Henry Michael Lyons & Ors v Jandon Constructions

Henry Michael Lyons & Ors v Jandon Constructions - [1998] WASC 224 - WASC 1998 case summary — Zoe

[51]

The extent of the cracking is such that I do not attempt in this judgment to give a narrative description of each crack. I am satisfied that exhibit 2(a), prepared by the plaintiffs and headed "Schedule and Chronology of Damage to House at 1 Gray Road, Gooseberry Hill", is more or less up-to-date and complete. The schedule was completed in March 1998. Mr Lyons gave evidence, which I accept, that since it was completed the plaintiffs have noticed even more cracks. The schedule lists as many as 127 internal and 20 external cracks, although some of these may be extensions or different aspects of the same crack. Photographic evidence of some of these cracks has been produced and, as I have said, there is also video evidence. The cracks are vertical and horizontal. They do not merely follow mortar joints but also travel through bricks. They reveal displacement (changes in plane) in walls, and wall tilting. The cracks are distributed throughout the house at high and low levels. Whilst many of the cracks are narrow, many are bad. That is, many are both wide and long. There are cracks at junctions of walls and at junctions of walls and ceilings, at joins above door and window frames and horizontally across wall sections. The high level horizontal cracks indicate roof movement. Whilst speaking generally, it would be fair to say that most of the worst damage is to the north-west section of the building, no area seems to have escaped entirely. The area of least cracking is to the north-east, but even in that section there is some cracking. As appears from exhibit 2(a), there is extensive cornice cracking in both the bedrooms 3 and 4, as well as vertical and horizontal wall cracking. These bedrooms are at the north-east corner. The main bedroom is at the south-east. It has cracking at the junction of the ceiling and walls (cornice cracking) as well as wall cracking from the corners of the bedroom window to the ceiling. One of these cracks - from the left top window corner to the cornice - is shown in the photographs 4 and 4A at folio 272 of exhibit 1 and in photograph 4 of exhibit 3.

[70]

I would also uphold the plaintiffs' claim that there was an implied warranty of fitness under s40(2) of the Fair Trading Act. The plaintiffs were plainly consumers for the purposes of the subsection and the building services were plainly supplied in the course of the first defendant's business. The first defendant is not a "qualified architect or engineer" and did not provide services in that capacity. Hence, such design services as the first defendant did supply are not within the first exception contained in the subsection. It is, I think, beside the point that the first defendant engaged an engineer to produce the design. On a true analysis, it was the first defendant who provided the design to the plaintiffs. So far as appears, the first defendant did so, or purported to do so, as an extra to the works agreed on in the contract. As has been recounted, the first defendant charged for the new footings design as a variation to the building contract. There is no question that the first defendant knew the purpose for which the services were required, which was the construction of a domestic residence. Therefore, there was, by force of the subsection, an implied warranty that the services, that is, the building services incorporating the design services, would be reasonably fit for that purpose. I find that the circumstances do not show that the plaintiffs did not rely on the first defendant's skill and judgment as regards the house foundations. This point may have been arguable if the first defendant had simply constructed the footings designed by Mr Beimel. That is not what happened, as I have already said. Upon that design being, in effect, rejected by the local authority, the first defendant provided an alternative design without reference to Mr Beimel or to the plaintiffs. There is nothing wrong with that, but the first defendant cannot say the plaintiffs did not rely on the first defendant's skill and judgment in the provision of so much of the building services as incorporated that design, nor can the first defendant say that it was unreasonable for them to do so.

[73]

It was not disputed, and therefore can be accepted for the purposes of this judgment, that the first defendant did owe concurrent tortious and contractual duties to the plaintiffs. It is, of course, settled law that persons in a contractual relationship may owe tortious duties to each other: Donoghue v Stevenson [1932] AC 562 per Lord Macmillan at 610; Voli v Inglewood Shire Council[1963] HCA 15; (1963) 110 CLR 74, per Windeyer J at 84; Hawkins v Clayton (1988) 164 CLR 539, especially per Deane J at 575; Bryan v Maloney (supra) at 617-620; Esso Petroleum Co Ltd v Mardon [1976] EWCA Civ 4; [1976] QB 801 per Lord Denning at 818-820. The questions are: what was the content of the tortious duty and was there a breach of that duty? I am not persuaded that the content of the builder's duty in relation to the footings is as pleaded in the statement of claim, which really seeks to attribute to the builder all of the professional knowledge, skill and responsibilities of an engineer. For reasons which I have tried to state above, I am satisfied that there was a want of reasonable care on the part of the engineers (the second and third defendants) who designed these footings, but that conclusion is based on evidence as to what would be known to reasonably competent and informed structural engineers in early 1989 concerning the possibility of the presence at this site of adverse geophysical conditions, and evidence as to what a reasonably prudent and skilful engineer would do to investigate the site, and design for the expansive clay bands that would have been discovered on the site. I have no such evidence concerning builders. The Court must guard against the danger of concluding from the fact that the footings were wrong for this site, that there was a failure by the builder to take proper precautions. I have no evidence at all of what a competent and careful builder ought to have known or ought to have done in the particular circumstances of this case. In fact, the first defendant engaged professional engineers to design the footings and the design was approved by the local authority. So far as is known, the first defendant faithfully implemented that design. There is no evidence on which I am prepared to conclude that the first defendant was negligent in failing to do more. It is not a case like Batty v Metropolitan Property Realisation Ltd [1978] 1 AB 554, where the land had been acquired by a property developer and a decision taken between the property developer and the builder to build on the land in circumstances in which there were signs on surrounding land that ought to have put them on inquiry as to its suitability as a building site. In this case, the plaintiffs had chosen the block and engaged other consultants to design the house. There is no evidence that the first defendant gave the engineers wrong or inadequate instruction or anything of that kind. There is no evidence on which I am persuaded to find that a prudent builder would have taken steps independently of the structural engineer to investigate the site or to see that the design was adequate; or on which to base a conclusion that the first defendant ought to have appreciated that this design was inadequate. There is no evidence that the first defendant had special information about the site or knew that the second defendant had taken no or inadequate steps to investigate the site. It is not as if there is evidence that there were signs that would have alerted a prudent and reasonably competent builder to the possibility that the site was unsuitable for this type of construction, or that that fact was generally known to builders or was actually known to the first defendant. I do not uphold the plaintiffs' claim against the first defendant insofar as it is based on tort liability.

[82]

Mr Van der Meer thought an east-west cut-off drain should be installed south of the house across the driveway and past the west of the house, that an impervious membrane should be placed under the soil between the drain and the house and that the area should be paved. This would divert surface water from rainfall into the drain and should allow the moisture content of the soil beneath the house to reach an equilibrium within 18 months or two years. I do not think Mr Van der Meer was very confident that the cut-off drain would actually work. This is not really surprising. As I have noted, there has always been a cut-off drain along the eastern side of the house and it does not seem to have been very effective. In the light of the recorded damage to the sections of the structure that might be expected to have been protected from damage by that drain, it is not possible to be at all confident that it has worked. I would have thought that if that drain was effective as a stabilising measure, it should at least have allowed the north-east section to stabilise and therefore to cease moving long since. If I have correctly understood how cut-off drains are supposed to function, one would not expect new cracks still to be appearing in sections of the house immediately down hill from the existing cut-off drain, that is, in the vicinity of bedrooms three and four in this house; or for that matter in the vicinity of the bathroom or laundry. Nor would one expect old cracks in this area to be still deteriorating. Yet it is apparent from exhibit 2(a) that this has happened. Mr Gordon doubted that this north-south cut-off drain along the eastern edge of the house was working and I think it is evident from the history and location of damage that his doubts are well-founded. Why it is not working (if it is not) was not established and Mr Gordon's opinion on that question was not invited. It was put to Mr Lyons in cross-examination that he had damaged the pipe in the drain, or blocked it, by driving a star picket through it. Mr Lyons denied any knowledge of having done so. He was cross-examined on the basis that there would be affirmative expert evidence led on behalf of the defendants that the cut-off drain had been damaged or blocked in that manner, the purpose of this cross-examination no doubt being to lay the ground for an inference that the reason the drain was not effective was that the plaintiffs had prevented it from working. Implicit in this, of course, is the proposition that the drain is indeed not working as a stabilising factor. Mr Lyons remained firm in his evidence that he had no knowledge that any damage had been done to the drain, and denied that he had taken part in any investigation about damage to or blockage of the drain. In the end, the defendants did not lead any evidence on the subject.

[84]

Getting back to Mr Van der Meer's evidence, he did not consider any rectification work should be attempted until it was demonstrated that the installation of his recommended cut-off drain along the southern edge of the building had in fact stabilised the soil in that area, that is, the southern aspect and south-east corner of the site (t/s 323). I do not understand Mr Van der Meer's evidence to be that this delay in the commencement of rectification work was merely to allow the soil time to stabilise. He seemed to me to be trying to say that he would want to be satisfied that the cut-off drain was in fact working as a stabilising technique. I think his evidence is to be understood as being to the effect that there was a real risk (not just a fanciful risk) that the drain may not be effective or wholly effective. I think this is made clear in Mr Van der Meer's evidence to the effect that he simply did not know whether the stabilisation method above described would prevent further cracking (t/s 323). Furthermore, I understand his evidence to be that even if it should appear after 18 months or two years' observations that the soil had stabilised, it would be prudent nonetheless in the rectification work to introduce into the masonry walls both jointing and steel reinforcement. Mr Van der Meer prepared a plan showing the jointing and steel reinforcing which he thought was necessary to protect the fabric of the house even after the cut-off drain had been installed and enough time had passed to allow it to achieve its maximum effect. This is exhibit 16. It involves dividing the house into several structurally independent segments which might move relatively to each other. This could be achieved by, in effect, disconnecting the superstructure at certain points (I think seven in all) by inserting vertical gaps in the masonry, the idea being that at the gaps there could be free movement between one segment and the other. The gaps would be filled with a flexible sealant. At strategic locations full height steel columns would be inserted to prevent movement parallel to the joint, whilst allowing movement perpendicular to the joint. The joints would be visible and, depending on exact design detail, the steel columns or parts of them may also be visible. This would be so if the columns could not all be completely located in cavity walls. The object of these construction techniques is, broadly speaking, to form a series of joints and restraints so that the anticipated vertical movement in the structure by reason of the defective foundation can be both limited and controlled to happen at certain places specially prepared to cope with vertical movement.

[86]

Both Mr Glick and Mr Van der Meer were pressed under cross-examination to agree that all the wall cracks could be repaired, either by raking out and replacing mortar joints or, where necessary, by breaking out and replacing sections of brickwork. Whilst this may be so, that form of remediation would not correct the lean or tilt in those walls that do now tilt. There are at least two which do, they being the wall between the family room and the laundry and the long north-south passage wall. Nor do I understand how it could relieve the stresses under which the uncracked sections of the structure may now be placed. As I understand the evidence, cracking occurs only when the forces created by movement exceed the tensile strength of the masonry. I do not understand this to mean that uncracked areas of this house are not under movement stress or that the cracking which has occurred has relieved all the stress. That there is no cracking at a certain place may mean no more than that at that place the forces created by movement in the foundations are presently less at those locations than the tensile strength of the masonry. It would seem to follow from this that uncracked areas may now be vulnerable to the slightest further movement. Take the case of the external leaf. It is not suggested the external leaf has not been placed under stress. Yet the external leaf has not cracked to nearly the same extent as the internal walls. I accept Mr Glick's explanation for this, which is that for a number of reasons the external leaf is more flexible than the internal walls. It seems to me to be implicit in this evidence, and anyway obvious from the difference in levels between sections of the house, that the external leaf is flexed. The question of how much flexion is left and what degree of further movement might be sufficient to cause the external leaf to begin to fail and how extensive that failure might be once it started was not gone into in evidence and I will resist the temptation to speculate. Suffice it to say that the fact that it is possible to repair the cracks that have appeared so far is, on the evidence, by no means decisive of the question whether demolition and reconstruction is unreasonable.

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Judgment (99 paragraphs)

Henry Michael Lyons & Ors v Jandon Constructions (A Firm) & Ors [1998] WASC 224 (20 July 1998)

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Legislation Cited (1)

Cases Cited (16)