Issue 5: duty of care
210Mr Miller and Mr Roberts addressed me at length, and by reference to many authorities. To some extent, the submissions (in particular, Mr Roberts') proceeded on the basis that the existence of the duty of care was to be considered in the absence of any consideration of retainer.
Duty of care and retainer
211I have found that, probably from 1988 and certainly from January 1989, Dalton was, and Mr Dalton understood that it was, retained by Dymocks. No formal contract of retainer has been proved. But it does not follow that there was no such contract.
212I do not think that it is necessary to consider all the cases to which counsel referred me. I take the appropriate starting point to be the statement of principle of Windeyer J in Voli v Inglewood Shire Council (1963) 110 CLR 74 at 84:
An architect undertaking any work in the way of his profession accepts the ordinary liabilities of any man who follows a skilled calling. He is bound to exercise due care, skill and diligence. He is not required to have an extraordinary degree of skill or the highest professional attainments. But he must bring to the task he undertakes the competence and skill that is usual among architects practising their profession. And he must use due care. If he fails in these matters and the person who employed him thereby suffers damage, he is liable to that person. This liability can be said to arise either from a breach of his contract or in tort.
213I do not understand there to be anything in more recent decisions to subvert the proposition that a common law duty of care may exist alongside contractual duties. I do accept, of course, that the common law duty of care should be no more than co-extensive with the contractual duties; and that the content of the common law duty of care must take account of specific provisions of the contract (see, by way of example, Astley v Austrust Limited (1999) 197 CLR 1 at [44] to [48] in the reasoning of the majority). But in this case, Dymocks has not argued for any common law duty wider or more extensive than the implied duties imposed on Dalton under a contract or retainer.
214That approach seems to me to be consistent with the reasoning of Kiefel J in Barclay v Penberthy (2012) 86 ALJR 1206 at [170]. Her Honour said in substance that it followed, from the decision in Astley, that a contract for services contained an implied promise to exercise reasonable care and skill in the provision of those services, and that this liability was concurrent in contract and in tort. Thus, her Honour said, "a plaintiff may select the most advantageous action".
Duty of care in the absence of retainer?
215Were it necessary to consider whether a common law duty of care should be imposed in the absence of a contract of retainer, one would need to look at, among other things, questions of assumption of responsibility and known reliance (see, for example, Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515 at [24] in the reasons of the plurality and at [112] in the reasons of McHugh J).
216Mr Dalton seemed to accept that both conditions were present in this case. First, at T145.24-.40, he accepted that he was responsible for the design, including coordinating the input of specialist consultants:
Q. And you have already agreed with me that you were the person responsible for the design, correct?
A. I was responsible also for coordinating the input of specialist consultants whose expertise was required for the project.
Q. Indeed. Part of your retainer as the architect was that, to the extent it was necessary to augment your knowledge with further expertise, your role was to gather that and coordinate it and document it in the specification, correct?
A. Yes.
Q. And you knew that your client was looking to you to discharge that responsibility, correct?
A. Yes.
Q. And you well knew in 1989 that no one from Dymocks or Mr John Forsyth personally had the expertise or function to carry out that task, correct?
A. Yes.
217He accepted, further, that his work included checking relevant specifications (T190.40-191.7):
Q. Sir, yesterday you told me that in 1989 as part of your checking process leading to the documentation of the specification, you had regard to the Lysaght's 1988 document, do you remember that?
A. Yes.
Q. And you told me that you specifically turned it up to ascertain whether stainless steel and aluminium as a connection was acceptable under that document, do you remember saying that to me?
A. Yes.
Q. And the position was, was it not, that you did not at the time in 1989 identify it to so be consistent but you you deferred to the Standard?
A. I deferred to the Standard.
Q. Similarly, is the position that in 1989, you turned up Australian Standard 2312 as part of your checking exercise for the purposes of preparing the roof specification?
A. Yes.
218Against that background, the following evidence given by Mr Dalton is, I think, crucial (T193.48-196.33):
Q. Sir, you, as you agreed with me yesterday, had the responsibility of documenting out the specification, correct?
A. Yes.
Q. You had the responsibility of pulling together the information for the purposes of the roof design, correct?
A. Yes.
Q. To that end, your responsibility involved you liaising with relevant experts where you thought it appropriate, correct?
A. Yes.
Q. To that end, you not only received their information but as you say in paragraph 37, where you got advice, you considered it and checked it and formed your own view, correct?
A. Yes.
Q. You were then, you would agree with me, responsible for pulling together or supervising the engineering design on behalf of the client, correct?
A. I did not supervise the engineering design. I coordinated it.
Q. You coordinated it? What is the difference in the circumstances that I have described between coordinating it and supervising it, in your mind?
A. Supervising would would assume that I had the technical knowledge to determine that the calculations that were carried out by the structural engineer or any other specialist consultant were technically correct in relationship to their level of expertise. I do not have that.
Q. Putting that aside and dealing with corrosion, what you did was receive advice from, you say, Dr Wallwork that dealt with corrosion matters by reference to Standards and you went yourself and checked those Standards for the purposes of informing yourself that the information was correct, do you agree?
A. Yes.
Q. What you were concerned to do was to ensure that the roof design that was going to be provided to the client had incorporated in it all, to your knowledge, relevant information about matters pertaining to corrosion, correct?
A. Yes.
Q. You understood that your client was concerned about corrosion in this location?
A. Yes.
Q. And you understood that your client relied on you to prepare a design that minimised or avoided the risk of corrosion in the metal elements of the roof, correct?
A. That's the reason why I advised him to engage a corrosion consultant.
Q. That is the reason why you took responsibility for gathering all of the information together, correct?
A. That is correct.
Q. And you knew that if the information that was gathered together under your direction was deficient, that your client would end up with a building that was less durable and less corrosionresistant than it otherwise should be, correct?
OBJECTION (ROBERTS)
ROBERTS: That is a very broad proposition.
QUESTION ALLOWED
WITNESS: Please repeat the question.
MILLER
Q. You knew that if there were deficiencies in the information that was gathered and documented by you, that your client would get a building that had a roof that was less durable than it otherwise should have been, correct?
A. In relying upon the expertise of specialist consultants, I relied upon their qualification, knowledge and experience to advise on the matters that they were equipped to do so.
MILLER
Q. Indeed. And in the case of the corrosion expert, when you were given advice, you went and checked it and satisfied yourself that it was correct, as you tell us in paragraph 37?
A. I took the advice of the corrosion consultant with respect to the protection of the structural steel and that advice is extensively specified in the painting specification where Australian Standard 2312 is referenced, and that standard is extensive in its methodology for providing enhanced protection, as is recommended in AS 1562. And Dr Wallwork introduced the painting supply company and checked that that specification of the painting for protection of the steel was appropriate and correct.
Q. Sir, if we come bluntly to the point, you knew that with regard to the design of this roof for corrosion protection, you knew that your client relied upon you to ensure that it was appropriately documented for the setting, that is, the setting in which the house was going to sit?
A. Yes.
OBJECTION (ROBERTS)
QUESTION ALLOWED
HIS HONOUR: The answer may stand.
MILLER
Q. And because you were getting paid for that, you assumed responsibility for ensuring that the design incorporating the corrosion resistance factors built into the design was appropriate for the setting in which the house was going to be located?
A. I also relied upon the specialist consultant who was also employed by the client.
219To my mind, it is clear from this evidence that Mr Dalton agreed that:
(1) his client (I interpose, "Dymocks") relied on him to prepare a design that would minimise or avoid the risk of corrosion in the roof structure;
(2) accordingly, he took responsibility for gathering all the information together;
(3) he knew that his client relied on him to ensure that the house was appropriately designed for its location; and
(4) he assumed responsibility for ensuring that the design was appropriate in relation to corrosion taking into account its setting.
220There is no reason to think that the position of Dalton, as opposed to that of its principal Mr Dalton, would be any different. It is clear that Mr Dalton was the controlling mind and, in substance, alter ego of Dalton.
221Of course, in the last of the answers that I have set out, Mr Dalton referred to his reliance on another consultant. But that, it seems to me, was in addition to, and as part of his discharge of, the assumed responsibility for the design which was the subject of the question.
222Known reliance may of itself create vulnerability in the requisite sense. As Kiefel J said in Barclay at [174]:
Knowledge of an individual who is reliant, and therefore vulnerable, is a significant factor in establishing a duty of care, although vulnerability can arise other than by reliance.
223It seems to me that the view of the plurality in this case (French CJ, Gummow, Hayne, Crennan and Bell JJ) was not dissimilar: see their Honours' citation at [44], with apparent approval, of observations of the trial judge to the same effect.
224On the facts of this case, there was in my view:
(1) assumption of responsibility;
(2) known reliance; and
(3) the obvious proposition that breach of duty was likely to lead to economic loss.
225Finding that a duty of care was owed by Dalton to Dymocks would not raise any question of indeterminate liability to an indeterminate class of claimants. It would do no more than reinforce, by the imposition of legal responsibility, the duties which, in my view, Dalton plainly accepted that it undertook for Dymocks, and its obligation to perform those duties in a proper and professional way.
226Thus, I would conclude, were it necessary to do so, that the factors of assumption of responsibility and known reliance existed at the relevant time, so as to justify imposition of a common law duty of care (to avert economic loss) even in the absence of a contract of retainer.
Issue 6: breach of duty
The potential for corrosion
227It was common ground that the project was to be constructed in a salt laden marine environment where there was an obvious (and recognised) risk of corrosion and, thus, that particular care needed to be paid to protect the metal elements of the structures from corrosion. It was also common ground that the area was subject to the risk of extreme weather, and that the buildings, once constructed, must be able to withstand a category 1 cyclone.
228Mr Dalton was aware, and stressed to others involved in the project, that it was to be completed to a very high standard. For example, in writing to consulting engineers who were to be engaged, he said the following (letter of 17 December 1990 to Bird, Walch and Tierney, omitting formal parts):
I am writing to emphasize that the quality of materials and workmanship that is called for in the specification and drawings for the Dymocks Complex is "FIRST CLASS", and that anything less than this standard is to be rejected.
Would you ensure that your subconsultants or staff who carry out site or workshop inspections are aware of this requirement and knowledgeable with respect to the qualities necessary to achieve this standard.
The very strictest of interpretations of "FIRST CLASS" is to apply.
In addition, should you consider additional inspections are necessary to ensure this standard is meet by the Builder or their sub-contractors please advise in order that the Client's approval may be sought for the additional inspections.
229As I have observed already, the project cost was very substantial indeed.
230Although the evidence ranged somewhat more widely, the essential issues, in relation to breach of duty, focussed on corrosion. Mr Miller identified three relevant points in the structures:
(1) the point where each stainless steel fastening screw passed through the aluminium roof sheeting;
(2) the point where each coated mild steel saddle came into contact with the aluminium sheeting; and
(3) the point where each stainless steel screw penetrated into the underlying mild steel purlin.
231There was much evidence devoted to the potential for galvanic corrosion at each of those points. In addition, there was evidence directed to the inherent inadequacy of the saddles, both as specified and as supplied and installed. I hasten to say that, to the extent that what was supplied or installed was defective, then, bearing in mind that no case was asserted of failure to supervise, it cannot be to Dalton's account.
232Mr Roberts submitted that the particular complaint in relation to the stainless steel screw / mild steel purlin contact had not been properly pleaded or particularised. It is unnecessary to rule on that submission. It was clear that each of the corrosion experts had addressed that aspect of corrosion. Indeed, the questions that the parties agreed the corrosion experts should consider in their conclave referred specifically to the risk of corrosion where the screws penetrated the purlins.
Inadequacy of the saddles
233There was a sub-issue, or side issue, in relation to the saddles. The specification required that they be zincalume coated mild steel, dipped in PVF2 to achieve a coating (of PVF2) 25 microns thick. The corrosion experts considered that the saddles that were supplied were not fully coated in zincalume. That appeared to be, as Professor Young suggested, an inherent result of the manufacturing process. The saddles were punched out of sheets of mild steel. The mild steel sheets had been coated with zincalume on each side. But the process of punching the saddles out meant, necessarily, that the sides of the saddles would be uncoated by zincalume.
234That may be regarded as a defect in supply rather than something for which Dalton was liable. It meant, at most, that the saddles did not comply with the specification. I interpose to note that that this was not one of the instances of non-compliance relied on by Capral to suggest that its warranty had not come into effect. That may reflect an appreciation on Capral's part that this particular defect in the saddles did not result in any corrosion of, let alone perforation due to corrosion in, the aluminium sheeting on which the saddles rested.
235The experts did, however, agree that the saddle specification was inadequate in any event because its materials were inappropriate in the environment, and for other reasons (see T287 and following; I will not set out the relevant passages).
236The experts also agreed that the saddles were inadequately coated with PVF2. Further, I think, they agreed that it would not be possible to achieve the requisite coating by (as the specification said should be done) dipping the saddles in PVF2. The experts were doubtful that it would be possible to obtain PVF2 in liquid form for this purpose. But regardless of that, they said that this aspect of the specification could not work.
Suggested reliance on another expert
237I turn to what appeared to be Dalton's primary defence to the claim of breach of duty. That defence was, that Dalton took and relied upon the advice of a corrosion expert, Dr Wallwork; and that it was reasonable for Dalton to do so. As I understand it, that defence was put both in general terms (that is, as being a sufficient discharge of the duty of care); and, specifically, by reference to s 5O of the Civil Liability Act 2002 (NSW).
238Mr Dalton recommended the engagement of a structural engineer, Mr Davies. That was done. Mr Davies' involvement was required specifically (although not necessarily only) because the roof fixings needed to be sufficiently strong to withstand a category 1 cyclone.
239Mr Dalton said that he recommended to Mr Forsyth not only the engagement of Mr Davies but also the engagement of a corrosion expert, who turned out to be Dr Wallwork. Mr Forsyth did not specifically recall the conversations set out in Mr Dalton's statement. However, he did not deny that they may have occurred.
240The only evidence that Mr Dalton gave in his first statement of his dealings with Dr Wallwork is set out in paras 27- 28 and 32-35 of that statement. I set out those paragraphs:
27. Early during the design of the roof, I met with Greig Wallwork and Jack Davies. During that meeting I said to Mr Wallwork words to the following effect:
Me: "I have selected aluminium for the roof to achieve the curved roofs the client wants. Is it your judgment that this will resist the salt air corrosion?"
Greig Wallwork: "Yes, but it has to be painted with polyninyl di-flouride to a thickness of 25 microns on both sides."
28. In that same conversation or at another time I said to Messrs Wallwork and Davies words to the following effect:
"The only supplier of aluminium I think we should work with is Alcan, I think we should get Alcan and whoever they think should produce the roof sheeting in for a meeting with us to discuss the design and specification of the roof."
...
32. A further meeting took place at my office attended by myself, Messrs Wallwork and Davies and representatives of Alcan and Stramit. By this time it had been confirmed that Stramit could achieve the recommended thickness of polyninyl di-flouride on the underside of the sheets.
33. At the meeting a conversation to the following effect took place:
Jack Davies: "I recommended Buildex Taptite Austenitic 316 stainless steel screws for fixing the roof sheeting."
Me: "Will this hold the roof down in a Category 1 cyclone?"
Jack Davies: "Yes"
Me: "Greig, is that acceptable to you?"
Greig Wallwork: "That is consistent with the AS1562."
34. At that meeting there was a discussion about the saddle component of the roof fixing mechanism that provided the bearing pressure on the roof. In a cyclone the strength of the saddle was critical in holding the roof down. During this discussion I said words to the following effect:
I don't want a situation where a category 1 cyclone comes along, rips the roof sheeting off and it flies through the air and cuts someone in half.
35. During the discussion regarding the saddles Mr Wallwork said words to the following effect:
You will need to coat those saddles with the polyvinyl di-flouride paint and incorporate the EPDM washer to keep the rain out of the holes.
241In a second or supplementary statement dated 19 December 2012, Mr Dalton returned, in very vague terms, to this topic. He did so to supplement para 39 of this first statement, no doubt appreciating that it was likely to be the subject of objection and rejection (as in fact happened). To enable what follows to be understood, I will set out the rejected para 39; in doing so, I am not to be taken as giving it any evidentiary weight:
39. Part 8 of the Specification reflects the advice of Messrs Davies and Wallwork and the manufactures (both by their representatives and published product information) as set out above.
242In the supplementary statement, Mr Davies repeated (this time without objection) the offending paragraph. Although it was neither objected to nor rejected, it is not in form admissible and I give it no evidentiary weight. He then referred to structural and corrosion issues and said, in para 6:
6. Those matters are outside my expertise and are matters on which I would have to obtain and rely on specialist advice. That was the purpose in recommending to Forsyth that he retain those specialist consultants at the commencement of the design / development phase of the project. The specification of the roof sheeting fixing system reflects the specialist advice that I received from Davies and Wallwork. It is not something that I could have specified without it.
243The second and third sentences of that paragraph were objected to and rejected; again, I am not, by setting them out, to be taken as giving them any evidentiary weight.
244The supplementary statement then continued to narrate:
(1) what Mr Dalton said was his invariable practice of circulating draft specifications to the relevant experts for their consideration and input; and
(2) that he believed he did so in relation to the Grassy Head project.
245Taken at its highest, the admissible evidence of communications from Dr Wallwork would show that Dr Wallwork recommended that:
(1) the aluminium roof sheeting should be painted with PVF2 to a thickness of 25 microns on both sides;
(2) the suggested fixing screws would be "consistent with the AS1562"; and
(3) the saddles should be coated with PVF2 and there should be an EPDM washer to keep rainwater out of the drill holes.
246Leaving aside the evidence as to practice, there is nothing in Mr Dalton's evidence to suggest that Dr Wallwork was given any opportunity to consider the detail of the proposed fastening system. Further, the offhand comment attributed to Dr Wallwork - that the use of the Buildex fastener and aluminium sheeting "is consistent with" AS 1562 - says nothing about the contact between the stainless steel screws and the mild steel purlins. I interrupt to note that it was common ground that, at all material times, those two metals have been regarded as dissimilar metals, so that there is a risk, if they are brought into contact in the presence of an electrolyte, of galvanic corrosion.
247I do not accept this aspect of Mr Dalton's evidence. For the reasons indicated earlier (which I stress involve no criticism of Mr Dalton), it is uncorroborated. Thus, it has to be weighed, first according to my assessment of Mr Dalton as a witness and, secondly, by reference to the probabilities as they can be ascertained.
248As to the first point: I refer to what I have said at [37] above. As to the second point: the unanimous view of the corrosion experts is compelling.
249In the concurrent evidence session, the corrosion experts were asked about each of the points of connection to which I have referred. They were asked, also, about the connection between the aluminium roof sheeting where it rested on the mild steel purlins. Each of them, agreeing that he had been in practice in 1989 and for years before, said that he would not have specified the connections that were used, at least without taking steps to prevent corrosion. Mr Miller summarised the evidence given in a question which was directed to eliciting from the experts what might have been done to remove the risk of corrosion (T294.44-295.10):
MILLER: Thank you. Can I move to so I can understand then, to summarise where we've got to so far, each of you seems to be in agreement that the problems that you've described at the purlin mould steel connection ought to have been obvious to a corrosion person in 1989. Each of you has agreed that the corrosion, galvanic corrosion problem at the aluminium stainless steel thread, at least in the walkways, verandas, ought to have been apparent to a corrosion and obvious to a corrosion expert in 1989 and each of you has agreed to that same proposition with respect to the fasteners, the saddles which was the Zincalume saddles. What I want to understand working bottom up is if in 1989 if you had been asked how might you have minimised or avoided galvanic corrosion or corrosion at each of those points, what would the answer be if any? Starting with the purlin and the mild steel, the stainless steel mild steel on the purlin, is there anything that could have been done in the construction/design to have removed oxygen, removed moisture from that intersection for us to arrive at or eliminate or reduce the extent of corrosion that is now there. Mr Salome?
250Although the statement as to what had been agreed came from Mr Miller, it reflected fairly the many preceding pages of discussion. None of the experts disagreed with it. I am quite sure that, if any of them had disagreed with what was attributed to him by Mr Miller, he would have said so. None of them struck me as being at all backward in seeking to correct any attribution to him of an incorrect view.
251The point of this is not, of course, that Mr Dalton, as an architect and not a corrosion expert, should have been aware of the problems. It is that if (as Mr Dalton said was the case) Dr Wallwork was in 1989 an expert in the field of corrosion of metals, one would have expected him to have had the same understanding as the experts professed, in the manner summarised by Mr Miller. However, if this aspect of Mr Dalton's evidence is to be accepted, Dr Wallwork must have had a view that was fundamentally inconsistent with the unanimous view of the experts.
252Taking into account the unanimous expert evidence on the point, and assuming (in favour of Dalton) that in 1989 Dr Wallwork was qualified and experienced in the area of metal corrosion, the probabilities, viewed objectively, are that he would not have signed off on, or approved, or let go without comment, a draft specification that contained the three potential risks for corrosion to which I have referred.
253In relation to the assumption as to Dr Wallwork's qualifications and experience in 1989: they have not been proved in detail, nor admitted. The highest the evidence goes is an assertion in Mr Dalton's statement that he said to Mr Forsyth that Unisearch (an arm of the University of New South Wales) had "recommended Mr [sic] Greig Wallwork as a corrosion consultant. His CV and work performance seem satisfactory".
254Dr Wallwork was retained to give some advice in about 2006, when corrosion in the roof was discovered. I would infer that this was because he was then perceived to have the appropriate qualifications and experience. Further, Mr Dalton's evidence, that he had consulted Unisearch and been given Dr Wallwork's name, was not challenged.
255Reality suggests that I should conclude that Dr Wallwork was indeed an appropriately qualified expert in the field of metal corrosion, and that Mr Dalton was entitled to regard him as such.
256The difficulty, as I have said, is that making the assumption as to Dr Wallwork's qualifications and experience, the actions (or more accurately inactions) attributed to him through Mr Dalton's evidence are inherently improbable. Even if (as, according to Mr Dalton, Dr Wallwork said) the use of stainless steel screws was "consistent with" AS1562, nothing in that Standard could justify the contact between stainless steel and mild steel where the fastening screws penetrated the purlins. And, on the unanimous view of the corrosion experts, nothing could have justified the selection of mild steel zincalume coated saddles as an appropriate element of the fastening system.
257In relation to the involvement of Dr Wallwork, he was consulted (as I have noted) in 2006, after corrosion had become manifest. Dr Wallwork wrote to Mr Andrew Forsyth. He attached answers to a number of questions. Although the questions are not set out, one of the answers given by Dr Wallwork is significant:
3. It is necessary to establish who selected this method of fixation, i.e., whether it was the architect or Stramit.
258The obvious inference from this is that, at least in 2006, Dr Wallwork did not consider that he had had any role in choosing the system whereby the roof sheeting was attached to the underlying purlins. Unless that comment was completely disingenuous (and, Dr Wallwork not having been called for the reasons given, I could not find that it is), is inconsistent with this aspect of Mr Dalton's evidence.
259I do not accept Mr Dalton's evidence that he relied on advice obtained from Dr Wallwork in documenting the specification for roof fastening in the way that was done. Thus, I do not accept Dalton's defences based on reasonable reliance on an independent and qualified expert.
Reliance on Standards?
260Mr Dalton sought to justify his design by reference to the then applicable Australian Standard, AS1562-1980. The subject of that Standard was the design and installation of metal roofing. Its scope, set out in cl 1.1, was as follows:
This standard relates to the design and installation of self-supporting metal roofing having no transverse joints.
261It was common ground that this described the roofs and the covers to the walkways and verandas.
262Clause 3.8 dealt with protection against corrosion. It said among other things that:
Roof systems shall be designed so that direct contact between two or more incompatible metals or alloys does not occur.
263Table 3.2 set out "metals and alloys between which direct contact is acceptable as good practice". The notes to this section of the Standard made it clear that the table was "a general guide to acceptable combinations of metals in the light of current knowledge".
264Another note stated:
The life of vulnerable materials in severe marine atmospheres and industrial areas with atmospheres contaminated by acid-bearing agents can be extended by the use of special painting procedures (see AS2312).
265Table 3.2 had some 3 columns. The first column set out kinds of sheeting materials. The second and third columns set out "material with which direct contact is permissible". That was divided into "industrial and salt laden marine atmospheres" and "urban, suburban and rural atmospheres". It was common ground that the former classification was appropriate in this case.
266On that basis, Table 3.2 indicated that direct contact was permissible between aluminium or aluminium or aluminium alloy sheeting material and, among other things, stainless steel. It did not approve of direct contact between stainless steel and mild steel.
267AS2312 - 1984 dealt with the protection of iron and steel against exterior atmospheric corrosion. The statement of its scope sets out what the Standard seeks to achieve:
This standard provides guidelines on coating systems for the protection of iron and steel against exterior atmospheric corrosion.
268Clause 2.2 dealt with atmospheric classifications applicable to steel. The "very severe" classification includes coastal/marine areas that are "subject to 'marine' coastal fallout (salt deposition)". It was I think accepted that the Grass Head environment could be so described.
269Section 4 of the Standard dealt with planning and designing for corrosion protection. It included Table 4.1, whose subject was "galvanic reaction to steel". That Table indicated, among other things, that aluminium was anodic to steel and thus that it would protect steel. This meant, as everyone agreed and as I think Mr Dalton understood, that where aluminium and steel come into contact in the presence of an electrolyte, the aluminium would "sacrifice itself" to protect the steel: that is to say, the aluminium would corrode but the steel would not.
270Clause 4.3.3.4 contained the following information:
Stainless steel. Stainless steels as a class offers great resistance to corrosion.
... The behaviour of stainless steel is much the same as other metals in regard to galvanic corrosion. For example, aluminium, cadmium, iron and steel tend to protect stainless steel, and corrosion, if any, will take place on those metals..."
271Again, it must have been appreciated that cl 4.3.3.4 indicated that where aluminium and stainless steel came into contact in the presence of an electrolyte, the aluminium would corrode.
272The Standards, and other literature to which I will turn in a moment, are important. It was Mr Dalton's evidence was that he did not simply rely without checking on the advice that he claimed was given to him by Dr Wallwork.
273In his first statement, Mr Dalton said at para 37 that it was his practice to keep relevant Australian Standards in his office, and to check them if a specialist consultant referred to them. In cross-examination, Mr Dalton accepted that he did so. Further, he agreed, he consulted another industry reference known as "The Referee", produced by the Coated Products Division of BHP Steel. By reference to the former name of that division, the publication was frequently referred to as "Lysaght's." Mr Dalton accepted that The Referee did not accept as permissible the combination of aluminium and stainless steel, but said that he took the view that AS1562 should prevail (T137.29-.50):
Q. And if you were going to specify anything utilising Lysaght's product, do I take it that good practice meant that you went to that document to ensure that specification was appropriate?
A. I went to that document, amongst many documents including those that are listed here.
Q. Does that mean then in 1989 you turned your attention to whether aluminium and stainless steel was permissible as a combination under the Lysaght's Referee 1988 document; yes or no?
A. Yes, I did.
Q. And you would agree that it does not countenance it as being an acceptable metal on metal contact?
A. But it is merely an industry reference and you do do not take industry references above Australian Standards.
Q. That is how you approached the design in this case, did you?
A. That is correct.
Q. So notwithstanding it was a document from the product manufacturer, it was one that was dropped down in the order of hierarchy?
A. Correct.
274Further, Mr Dalton agreed, he had considered AS2312. He was asked whether he recognised that it disapproved contact between aluminium and stainless steel. His evidence on this point could best be described as evasive (T190.40-191.7, 191.30-192.9):
Q. Sir, yesterday you told me that in 1989 as part of your checking process leading to the documentation of the specification, you had regard to the Lysaght's 1988 document, do you remember that?
A. Yes.
Q. And you told me that you specifically turned it up to ascertain whether stainless steel and aluminium as a connection was acceptable under that document, do you remember saying that to me?
A. Yes.
Q. And the position was, was it not, that you did not at the time in 1989 identify it to so be consistent but you deferred to the Standard?
A. I deferred to the Standard.
Q. Similarly, is the position that in 1989, you turned up Australian Standard 2312 as part of your checking exercise for the purposes of preparing the roof specification?
A. Yes.
...
Q. You understood in 1989 when you turned up Australian Standard 2312 that in the design section of it, it contained information which would suggest that aluminium in contact with stainless steel was contact of dissimilar metals that was not good building practice, correct?
A. I also referred to the advice in the Standard that protective coating would provide protection. I discussed that with Greig Wallwork and he recommended a whole painting system to achieve that purpose.
Q. Well, breaking that down into bits. As at 1989, you understood that Australian Standard 2312 did not regard as good building practice the aluminium/stainless steel connection, correct?
OBJECTION (ROBERTS). QUESTION ALLOWED
A. I understood that the Australian Standard 2312 was for the purpose of protecting protecting various metals with particular coatings. And that that was in fact done on advice from Dr Wallwork. The the the primary reference in terms of fixing of the roof was the previous Standard, 1526.
Q. Sir, you can take it from me that I accept what you say that your primary reference was 1562. What I am putting to you is that you were additionally aware from your reference to Standard 2312 that it contained information in the design section of that Standard that recommended against aluminium and stainless steel coming into contact?
A. Yes.
Q. And it recommended that because it identified in a table that those two metals were dissimilar metals with a risk of galvanic corrosion, correct?
A. That is correct, and the Standard then goes on to advise on many methods for protecting.
275Mr Dalton was then asked whether he accepted that, on the basis of the three sources that he had said he had consulted, there was a conflict, and he agreed (T193.4-.8):
Q. Well, on the basis of that, I want you to assume that it is 1988. If that assumption is right, by the time that you came to draw together the design, you had conflicting information about the appropriateness of that connection as good building practice, correct?
A. Correct.
276However, he said, he "referred those issues to Dr Wallwork" (T193.12).
277At this point, I note that there is nothing in Mr Dalton's statements to suggest that he had considered both Standards and The Referee, and had recognised a conflict. Nor is there anything in those statements to suggest that, having recognised a conflict, he consulted Dr Wallwork about it. Mr Miller accused Mr Dalton of making up this answer. Mr Dalton denied the suggestion. But I do not accept his evidence that he consulted Dr Wallwork on the conflict. Nor do I accept Mr Dalton's explanation (T193.31-.32) that his "memory of conversations has been evolving as a consequence of the presentation of information to" him.
278Ultimately, Mr Dalton suggested that this evidence (in relation to the conflict and Dr Wallwork) was covered by the proposition in his supplementary statement at para 6, that the specification of the roof sheeting reflected the specialist advice he had received from, among others, Dr Wallwork.
279He then gave the following evidence (T193.43-.46):
Q. And from that we are meant to understand that you had yet another conversation, are we, about conflicting standards between 2312, 1562 and the Lysaght's referee, is that your evidence?
A. Yes.
280The architectural experts (Mr Sarlos and Mr Bullen) agreed on a number of matters. As to the contact between stainless steel and aluminium, they agreed that:
(1) AS1562 would permit it;
(2) AS2312 would not permit it;
(3) The Referee would not permit it;
(4) another industry publication current at the time and available to and consulted by architects at the time was equivocal on the topic; and
(5) yet another industry publication of the same kind would permit it.
281Thus, there were two publications, commonly consulted by architects at the time, which would permit the connection (one of which was an Australian Standard), two which would not (one of which was an Australian Standard), and one which was equivocal.
282The architects also agreed that there was a conflict in the publications as to contact between the saddles and the aluminium sheeting. No one suggested that there was any publication that sanctioned contact between the stainless screws and the mild steel purlins.
283As I have said, Mr Dalton's evidence that he was aware of the conflict, at least in relation in relation to contact between aluminium and stainless steel. I do not think that Mr Dalton referred to any publication in relation to contact between the saddles and the aluminium sheeting, nor to contact between the stainless screws and the mild steel purlins.
284As to contact between the stainless steel screws and the mild steel purlins, Mr Bullen, who was called as an expert for Dalton, gave the following evidence (T448.47-449.22):
Q. You agree that in 1989 a reasonable competent architect would have appreciated in a seaside setting such as the present that mild steel being pierced by stainless steel would give rise to one such point of risk?
A. Yes.
Q. And you would agree, would you not, that in those circumstances, if the architect had accepted as part of their scope of work a requirement to document up a specification for the roof that minimised the possibility of corrosion, they ought to have turned their attention to this particular interface at the purlin, correct?
A. To the extent that they were relying on their own officers and not relying on the officers of others.
Q. And if they went and sought advice from others, which I take it to be some other person who was skilled in matters of corrosion, because of the setting of the building and the number of contact points of this kind, you would agree, wouldn't you, that a reasonable architect in that situation would have required a sensible explanation as to why that sort of connection was acceptable?
A. It would be part of a normal inquiry, yes.
Q. A reasonable architect wouldn't simply defer to what appeared to be, you would agree, an inappropriate point of contact and accept it without questioning if there was no sensible explanation provided, do you agree?
A. I think an architect would question why the corrosion consultant had advised on certain aspects and upon receipt of a reasonable answer would adopt the advice.
285AS1562 did not sanction contact between those two metals. AS2312 indicated that it was unacceptable. Mr Dalton said that he read the Standards in question. He must have appreciated that the contact was apparently impermissible. Even accepting his evidence at face value (and for the reasons I have given I do not, in all respects), he made no inquiry. Even accepting (and again, I do not) that Mr Dalton had referred the draft specification to Dr Wallwork and Dr Wallwork had returned it without question, Mr Dalton made no inquiry.
286The point is made by the following further evidence given by Mr Bullen (T449.39-450.10):
Q. If the architect had not sought advice specifically about that contact point, you would not then regard that as being an acceptable connection detail in 1989?
A. I agree.
Q. And it must then follow that unless the architect sought and received some cogent, reasoned explanation for that design interface remaining, then to simply accept any answer without that sort of reasoning would be irrational?
A. I don't agree with that.
Q. Do you say that in 1989 it was acceptable for an architect, appreciating there to be a risk in terms of corrosion in the design, could go to another party and accept without explanation an indication that the design was appropriate?
A. I think there's a matter of degree. I think the architect has certain knowledge and skills about corrosion, galvanic and atmospheric, and is capable of asking questions to a point. After that, the architect in a normal practice would take the advice given unless they have got something obviously contrary.
Q. That was my next point. This was an obvious point of corrosion failure, of likely corrosion failure, wasn't it?
A. I've agreed.
287Mr Bullen agreed, further, that contact between the stainless steel screws and the aluminium sheeting was the subject of conflict in the relevant publications. He agreed, further, that the conflict could have been avoided by a design which prevented contact (for example, by interposing a grommet between the screw and the sheeting). Another way to deal with the conflict was to make inquiries of an expert (T450.16-451.7):
Q. Can I turn to the aluminium sheeting and the stainless steel screw point of connection. You and Mr Sarlos have agreed that in 1989 that was a matter of some conflict in the standards publications?
A. Yes.
Q. That conflict could be addressed in two ways I want to suggest to you and see if you agree. First, the conflict could have been avoided by a design that prevented that dissimilar metal contact, correct?
A. Yes.
Q. And one such obvious means of doing so would have been a design that included a grommet or a sleeve around the shank of the screw at the point at which the screw passed by the aluminium sheet?
A. I don't think that was can you just put the question to me again because I think I might have missed the thrust of it.
Q. The obvious way of overcoming that point of contact would have been to put a grommet in place over the screw?
A. At the time isolating the stainless steel from the aluminium might reasonably have been considered not an issue by the consultant team.
Q. My question came from the premise that the two of you, Mr Sarlos and yourself, have agreed there was a conflict.
A. Yes.
Q. I said the first of the ways to avoid that conflict would have been to design the connection up in a way that you didn't have dissimilar metal contact?
A. I can't disagree with that. I agree with that.
Q. Do you agree an obvious way to do it in 1989 would have been to put a grommet around the screw?
A. Yes, you could have put a grommet around the screw.
Q. The other way in which the architect could have resolved that issue would have been to seek some sort of rational and reasoned explanation from another consultant more skilled in that particular area, would you agree?
A. I think the architect would have taken those steps, by my assumptions.
Q. You have been told to assume and your report proceeds on the assumption that he in fact made inquiries?
A. That there was a corrosion consultant available through which these issues the architect took advice on.
288It is implicit in Mr Bullen's answers that inquiries should have been made. For the reasons that I have given, I am not satisfied that any inquiry was made.
289Mr Bullen was then asked whether, if an architect had checked the relevant documents and discovered a conflict, he would seek a reasoned explanation from the corrosion expert as to why (in the face of that conflict) the design would be suitable, and would require a rational or reasoned answer from the expert (T452.3-.37):
Q. You would agree, wouldn't you, that if at that point, having checked whatever it is that might have been ticked off by the corrosion consultant, a reasonable architect in that position perceived yet a, or still a further conflict, it would have required a reasonable architect in that position to seek a reasoned explanation as to why the connection would be suitable, in the setting, would you agree?
A. I think before that an architect would decide what the issue was. In fact, which of the documents, of which there were a number one says you can, one says you can't a number say you can and some seem confused in themselves. So the first thing I think a reasonable, competent architect would do would be to seek some clarification of precisely what the issue is and they would, if they doubted the corrosion or thought that they would get a second opinion, other than that of the corrosion consultant, they might refer reasonably to the industry, which is the roofing supplier in this case.
Q. I just want you to focus on the assumption. I just want to deal with this as quickly and directly as I can. I want you to assume that after the corrosion consultant had given advice
A. Yeah.
Q. the architect does his own exercise of checking and confirmation and forms the opinion himself that, despite that advice, there is still a conflict in the standards and the publications?
A. Mmhmm.
Q. You would agree, wouldn't you in those circumstances, that the obligation on the reasonable architect in that situation, would not just be to go back and get a tick, but to get a reasoned explanation as to why that design would be suitable in the setting?
A. Yes.
Q. And if there was an answer that came back that was not reasoned or rational, it would be incumbent upon the architect to take a further step before specifying that work in the specification?
A. Yes.
290Further, and in this context, Mr Bullen agreed that contact between the stainless steel screw and the mild steel of the saddle (which would be exposed because of the hole drilled or cut through the saddle to take the screw) would be unacceptable (T455.4-.19):
Q. You know what I'm talking about?
A. You are talking about the size of the hole in the saddle and the stainless steel screw going through it, with the mild steel contact between stainless steel and mild steel, where the hole is?
Q. Yes.
A. I understand.
Q. Yet another point of unacceptable dissimilar metal contact under 1562?
A. If the two came into contact, it would be unacceptable.
Q. Well, they are inevitably going to, aren't they?
A. I don't know that that is true. There are two rubber washers, one on top of the screw fitting where it comes down onto the saddle, and one under the saddle and I would imagine that the rubber washer, not always, sometimes keeps them apart.
291I accept all of that evidence of Mr Bullen. It follows, in my view, that Dalton breached the duties that I have found it owed to Dymocks. Mr Dalton was aware of the risk of corrosion in the salt laden marine environment. He was aware, in relation to the use of stainless steel screws and aluminium roof sheeting, that there was a conflict in the publications on the topic as to whether or not this was permissible. Even if (and I repeat, contrary to my finding) he did consult Dr Wallwork, he gave no evidence whatsoever of any rational or reasoned explanation as to why the connection would be permissible.
292As to the contact between the stainless screw and the mild steel purlin, and the contact between the stainless screw and the mild steel saddle, Mr Dalton gave no evidence at all. As to each: it would have needed a very powerful explanation indeed to overcome the fact that none of the publications permitted, and those that dealt with the subject warned against, that form of metallic contact.
293The result was that Dalton designed and specified a roofing system that was inherently susceptible to corrosion and failure. It was inherently likely that galvanic corrosion would occur where the dissimilar metals (stainless steel and aluminium, and stainless steel and mild steel) came into contact. It was inherently likely that the saddles would fail. The saddles were an essential part of the design, because they were intended to provide a sufficient restraining force to resist category 1 cyclones.
294The problems could have been minimised, or perhaps entirely averted, if contact between dissimilar metals had been prevented (for example, by the use of a grommet or some such other device) or if moisture could have been excluded at the point of contact. As I have said, galvanic corrosion cannot occur in the absence of moisture. It appeared to be a general consensus that sealants could have been applied, at the points of contact, to keep water out, although I think there was some concern as to the practical execution of this technique.
295Clause 9.7 of the specification, which was in the section dealing with metalwork, was directed to preventing the contact of dissimilar metals. It recommended the application of a mastic. Mr Bullen agreed that this would not prevent dissimilar metal contact, but that it might have been of help in minimising the access of moisture to the point of contact (T447.9-.22; I will not set out that passage).
296Regardless, Mr Bullen thought "it would have assisted" to have had this repeated in cl 8.10 of the specification, dealing with dissimilar metal contact in the roofing section of the specification. As Mr Bullen agreed, it did tell the builder what needed to be done, but did so in a different part of the specification (T447.35-.37; again, I will not set out this passage).
Conclusion on breach of duty
297I am satisfied, on the whole of the evidence, that Dalton breached its duties of care, in relation to its design and specification of the roof fixing system. And I am not satisfied that anything that Mr Dalton did in this context was authorised or sanctioned by Dr Wallwork.