 77 LGRA 261
[8] (1989) 18 NSWLR 119
[9] 4^th Edition, LBC, pp 17-18

Wilson and Dawson JJ go on to refer to certain exceptions or qualifications to the general principle, such as where the employer may be taken to have authorised the act or omission causing the harm. In the course of this part of their judgment, they go on to refer with approval to Stoneham v Lyons (supra)[38].
[38]For a further example of the absorption of the rules relating to strict liability on an occupier into the ordinary law of negligence, see Burnie Court Authority v General Jones Pty Ltd (1993-1994) 179 CLR 520.
Stoneham v Lyons is closely analogous to the present case in the context of considerations bearing upon the potential liability of Estoril. I can see nothing to distinguish that case from the present case.
Having regard to the principles which have now been laid down by the High Court, on the facts of this case it could not be said that Estoril was subject to a non-delegable duty of care with respect to damage to the adjoining property.
It does not follow, of course, that Estoril might not be negligent in some other respect. For example, in its selection of ADCIV as a contractor to carry out the works. However, ADCIV was an experienced contractor in this area and no criticism can be levelled at Estoril in that respect.
Estoril did not become aware of any concern over the carrying out of works immediately against the western wall until contacted by Mr Gilbert. Once contacted by him, it could not be said that it acted anything other than responsibly and with appropriate care.
Following the call from Mr Gilbert to Mr Haynes, Estoril was instrumental in securing the engagement of Mr Goldie of Core Engineering to examine the wall. There can be no question about his competence to provide advice in the matter.
The advice he gave was sound. As soon as Estoril received the report from Mr Goldie, it passed it on to Mr Gilbert. In doing so, it was entitled to assume that Mr Gilbert would take the steps necessary in order to implement the advice which had been given.
Responsibility for the fact that ADCIV failed to comprehend and act upon Mr Goldie’s opinion as expressed in the report cannot be sheeted home to Estoril.
No case is made out by the plaintiffs against Estoril.
(c) Performa
As I have explained earlier in this judgment, Performa was nothing more than the agent of Estoril to apply for development approval for the Estoril development. Performa had no direct involvement in that development and did not contract with either ABG or ADCIV.
The allegation in paragraph 15 of the Statement of Claim that Estoril engaged Performa “as its agent to develop the Estoril land including the excavation of the trench” is not made out.
There is no evidence which elevates the position of Performa beyond that of an agent of Estoril for the limited purpose to which I have referred.
It follows that the plaintiffs have not made out a case against Performa.
(d) ABG
In their Statement of Claim, the plaintiffs allege the following breach of duty as again ABG.
“54.Gilbert owed Walker and Gilbert Motor Bodies a duty of care:
54.1to prevent the excavation of the Trench;
54.2alternatively to prevent the excavation of the Trench without the Temporary Works.
55.Gilbert breached its duty of care by failing to prevent the excavation of the Trench or alternatively by failing to prevent the excavation of the Trench without the Temporary Works.”
Earlier in the Statement of Claim, the expression “temporary works” is defined as “temporary works .... to continue the right of support and to protect the integrity of the support to the western wall”.
In support of its contribution notice against ABG, ADCIV advanced the argument that ABG was responsible for the position of the lighting trench, and that in some way Mr Gilbert was at fault in having, as it was suggested by ADCIV, “abdicated responsibility for the position of the lighting trenches”.[39]
[39] Written submissions, par 10.10.
In my opinion, however the case against ABG is developed, no ground is made out upon the basis of which it would be proper to hold ABG liable.
Mr Gilbert did not hold himself out as having the expertise necessary to design the street lighting for Myers Lane, of which the trench was an integral part, or to draw up specifications for the provision of lighting.
Estoril could have engaged ABG to attend to those things, in which event no doubt Mr Gilbert would have engaged a consultant with the necessary expertise.
Instead, Estoril directly contracted with Norm Tec, who prepared the design drawing for the public lighting. Mr Gilbert was sent a copy of the drawing but did not take responsibility for it.
When ADCIV was ready to dig the trench for the lighting conduits, ABG did become involved. Their involvement arose because of the approach by Mr Hesse of ADCIV to Mr Cameron of ABG on the occasion when Mr Hesse drew attention to the protrusions on the western wall.
Mr Cameron’s reaction on behalf of ABG was appropriate. He directed that no further work be done against the western wall until ABG had had an opportunity to consider the matter.
When Mr Cameron reported to Mr Gilbert, the latter’s response was equally appropriate, in that he recommended that an independent consulting engineer be engaged to address the problem.
The only question arising during the course of the events which led to the collapse of the wall as to which I have harboured some concern as to the position of ABG, is as to Mr Gilbert’s reaction to Mr Goldie’s report.
I have considered the question whether or not the appropriate response to receipt of Mr Goldie’s report should have been for Mr Gilbert to take the initiative and immediately organise a meeting on site with Mr Goldie, given that by then Mr Gilbert was aware that ADCIV was intending to excavate the lighting trench close to the western wall.
Instead, when Mr Gilbert contacted Mr Finnegan on the day before the collapse occurred, Mr Gilbert simply referred Mr Finnegan on to Mr Goldie.
Strictly, Mr Goldie had no authority to authorise anything to be done on site. His status was simply as a consultant to advise on the stability of the wall. Of course, the intention was that he advise on the removal of the protrusions, but for the reasons that I have explained, the instructions to him fell short of directing him to that issue.
Be that as it may, having spoken to Mr Goldie, there was no reference back to Mr Gilbert by ADCIV. ADCIV simply proceeded first to remove the protrusions and then to dig the trench.
In the result, a combination of circumstances arose which left Mr Gilbert out of the decision making process to dig the trench in the position in which ADCIV proceeded with the excavation.
As to the adequacy of the response of Mr Gilbert to his receipt of Mr Goldie’s report, the following passage in Mr Gilbert’s evidence in chief is apposite:
“Q.Subject to what was in the Core report, what did you envisage occurring after receipt of the structural engineer’s report.
A.I envisaged that Mr Finnegan would talk to Owen Goldie, the author of the report. He would then contact me. We would arrange a joint meeting between ourselves, the contractor, Core Engineering and the Council.
Q.For the purpose of.
A.Discussing the works in Myers Lane immediately adjacent to the western wall of Gilbert Motors.
.............
A.We would have had a meeting to discuss the report fully with Owen Goldie. I would involve Council, the contractor and ourselves.
Q.You were saying that that is what you would have followed up if he had rung.
A.Yes.”
A difficulty for ABG is that, contrary to Mr Gilbert’s evidence, I have found that, more likely than not, Mr Finnegan did ring Mr Gilbert on 25 November 1999, when he was referred to Mr Goldie. Why then did not Mr Gilbert go ahead and arrange the meeting which, in the passage of evidence to which I have just referred, he said that he would proceed to do?
The answer lies in the content of the phone call from Mr Finnegan.
There is no evidence from Mr Gilbert as to that, as he denies that the call took place.
However, Mr Finnegan’s evidence as to the phone call, is as follows:
“A.Next morning I had various meetings and got caught up during most of the day. I spoke to Allen somewhere in the vicinity of around 3 o’clock in the afternoon. I’m not sure whether he rang me, or whether I rang him.
Q.Do you remember the conversation at all.
A.It was fairly brief. I noted that the report hadn’t really made any reference to the protrusions on the wall and Allan said to me, ‘Well, you’d better speak to Owen Goldie. Make sure you ring him’, and I said OK.
Q.Did you discuss any other aspect of the report with Mr Gilbert, or was it just that he was directing you to Allan Goldie.
A.I was to ring Owen Goldie.”
Putting that evidence in context, it seems to me that the phone call from Mr Finnegan simply brought to Mr Gilbert’s attention nothing more than Mr Finnegan’s concern that Mr Goldie’s report had not dealt with the protrusions.
Removal of the protrusions was not something which was of particular concern to Mr Gilbert, except that he was entitled to assume that if the removal of the protrusions might cause a problem with respect to the stability of the wall, Mr Goldie, the expert engaged to advise on that aspect of the matter, would so advise Mr Finnegan.
Mr Gilbert was well aware that he had stopped further work by ADCIV against the western wall. He could not have envisaged that Mr Goldie, given his limited status as an outside consultant, not being a person responsible for the carrying out of the contract works, or for supervising the execution of the works, would give any authority to Mr Finnegan actually to undertake any work against the wall.
Mr Gilbert was entitled to assume that he would hear back from Mr Finnegan or Mr Goldie as to the removal of the protrusions, and depending on what advice was given as to that, Mr Gilbert would be in a position to assess whether it was safe to remove the protrusions, and if so, what further work that might lead to.
Had the course of events proceeded as Mr Gilbert reasonably expected them to, and if ADCIV had suggested that they were obliged to dig the trench up against the wall, given Mr Gilbert’s knowledge of the contents of Mr Goldie’s report, he would have arranged a meeting and endeavoured to work out a means by which the trench could be dug without threatening the stability of the foundation to the wall. There were means by which that could be done, if there was no alternative but to put the trench down against the wall[40].
[40] Various techniques were explained by the engineer, Mr Bay.
However, it was the precipitate action of ADCIV, based on an inadequate understanding of the import of the report of Mr Goldie, and Mr Finnegan’s preoccupation with the removal of the protrusions at the expense of a proper consideration of the dangers inherent in digging the trench up against the foundation, which threw what Mr Gilbert had in mind would eventuate, off course.
I suppose that with the benefit of hindsight one might say that Mr Gilbert could have handled it differently. But I do not think that he was in breach of a duty of care by allowing Mr Finnegan to sort out with Mr Goldie the question of the removal of the protrusions before taking further action. Mr Gilbert was entitled to assume that he would have the further opportunity to address any particular problem which might then arise.
After all, it was Mr Gilbert who had inserted into the first of the design drawings submitted to the Corporation the caveat:
“Road construction method adjacent to existing brick wall (to prevent structural damage to existing building) to be approved by engineer and Council prior to commencing construction.”
My conclusion as to the case against Mr Gilbert is:
Mr Gilbert envisaged from the outset that any construction works adjacent to the western wall would be the subject of approval by both him and the Corporation before construction commenced.
Mr Gilbert and Mr Cameron reacted properly to the situation which arose when attention was drawn to the protrusions on the western wall, by halting any further work against the western wall until an independent report had been obtained.
Nothing passed between Mr Gilbert and ADCIV following the delivery of Mr Goldie’s report which would have alerted Mr Gilbert to the possibility that any further excavation would be proceeded with against the western wall before a joint meeting had been arranged between ADCIV, Core Engineering, the Corporation and ABG.
ABG did not authorise the digging of the trench.
It follows that the allegation that ABG was in breach of a duty of care by failing to prevent the trench from being dug, is not made out.
(e) ADCIV
The findings which I have so far made point clearly towards the conclusion that ADCIV was in breach of its duty of care as the contractor responsible for carrying out the contract works by proceeding to dig the trench when it did, hard up against the footings of the western wall.
For the reasons which I have already explained, Mr Finnegan of ADCIV was preoccupied with removal of the protrusions. He failed to give sufficient attention to the content of the Core report which emphasised what in any event should have been obvious, namely the danger inherent in further deepening the excavation against the western wall, whether by way of digging a trench or simply by lowering the box-out of the new road.
Furthermore, there was a breakdown in internal communications within ADCIV, in that Mr Finnegan says that he was not aware of the instruction from ABG that no further work was to be done near the western wall until ABG had had an opportunity to investigate the matter.
ADCIV, through Mr Finnegan, failed to read Mr Goldie’s report carefully enough to understand that it clearly warned against carrying out any further excavation against the western wall. Mr Finnegan admitted as much in the course of his conversation with Mr Gilbert on the afternoon when the wall collapsed.
Even if by reason of the fact that Mr Finnegan and Mr Goldie were to a certain extent at cross purposes in the conversation which Mr Finnegan had with Mr Goldie when he rang him after speaking to Mr Gilbert, nothing was said by Mr Goldie to convey the impression that it was in order to proceed with the excavation of the trench. Furthermore, ADCIV was in breach of its duty of care by leaving it to the excavator operator, Mr Hesse, to work out for himself from plans which gave no precise measurements, as to where the trench was to be dug.
(f) Core Engineering
Having regard to my factual findings, I am unable to perceive that there is any basis made out to attribute any fault to Core Engineering.
Mr Goldie acted promptly and efficiently when asked to examine the site in the vicinity of the western wall. It was not his fault that he was not shown the protrusions or asked his opinion as to their removal.
His examination of the soundness of the western wall and the formation by him of his opinion that it was clearly undesirable to deepen the excavation against the western wall any further, were matters which arose on his own initiative. In taking the initiative and in addressing that issue, he was acting with due care.
The advice he gave was correct. When he advised against deepening the excavation and keeping it drained, it could not be suggested that the advice was other than sound. Of course, he was not to know that a further excavation was contemplated in the form of a trench. When he spoke of an excavation, he was referring to the deepening of the box-out of the road and whatever further excavation might be necessary in order for the road construction to proceed.
When, out of the blue, as it were, he received a call from Mr Finnegan, he responded appropriately, explaining that what he had been shown towards the northern end of the wall could safely be removed, but at the same time repeating the terms of his report as to the fact that the excavation should not be deepened.
If the true position had been explained to him, I have no doubt that he would have repeated his warning against excavating further, and contacted Estoril or Mr Gilbert.
No case has been made out against Core Engineering.
11. The Development Act 1993, Section 72
This section is in the following terms:
“Negation of joint and several liability in certain cases
72. (1) If -
(a)building work is defective; and
(b)the defect or defects arise from the wrongful acts or defaults of two or more persons; and
(c)those persons would, apart from this section, be jointly and severally liable for damage or loss resulting from the defective work; and
(d)an action is brought against any one or more of those persons to recover damages for that damage or loss,
the court may only give judgment against a defendant, or each defendant, for such amount as may be just and equitable having regard to the extent to which the act or default of that defendant contributed to the damage or loss.
(2) An act or default for which a person is vicariously liable will be taken to be an act or default of that person for the purposes of this section.”
If I had found that the damage to the western wall arose from the “wrongful acts or defaults of two or more persons” I would have been obliged to consider the application of the section.
Insofar as I have found that the only person or entity guilty of a wrongful act or default leading to the damage to the western wall was ADCIV, it is strictly unnecessary to consider the difficult questions which would arise if it had been necessary to consider and apply the section.
However, if I should be wrong in the conclusion which I have reached that Estoril is not liable to the plaintiffs, the question would arise as to how s 72 should be applied, as between Estoril and ADCIV.
I note at the outset that at first blush, the expression “defective building work” might be thought to be limited to the state of a completed building. However, the Full Court has held that s 72 (1)(a) applies to acts of negligence occurring during the course of construction of a building: see Glenmont Investments Pty Ltd v O’Loughlin and Ors (2)[41]. In their joint judgment in that case, Doyle CJ, Nyland and Martin JJ said[42]:
“We are ….. prepared to accept that s 72(1)(a) applies to carelessness in the course of dismantling the enclosure that is tortious or a breach of contract. We accept the submission notwithstanding the awkwardness of describing such carelessness as defective building work. We consider that s 72 must have been intended to embrace what might be called casual acts of negligence and casual breaches of contract, and that the section is not limited only to what might be called inherent defects in a building.”
[41] (1999) 79 SASR 185
[42] Ibid 200-201
If one then moves to consider what proportion of the total judgment should be entered against Estoril and what proportion should be entered against ADCIV, having regard to what is “just and equitable”, there is a difficulty in expressing a view as to this aspect of the matter given the fact that I have exonerated Estoril from any degree of fault.
Certainly for the reasons which I have given, Estoril is not guilty of any breach of duty with respect to its own conduct in the matter. If it should in some way be liable for the actions of ADCIV on the basis that (contrary to my finding) they owed some sort of non-delegable duty to the plaintiffs, I would still not be prepared to accept that it would be “just and equitable” for any proportion of the plaintiffs’ judgment, to be awarded against Estoril pursuant to s 72.
As I have been at pains to point out, neither in its terms of engagement of ADCIV nor in its response to the situation which arose when Mr Gilbert raised with it a question as to the condition of the western wall, was it the case that Estoril acted other than reasonably.

For the purposes of s 72, if the section was applicable, the whole of the responsibility for the damage to the wall must be attributed to ADCIV.
In reaching that view, I take some comfort from the approach taken by the Full Court in Ginos and Associates Pty Ltd v NBD Bank NA and Anor[43].
[43] (1998) 197 LSJS 106
In that case the owner of land who had contracted with a builder for the erection of a house, sued for damages after a corner of the house subsided requiring underpinning.
A consulting engineer who had designed the foundations was joined as a defendant.
The builder was held to be in breach of the statutory warranty prescribed by s 27(2) of the Builders’ Licensing Act, but not otherwise at fault. In the course of his judgment in that case, with which the other members of the Court agreed, Cox J observed[44]:
“The only wrongful act or default on Tiling’s [the builder’s] part upon which Ginos [the consulting engineer] could possibly rely is its breach of the statutory warranty. On that footing it was proper for the learned judge to hold, as he did ….. that any judgment given under s 72 should be against Ginos alone. It would not be just and equitable to regard Tiling as having contributed significantly to NBD’s damage or loss”. (Emphasis added).[45]
[44] Ibid 111
[45] Other cases referred to in argument as to Section 72 were: NBD Bank v South Italy Tiling SA and Anor; [1997] SADC 3596]; Parletta Constructions Pty Ltd v Prince and Ors (2000) 206 LSJS 456; and Kinnane v Zee Homes Pty Ltd [2003] SASC 187.
12. Final conclusions
For these reasons I would dismiss the plaintiff’s claim against all defendants except ADCIV.
I would dismiss the third party proceedings against Core Engineering.
I would make no orders on the various contribution notices.
The plaintiff is entitled to judgment against ADCIV in the amount which has been agreed.
I will hear counsel as to whether the agreed quantum should be adjusted to reflect an allowance for further interest, or for any other reason.
I will hear counsel as to costs.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT
¹See Certificates of Title Register Book Volume 4139 Folio 360 and Volume 4139 Folio 361.
²Mr Goldie’s report dated 24 November 1999, P3, tab 12.
³(1881) 6 App Cas 740
⁴[1968] 3 NSWR 94
⁵(2003) 77 ALJR 558
⁶(1988) 4 BPR 9640
⁷(1992) 77 LGRA 261
⁸(1989) 18 NSWLR 119
⁹4^th Edition, LBC, pp 17-18
¹⁰p 27
¹¹Vol 33 Torts Section 33.7 par 24
¹²(1984) 36 SASR 498
¹³Ibid 502
¹⁴Ibid 502
¹⁵(1876) 45 LJQB 545
¹⁶(1888) 40 Ch D 71
¹⁷(1874) LR 18 Eq 303
¹⁸Written submissions p 16
¹⁹(2002) 194 ALR 337
²⁰(1975) 133 CLR 550
²¹Ibid 574-575
²²[1934] 1 KB 191, at p 197
²³[1936] 2 All ER 633
²⁴[1970] 1 QB 324
²⁵(1939) 39 SR (NSW) 156, at p 167-170
²⁶[1947] AC 156
²⁷[1921] 2 AC 465, at p 477, 490-491
²⁸(1985-1986) 160 CLR 16
²⁹See per Mason J at p 160 CLR 30 and Wilson and Dawson JJ at p 43-44
³⁰Ibid 42-43
³¹(1940) 64 CLR 514, at p 522-523
³²(1951) 83 CLR 553, at p 566-567
³³(1953) 87 CLR 619, at p 645
³⁴(1980) 146 CLR 40, at p 47-48
³⁵[1934] 1 KB 191
³⁶(1939) 9 SR (NSW) 156
³⁷(1840) 6 M & W 499 [151 ER 509]
³⁸For a further example of the absorption of the rules relating to strict liability on an occupier into the ordinary law of negligence, see Burnie Court Authority v General Jones Pty Ltd (1993-1994) 179 CLR 520.
³⁹Written submissions, par 10.10.
⁴⁰Various techniques were explained by the engineer, Mr Bay.
⁴¹(1999) 79 SASR 185
⁴²Ibid 200-201
⁴³(1998) 197 LSJS 106
⁴⁴Ibid 111
⁴⁵Other cases referred to in argument as to Section 72 were: NBD Bank v South Italy Tiling SA and Anor; [1997] SADC 3596]; Parletta Constructions Pty Ltd v Prince and Ors (2000) 206 LSJS 456; and Kinnane v Zee Homes Pty Ltd [2003] SASC 187.

[2004] SASC 98

16 April 2004