Court of Appeal (WA)|2009-10-21|Before: Lure JA, Miere J, Martin J, Templeman J

DREXEL LONDON (a firm) -v- GOVE (BLACKMAN) [2009] WASCA 181 (21 October 2009)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : DREXEL LONDON (a firm) -v- GOVE (BLACKMAN) [2009] WASCA 181

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : GOVE -v- BLACK & ORS [2006] WASC 298

File No : CIV 2375 of 1997, CIV 2370 of 1997, CIV 2371 of 1997, CIV 2373 of 1997, CIV 2374 of 1997, CIV 2376 of 1997, CIV 2377 of 1997, CIV 2378 of 1997, CIV 2381 of 1997, CIV 2382 of 1997, CIV 2398 of 1997, CIV 2411 of 1997, CIV 2412 of 1997, CIV 2413 of 1997, CIV 2414 of 1997, CIV 2415 of 1997, CIV 1202 of 1998

Torts - Negligence - Balcony collapse - Lack of redundancy in structural design - Substitution of oregon for jarrah - Failure to eliminate or reduce moisture traps

Liability of engineer - Whether structural information incorporated in design of balconies obtained from engineer - Whether engineer assumed responsibility for structural design - Failure to identify deficiencies

Liability of architect - Whether architect shared responsibility for structural design - Whether architect observed or should have observed substitution of oregon for jarrah - Whether failure to notify builder of substitution causative - Whether risk of structurally significant wood rot due to moisture traps reasonably foreseeable - Whether reasonable to eliminate or materially reduce risk - Causation

Liability of strata company - s 35(1)(c) Strata Titles Act 1985(WA) - Statutory duty to keep in good and serviceable repair and properly maintain common property - Scope and purpose of statute - Whether duty is strict - Whether breach of duty gives private right to damages - To whom duty is owed

Liability of local council - Statutory requirement to inspect building and certify consistency with building plans and specifications - Limited inspection of building - Failure to identify substitution of oregon for jarrah - Whether common law duty of care owed to visitors of building - Breach - Causation - Apportionment of damages

Conveyancing (Strata Titles) Act 1961 (NSW), s 4(3), s 20(2)

Strata Titles Act 1966 (WA), s 4, s 5(6), s 13(4)(b), s 13(4)(h), s 20

Grounds 2, 3 and 6 upheld; grounds 1, 4 and 5 dismissed

Seventh Respondent : Mr A S Bell SC & Mr J G Staude

Twelfth Respondent : Mr A S Bell SC & Mr J G Staude

Thirteenth Respondent : Mr A S Bell SC & Mr J G Staude

Fourteenth Respondent : Mr A S Bell SC & Mr J G Staude

Fifteenth Respondent : Mr A S Bell SC & Mr J G Staude

Sixteenth Respondent : Mr A S Bell SC & Mr J G Staude

Seventeenth Respondent : Mr B W Rayment QC & Mr G R Hancy

Eighteenth Respondent : Mr M Corboy SC & Mr S F Popperwell

Seventh Respondent : Mr A S Bell SC & Mr J G Staude

Eleventh Respondent : Mr A S Bell SC & Mr J G Staude

Twelfth Respondent : Mr A S Bell SC & Mr J G Staude

Thirteenth Respondent : Mr A S Bell SC & Mr J G Staude

Fourteenth Respondent : Mr A S Bell SC & Mr J G Staude

Fifteenth Respondent : Mr A S Bell SC & Mr J G Staude

Sixteenth Respondent : Mr A S Bell SC & Mr J G Staude

Seventeenth Respondent : Mr A S Bell SC & Mr J G Staude

Eighteenth Respondent : Mr B W Walker QC & Mr P Mendelow

Eleventh Appellant : Mr A S Bell SC & Mr J G Staude

Thirteenth Appellant : Mr A S Bell SC & Mr J G Staude

Fourteenth Appellant : Mr A S Bell SC & Mr J G Staude

Fifteenth Appellant : Mr A S Bell SC & Mr J G Staude

Sixteenth Appellant : Mr A S Bell SC & Mr J G Staude

Seventeenth Appellant : Mr A S Bell SC & Mr J G Staude

First Respondent : Mr B W Rayment QC & Mr G R Hancy

Fourth Respondent : Mr B W Walker QC & Mr P Mendelow

Sixth Respondent : Mr M Corboy SC & Mr S F Popperwell

Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167

Albion Insurance Co Ltd v Body Corporate Strata Plan 4303 [1983] VicRp 94; [1983] 2 VR 339

Amaca Pty Ltd v Hannell [2007] WASCA 158

Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408

Caledonian Collieries Ltd v Speirs [1957] HCA 14; (1957) 97 CLR 202

Cole v Tweed Heads Rugby League Football Club Ltd [2004] HCA 29; (2004) CLR 469

Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 200 CLR 1

Devries v Australian National Railways Commission (1993) 177 CLR 472

Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317

Fimiston Mining NL v Western Reefs Ltd (1996) 14 WAR 387

Florida Hotels Pty Ltd v Mayo [1965] HCA 26; (1965) 113 CLR 588

Fractionated Cane Technology Ltd v Ruiz-Avila [1988] 2 Qd R 610

Galashiels Gas Co Ltd v O'Donnell [1949] UKHL 2; [1949] AC 275

Gove v Black [2006] WASC 298

Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540

Gration v C Gillan Investments Pty Ltd [2005] QCA 184; [2005] 2 Qd R 267

Hamilton v National Coal Board [1960] 2 WLR 313

Jacklin v Proprietors of Strata Plan No 2795 [1975] 1 NSWLR 15

Lubrano v Proprietors of Strata Plan No 4038 (1993) 6 BPR 13,308

Marc Rich & Co AG v Bishop Rock Marine Co Ltd [1995] UKHL 4; [1996] 1 AC 211

March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506

Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313

O'Conner v SP Bray Ltd [1937] HCA 18; (1937) 56 CLR 464

Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180

Perrett v Collins [1998] 2 Lloyd's Rep 255

Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492

Proprietors of Strata Plan 159 v Blake (1986) NSW Strata Titles Cases 30-086

Proprietors of Strata Plan No 464 v Oborn (1975) 1 BPR 9623

Proprietors Strata Plan No 30234 v Margiz Pty Ltd (1993) 7 BPR 14,458

Pyrenees Shire Council v Day [1998] HCA 3; (1998) 192 CLR 330

Reeman v Department of Transport [1997] EWCA Civ 1355; [1997] 2 Lloyd's Rep 648

Ridis v Strata Plan 10308 [2005] NSWCA 246; (2005) 63 NSWLR 449

Roads and Traffic Authority v Royal [2008] HCA 19; (2008) 82 ALJR 870

Rolls Royce Industrial Power (Pacific) Ltd v James Hardie & Co Pty Ltd [2001] NSWCA 461; (2001) 53 NSWLR 626

Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434

Seden v The Proprietors 'Tyalla Court' [1978] Qd R 53

Seiwa Pty Ltd v Owners Strata Plan 35042 [2006] NSWSC 1157

Shaddock and Associates Pty Ltd v Parramatta City Council [No 1] [1981] HCA 59; (1980-81) 150 CLR 225

Sovar v Henry Lane Pty Ltd [1967] HCA 31; (1967) 116 CLR 397

Stone James & Co v Investment Holdings Pty Ltd [1987] WAR 363

Strempel v Wood [2005] WASCA 163

Stuart v Kirkland-Veenstra [2009] HCA 15; (2009) 237 CLR 215

Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424

Tame v The State of New South Wales [2002] HCA 35; (2002) 211 CLR 317

Voli v Inglewood Shire Council [1963] HCA 15; (1963) 110 CLR 74

Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491

Woollahra Municipal Council v Sved (1996) 40 NSWLR 101

Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

Yuen Kun Yeu v Attorney-General of Hong Kong [1988] 1 AC 175

1 McLURE JA: These appeals are from orders made by Templeman J in an action for personal injuries resulting from the collapse of a balcony during a New Year's Eve party on 31 December 1996.

2 The party was held at one of eight strata-titled units created from the conversion of a late Victorian industrial building known as the Old Soap Factory. The conversion of the Old Soap Factory, which included the addition of balconies, was substantially completed by November 1982.

3 Lavender Bay Pty Ltd (Lavender Bay), the then owner of the Old Soap Factory, carried out the conversion works as owner-builder. Lavender Bay employed a registered builder, Mr Steven Bumstead, to supervise the works. Lavender Bay went into liquidation shortly after the completion of the conversion and sale of the units. Mr Bumstead died prior to trial.

4 Lavender Bay retained a firm of architects, Drexel London, to provide architectural services, including design drawings and specifications, for the conversion.

5 On Drexel London's recommendation, Lavender Bay retained consulting engineers, Halpern Glick Pty Ltd (Halpern Glick) to provide engineering advice when requested on structural aspects of the conversion.

6 The strata plan for the Old Soap Factory was registered pursuant to the Strata Titles Act 1966 (WA) (the 1966 Act). For that purpose, Lavender Bay obtained a certificate from the City of Fremantle (the City) under s 5(6)(c) of the 1966 Act, stating that the Old Soap Factory had been inspected and was consistent with the building plans and specifications. The body corporate is The Owners of the Old Soap Factory (Strata Title Plan 11175) (the Strata Company).

7 The balconies were not constructed in accordance with the drawings. The balcony collapsed because of a decision by Lavender Bay to substitute oregon timber for the select grade structural jarrah specified by Drexel London. The oregon was so weakened by rot that the balcony failed suddenly and catastrophically. The catastrophic nature of the failure was a result of the failure to incorporate in the balcony design an appropriate degree of redundancy to prevent progressive collapse. Tying the central column of the balcony to the wall of the building would have provided the necessary redundancy.

8 Persons injured in the balcony collapse (the injured claimants) sued, among others, the City and Halpern Glick in negligence and the Strata Company for breach of statutory duty. All but two of the injured claimants sued Drexel London in negligence.

9 The trial judge held that Drexel London was liable in negligence for failing to incorporate an appropriate degree of redundancy in the design of the balcony and in failing to inform Lavender Bay of the consequences of substituting oregon for jarrah.

10 The trial judge held the City liable for negligently certifying that the converted Old Soap Factory was consistent with the building plans and specifications. The claims against the Strata Company, Halpern Glick and others were dismissed. The trial judge apportioned 70% of the liability to the City and 30% to Drexel London.

11 Drexel London, the injured claimants and the City have appealed. Drexel London in its appeal claims the trial judge erred:

(a) in finding that Drexel London had breached its duty of care by failing to incorporate an appropriate degree of redundancy in the balcony design (ground 1);

(b) in finding that Drexel London had observed the use of oregon in the balcony (ground 3);

(c) in finding that the failure to inform Lavender Bay of the use of oregon caused or contributed to the damage (ground 2);

(d) in taking an inconsistent approach to the claims against Drexel London and Halpern Glick (ground 5);

(e) in failing to find that Halpern Glick provided the structural information incorporated in the drawing prepared by Drexel London (ground 6); and

(f) in dismissing the claim against the Strata Company (ground 4).

12 The injured claimants, the Strata Company and Halpern Glick filed notices of contention in the Drexel London appeal. The injured claimants contend the trial judge should have found that Drexel London was negligent in designing a balcony that allowed moisture to be trapped in the structure causing the timber to rot. The Strata Company contends that the 1966 Act does not give the injured claimants a right to claim damages for personal injury. Halpern Glick contends that if it supplied the structural information incorporated by Drexel London in its drawing, it owed no duty of care to Drexel London or alternatively, did not breach its duty.

13 The injured claimants appeal on the grounds that the trial judge erred:

(a) in dismissing their claim against the Strata Company (ground 1);

(b) in dismissing their claim against Halpern Glick (grounds 2 and 4); and

(c) in failing to make a Sanderson or Bullock order against Drexel London and the City in respect of the costs of the successful defendants (ground 3).

14 The injured claimants applied to amend ground 4 to read as follows:

The learned trial judge erred in dismissing the appellant's claim against the sixth respondent (Halpern Glick) in that he erred in fact in failing to find that Drexel London obtained structural advice with respect to the design of the balcony from an engineer from Halpern Glick and that such advice was negligent Halpern Glick was negligent in failing to identify that the design of the balcony failed to provide adequate or sufficient bracing to stabilise the central column of the balcony.

15 The application to amend was opposed by Halpern Glick.

16 The Strata Company and Halpern Glick filed notices of contention in the injured claimants appeal in the same terms as the Drexel London appeal. Halpern Glick also filed a cross-appeal which only arises for determination if the injured claimants succeed in their appeal against Halpern Glick and the Strata Company, the City and/or Drexel London are also liable.

17 The City in its appeal claims the trial judge erred in finding that it owed a duty of care to the injured claimants, that the duty had been breached and that the breach caused the loss. It also challenges the apportionment of liability.

18 The trial judge provided a detailed description of the structure of the balcony. That information is necessary for an understanding of the issues. What follows is taken from the trial judge's reasons.

19 One of the buildings comprising the Old Soap Factory was converted into four units, each having five floors. Units 1 and 4, which are respectively on the southern and northern ends of this building, both had balconies constructed at the first and second floor levels of their end walls. The structure of the balconies was identical. The first floor balcony of Unit 1 was the balcony that failed.

20 The balconies to Unit 1 were approximately 8.1 m wide and 3 m deep. The floor of each balcony was constructed of closely spaced wooden battens nailed to 2.9 m long timber joists, being approximately 190 mm x 48 mm in cross-section. There were 16 joists. The northern ends of the joists were supported by a timber plate of similar cross-section, but about 8 m long, which was bolted to the southern wall of Unit 1 by 'trubolts'. This is the proprietary name for a bolt which is inserted into a hole in the wall and expands into the hole when tightened.

21 The southern ends of the joists were supported by two lengths of timber (referred to as plates) of similar cross-section to the joists. These plates were each about 4 m long, separated by a steel column (the central column) and backed by a steel member (referred to as a beam) which formed the southern edge of the balcony. The timber plates were bolted to the steel beam by stud bolts welded to it at intervals along its length.

22 Oregon, a species of pine, was used for the joists and supporting plates.

23 The design called for the joists to be half-housed into their supporting timber plates. This required slots to be cut into the plates opposite the ends of each joist. The width of the slots would be equal to the thickness of the joists. The slots would extend halfway into the plates and halfway down from the top of the plates. Thus, each slot would be approximately 48 mm wide, 24 mm deep and 95 mm long.

24 The ends of each joist would be cut so that the upper half formed a tongue having dimensions equal to its corresponding slot. If the required cuts had been made accurately, the ends of the joists would have fitted exactly into the plates such that the weight of the balcony would have been supported on 32 points of contact each having an area of 48 mm x 24 mm.

25 In fact, the depth of housing was far less than specified in the design. The trial judge found the depth of housing varied between about 9 mm and 14 mm. The joists were fixed to the plates by skew nails. That is, nails driven through the joists and into the plates at an angle of about 45 degrees.

26 In addition to the central column, there were two steel columns, one at each end of the southern side of the balcony.

27 The eastern and western sides of the balconies were fabricated from steel having the same cross-sectional dimensions as the southern beam. The side (steel) beams, to which the end joists were attached, 'tied' the end (steel) columns back to the southern wall of the building. The beams were let into the wall and were bolted through it.

28 The end columns were not only tied back to the wall by the side beams, but also by means of 16 mm diameter steel rods and turnbuckle assemblies slung under the joists. Each set of rods was hooked to the steel columns at the southern end of the balcony and at the other end, to a steel plate bolted through the southern wall of the building, immediately below the wall plate.

29 The trial judge made the following findings as to the physical cause of the collapse:

I find ... that the balcony collapsed because the oregon timber from which the southern supporting plate had been cut, was so weakened by rot that it failed suddenly, somewhere in the region of the south-eastern corner. The cause of the rot was the moisture trapped between the southern support plate and the outer steel beam [86].

The failure of the southern support plate caused the joists in that region to fall, thereby creating a wedging effect on the composite southern supporting plate and steel beam. The wedging effect caused the outward deflection of the structure, thus reducing the bearing areas of the joists on their support plates [87].

...

Because the central column was not tied back to the southern wall of the building there was nothing to prevent or restrict the operation of the mechanism described above. The collapse was therefore rapid and complete [89].

If the balcony had been constructed of jarrah, rather than oregon, it would not have rotted to the same extent: and the balcony would not have collapsed as or when it did [90].

If the joints connecting the joists to their supporting plates had been fully half-housed, the structure would have been stronger, but the failure would still have occurred. That is because of the magnitude of the horizontal force created by the wedging effect of falling joists. I accept the expert evidence that half-housing was considered to be an acceptable means of joining the joists to the supporting plates [91].

If the central column had been tied back securely to the southern wall of the building, the collapse would still have occurred to some extent. However, it would not have been catastrophic, so that people on the balcony at the time of the collapse would have been able to escape to the safety of the building [92].

30 Drexel London was the name of the partnership between Ralph Drexel and Geoffrey London. Drexel London commenced acting for Lavender Bay in relation to the conversion of the Old Soap Factory in around October/November 1980.

31 Halpern Glick was instructed on 4 December 1980. Halpern Glick's contract of retainer was with Lavender Bay. It was not a general retainer. Rather, Halpern Glick was appointed as a consultant to be called upon as and when its services were required.

32 Drawings were produced by Drexel London in March 1981. These included a drawing numbered 15 which showed a side elevation of the balconies. Drawing 15 contained a number of structural details set out in notes. The notes included the following:

- all pergola rafters, plates and balcony joists were to be 'select grade structural jarrah';

- each balcony floor was to be constructed on 16 joists made from timber dressed from 175 x 50 millimetres, evenly spaced and half housed into 175 x 50 millimetre plates at each end;

- at the underside of the rafters at the upper level and below the joists at the lower levels, 16 millimetre diameter mild steel rod and turnbuckle assemblies were to be hooked to mild steel eyes 'welded to post and central wall plate'. The plate was to be fixed to the wall with 4 TS-12-7SS stainless steel trubolts.

33 There was a further note on drawing 15, positioned above the depiction of the balconies. It was as follows:

Balconies generally as noted below and to structural engineer and architects details and specifications.

The details set out in the notes summarised above are engineering, rather than architectural matters. That is to say, the structural integrity of the balconies depended on the correct sizing and appropriate construction of the various elements of the balcony [120].

35 Although drawing 15 contained sufficient structural information to enable Lavender Bay to obtain a building licence, it contained insufficient detail to enable the balconies to be constructed. The trial judge accepted Mr London's evidence that one of the purposes of drawing 15 was to make it clear that further structural engineering and architectural detail would be required [174].

36 Although drawing 15 was produced by Drexel London, the trial judge found that Mr Drexel obtained the structural information contained in that drawing from an engineer [152]. However, the trial judge did not accept Mr Drexel's evidence that the structural information was provided by Halpern Glick [153].

37 With some exceptions, the structural information in drawing 15 appears on two sketches made by Mr Drexel recording the information supplied by the engineer. One sketch shows the plan view of the balcony (the Drexel sketch) with notations as follows:

The three steel columns are shown at the top of the sketch with the steel rods from the end columns meeting at a plate on the southern wall of the building shown on the bottom of the sketch. 'TB' denotes the turnbuckle assemblies.

38 As identified by the trial judge at [149], the notes on the sketches made by Mr Drexel also include the following:

'stainless steel trubolt TS-12-7SS' - in relation to the fixing of the timber wall plate;
a half-housed joist-wall plate joint;
a 200 x 300 millimetre plate, apparently containing eyes which form part of the bracing assembly;
'timber struct. grade karri' - apparently a reference to the appropriate timber for the construction of the balcony;
'150 x 50 @ [610] max. centres' - apparently a reference to the joist size;

what appears to be a steel beam 200 millimetres deep and 12 millimetres thick is shown welded by a continuous fillet weld to a 76 x 76 x 5 angle iron. This appears to be the exterior steel beam at the extremity of each of the balconies.

39 Mr Drexel made some changes to what was specified by the engineer. The changes shown on drawing 15 include the specification of jarrah not karri and an increase in the size of the steel rods, joists and angle irons. The trial judge accepted Mr Drexel's evidence that he decided to specify jarrah in place of karri because it was a stronger timber and that he increased the size of the rods, joists and angle irons in order to increase the strength of the structure. Mr Drexel did so because, in his experience, engineers specified minimum sizes. He said it was not uncommon for him to improve on an engineer's specification and that he was competent to do so.

40 The trial judge found that Halpern Glick was not asked to check the balcony drawings or (with one exception) to provide any of the missing detail [175].

41 Drexel London's initial understanding was that after completion of the design development stage and Lavender Bay's acceptance of the design and the builder's cost estimate, they were to proceed with traditional contract documentation. By that is meant a building contract between Lavender Bay and a builder with Drexel London having contract administration and supervision duties under the building contract. The expectation was that an Edition 5b Lump Sum Contract (produced by the Royal Australian Institute of Architects and the Master Builders Federation of Australia) would be used.

42 At the time Drexel London produced the drawings in March 1981 Lavender Bay was undecided as to how it would proceed [259]. By early April 1981 it had decided to undertake the conversion of the Old Soap Factory as owner-builder and engage Mr Bumstead [263]. A building licence was issued on 16 June 1981 [364].

43 Drexel London had prepared a specification on the basis that Lavender Bay would enter into a contract with a builder in the traditional way [266]. The trial judge accepted Mr Drexel's evidence that the specification 'was not intended to apply universally' once it was decided that the conversion was to be carried out by Lavender Bay as owner-builder [274]. The judge also accepted that Drexel London had no contractual obligation to Lavender Bay in relation to contract administration or supervision [275], [284].

44 During the course of construction, either one or both of Mr Drexel and Mr London attended weekly site meetings [276]. The trial judge accepted that Drexel London had no authority to give instructions to Mr Bumstead but that decisions at site meetings were reached as a result of discussion [280] - [281]. The trial judge concluded that Drexel London was required to monitor the progress of the work as far as was reasonable in the course of the weekly site visits, and at the very least, to advise their client if they became aware of any defective workmanship [285].

45 The steel work for the balconies was fabricated by an organisation known as Phillips Engineering. The trial judge found that the steel work could not have been fabricated without the preparation of shop drawings. Such drawings contain sufficient detail to enable the steel to be cut and welded as appropriate [176]. Shop drawings for the steel work for the balconies were prepared by Philips Engineering [193].

46 Mr Jeffrey Welch was employed as a site inspector by Halpern Glick. He had worked as a structural design and civil draftsman but had no engineering qualifications. As a site inspector, Mr Welch's duties included visiting the building site to check work in progress to ensure it was being carried out in conformity with Halpern Glick's designs and specifications. The trial judge accepted Mr Welch's evidence that it was his job to look for non-approved structures and make sure whatever was happening on site conformed to the requirements of the engineer. Had he discovered that there was a non-approved structure he would have been 'pushing all the alarm bells because that was what I did' [185].

47 The minutes of a site meeting on 7 April 1982 record the following in relation to the balconies for units 1 and 4:

Halpern Glick and Phillips Engineering to liaise closely on tying and bolting decks back to existing building to ensure absolutely secure and permanent security of the decks, building and fittings.

48 The judge found that Mr Welch attended at site on 8 April 1982 as a result of the decision recorded in these minutes [194].

49 Other minutes which, although undated, appear in the sequentially numbered pages of the minute book between the minutes of site meetings on 31 March and 7 April 1982, record under the heading 'Balconies':

Halpern Glick to be in attendance when being installed to make sure balconies comply with their design.

50 On 8 April 1982 Mr Welch attended the Old Soap Factory site at the request of Mr Bumstead. Mr Welch subsequently prepared a Halpern Glick site report in which he set out the detail of the matters he had been asked to address. The report notes:

The erectors of the steel work had experienced difficulty in securing horizontal bracing to the brick wall in that the trubolts fixing the anchor plates pulled out when tension set in to braces via the turnbuckles. Alternative fixing details were discussed with Bumstead and the following agreed to: ...

51 Mr Welch proposed that the steel plate carrying the ends of the bracing rods should be secured to the southern wall of the building by bolts which passed through the wall [187]. Mr Welch also noted there was no system for attaching the returns of the steel beams forming the eastern and western sides of the balconies to the building [188]. Mr Welch discussed this matter with Mr Bumstead and provided the missing detail, which involved welding a right angle cleat onto the beam end and securing the cleat with a bolt passing through the brick wall [189]. The trial judge continued:

It is apparent also that Mr Welch noted that the central column on the southern side of the balcony was not secured to the southern wall by a tie rod as were the corner columns. On his sketch, Mr Welch noted that the central column was to be 'tied back by joists'. He did not, however, provide any detail as to the way in which that tying back would be achieved [190].

52 Mr Welch's sketch with relevant annotations is as follows:

The southern wall of the building with the anchor plate is shown on the right side of the sketch and the three steel columns on the left side.

53 The trial judge accepted Mr Welch's evidence generally [192]. Based on that evidence he found that although the Drexel London drawings had been given to Halpern Glick in May 1981, Halpern Glick had not provided any of the missing detail because there had been no request to do so [193]. He also found that the shop drawings were prepared by Phillips Engineering without input from Drexel London or Halpern Glick [193].

54 The trial judge inferred the balconies had been completed, or were nearing completion, by 9 June 1982. By that stage the decision to use oregon rather than jarrah must have been taken. The trial judge found the decision was not made at a site meeting. He continued:

I accept the evidence of Mr Drexel that Mr Bumstead was a competent builder. A registered builder such as Mr Bumstead would have known that oregon was not suitable as a structural timber for exterior use. I therefore draw the inference that Mr Bumstead did not substitute oregon for jarrah on his own initiative.

I accept that neither Mr Drexel nor Mr London were told about the substitution and that they did not suggest or authorise it. The inference is therefore overwhelming that the substitution was carried out on the instruction of Lavender Bay [202] - [203].

55 At the end of June 1982 Mr Drexel and Mr London were asked to prepare a list of items to be rectified and completed [204]. The trial judge found that the inspection list was prepared as a result of inspections carried out by Mr Drexel and Mr London over a number of visits [205]. The trial judge also found that at one of these inspections Mr Drexel and Mr London observed that oregon had been substituted for jarrah [228]. I return to this issue below.

The findings against Drexel London on redundancy

56 The injured claimants' pleaded case against Drexel London was that it failed to provide for stabilising bracing of the central column of the balcony.

57 The trial judge accepted the expert evidence of Mr Donald Phillips, an engineer, that all structures should be designed with some degree of redundancy so as to prevent progressive collapse [246]. That is, elements should be included in a structure which will permit loads to be distributed to other elements in the event of a failure. The purpose of the redundant member is to prevent what would otherwise be a catastrophic failure of the structure [70]. The trial judge continued:

That being so, I conclude that an architect is negligent if his design does not incorporate an appropriate degree of redundancy [246].

In the present case, there was no redundancy in the southern composite supporting plate and beam structure. That is to say, there was nothing to restrain the outward movement of the structure in the event of a deck collapse [247].

I have accepted the evidence of those experts whose opinion it was that a restraint on the central column would have prevented (at least) the catastrophic collapse of the balcony. Mr Drexel's argument is that:

' ... If [the balcony] had been built in jarrah and the connections were correctly done, I don't think there would have been any real risk of that column moving out' (TS 717) [248].

I do not accept that proposition. It was obvious to Mr Welch that the central column should be tied back. He had plans which specified jarrah: and he had no reason to suppose that the joists would be cut inaccurately. In other words, even though the risk of the column moving outwards was small, it was a risk which could easily have been eliminated: and in my view, should have been [249].

I therefore consider that Drexel London were negligent in failing to incorporate that stabilising element in their design of the balcony. That failure was a cause of the collapse of the balcony and the plaintiff's injury [250].

58 In supplementary reasons apportioning contribution between Drexel London and the City, the trial judge explained why he considered the City far more culpable than Drexel London. He said:

[Drexel London] acted reasonably in obtaining structural advice from an engineer. They are liable for the deficiencies in the design of the balcony because they put it forward as their own [99].

59 The injured claimants also pleaded that Halpern Glick was negligent in not identifying that the design of the balcony failed to provide for stabilising bracing of the central column of the balcony. When addressing that issue the trial judge said:

[I]t is true that the design of the balcony depicted in drawing 15 made no express provision for bracing the central column of the balcony in such a way as to connect the column to the [southern] wall of the building [297].

It is clear that when Mr Welch visited the site on 8 April 1982, he appreciated the need to provide this link. On his sketch he noted that the central column was to be 'tied back by joist'. I accept the evidence of Mr Blake that this would have been an acceptable method of securing the central column. The note therefore served as an advice to Mr Bumstead that the column should be secured in this way [298].

When Mr Welch visited the site, the steel work was being erected. The timber elements of the balconies could not have been constructed until after the steel work had been completed. That being so, Mr Welch would not have been in a position to provide any advice to Mr Bumstead as to the precise method of linking the joist to the central column. That was a matter which, if not within Mr Bumstead's competence as a builder, would have required him to take advice either from Drexel London or Halpern Glick [299].

...

There is no evidence that any representative of Halpern Glick visited the Old Soap Factory to inspect the balconies after 8 April 1982, or was asked to do so [301].

In these circumstances, I consider that Halpern Glick cannot be held responsible for the fact that the design of the balcony did not include any detail for the tying back of the central column to the north [sic] wall of the building. The claim against Halpern Glick must therefore be dismissed [302].

60 The application by the injured claimants to amend ground 4 of their grounds of appeal raised an issue as to the intended meaning and scope of [298] of the trial judge's reasons. That matter needs to be determined before dealing with the grounds of appeal.

61 The submissions put on behalf of the injured claimants at the hearing of the appeal took an unforeshadowed turn. The injured claimants contended that on the proper construction of [298] in the context of the reasons as a whole, the trial judge did not intend to find that it was acceptable if the central column was 'tied back by joist'. The finding of acceptability they say relates to the central column being tied back by two diagonal braces to the southern wall of the building, being the inverse of the bracing of the end pillars. The term bracing was used at trial to mean steel tie rods.

62 It was said the trial judge could not have intended to find that tying back by joists was an acceptable method of securing the central column because such a finding was inconsistent with other findings made by the trial judge, illogical and irrational. The starting premise for that contention is that Mr Welch's sketch of 8 April 1982 incorporates the same relevant design feature as the Drexel sketch on which drawing 15 was based, namely the central column was to be tied back to the building solely by means of the joists.

63 Both Drexel London and Halpern Glick accept the correctness of that premise. They contend the detail to which the trial judge refers in [190], [299] and [302] relates to the means by which the joists were to be secured to the timber plates fixed to the southern wall of the building and to the timber plates fixed to the steel beams between the columns. The joists were to be half-housed in the plates and fixed by skew nails.

64 The injured claimants on the one hand and Drexel London and Halpern Glick on the other all rely on the evidence of Mr Peter Blake to support their contentions as to the trial judge's intention. His Honour said in [298] he accepted the evidence of Mr Blake that 'tied back by joist' would have been an acceptable method of securing the central column.

65 Mr Blake was an experienced structural engineer in the employ of Halpern Glick and from September 1981 was involved in aspects of the engineering design for the conversion of the Old Soap Factory [145]. Mr Welch was working under Mr Blake's supervision and direction (ts 876) and Mr Blake approved Mr Welch's site report of 8 April 1982.

66 Mr Blake gave evidence that the tie rods to the end columns were there to provide lateral stability in the horizontal direction (ts 881). The cross-examination based on Mr Welch's sketch continued:

DREXEL LONDON (a firm) -v- GOVE (BLACKMAN) [2009] WASCA 181 (21 October 2009)

At a glance

Court

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Before

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Source

Catchwords

Judgment (623 paragraphs)

DREXEL LONDON (a firm) -v- GOVE (BLACKMAN) [2009] WASCA 181 (21 October 2009)

The findings against Drexel London on redundancy

Legislation Cited (15)

Cases Cited (36)