I think weight should be given to Mr Peck's evidence as that of a highly experienced engineer, notwithstanding his limited experience in relation to the subject matter of that cross-examination.
475 Mr Walker gave evidence to like effect in cross-examination which distinguished the data concerning loads from concepts of differential pressure, as appears from the following cross-examination by counsel for EMAE:
Q. Would you agree with me that, having regard to the knowledge of my hypothetical engineer, having regard to the information that is on the sheets that I showed you, having regard to the fact that heat exchangers conventionally operated in every part simultaneously, having regard to the fact that heat exchangers are usually fully charged, and having regard to the fact that at least one fire suppression system involves water pipes being fully charged, that a reasonable heat exchanger designer with the material I've taken you to would be likely to form the view that the heat exchanger would be constantly charged and only one load released from the constant charge at a time.
A. In other words, there's sufficient gas available to keep the flow rate pressure up the same on each side of the baffles --
Q. Yes.
A. -- with one load off.
Q. Yes.
A. In that case, yes.
Q. I want to suggest to you that, for the reasons I've put to you, a mechanical designer would conclude that that was how this heat exchanger would operate.
A. He could have, yes.
Q. And that would be a reasonable conclusion?
A. A reasonable one, yes.
Q. And that would be a conclusion that the heat exchanger would be charged at all times.
A. Yes.
Q. Even although one load might operate separately from the other.
A. Yes.
Q. And if you had the heat exchanger fully charged and, let's say, an alarm went off in zone 2 and zone 2 operated, on the assumption that there was gas coming in at the same pressure for the gas going out, there would be no problem with differential differences in pressure in the system, would there?
A. It would be negligible because the flow rate would be the only difference.
Q. In other words, you would describe the pressure differential as a variation?
A. Yes.
(T3511:56 - T3512:52)
476 Mr Ambrose was a self employed pressure equipment engineer who was called to give evidence in WorkCover's case. He held a degree in Mechanical Engineering from the University of Melbourne. Since 1950 his work involved quite extensive experience in connection with the design, manufacture and testing of pressure vessels. I found him to be an experienced and what I would describe as an old style engineer, whose evidence was given spontaneously with no prevarication and in a direct way which reflected the mind of a very practical engineer with a good grasp of his subject and quite conscientious in his application to any particular task. He freely made concessions.
477 The evidence of Mr Ambrose, I think, during cross-examination by counsel for Optus, reflected the artificiality of an approach which sought to extract mechanical design implications from the thermal data to be found in the Lummus sheets. Although not the most illuminating passage of evidence, I think it does reflect the artificiality inherent in Tyco's approach to this subject matter, as follows:
Q. I think you gave an opinion as to "varies"?
A. That's right. I said "varies".
Q. You said perhaps the obvious, that it would vary. Is there a term of art in engineering in this context?
A. No, nothing special in that.
MR HUTLEY: Q. So it could refer to large variations, small variations - one just can't tell from "varies"?
A. Correct.
…….
Q. And "vary" could be from --
A. Zero to the - to anything within the capability of the supply system.
Q. When you say "within the capability of the supply system" what are you referring to?
A. Well, where does this gas come from.
Q. If you then move down to line 23, there is a reference to "inlet pressure"?
A. Yes.
Q. What's inlet pressure? What would a competent designer understand "inlet pressure" to refer to?
A. It is the inlet to the shell in the case of the shell side, which is 0.25 kilograms per square centimetre. I am not sure of the units. It is not a very high pressure. And on the tube side it says that it varies.
Q. Just in that regard, could you jump down, if you would be so kind, to number 33 which is I think "number passes of shell"?
A. Yes.
Q. This then goes across to "shell side: 1" and "tube side: 5 by 2". Are you able to see that?
A. Yes. It suggests that on the tube size there is five passes.
….…
Q. So would a competent designer interpret it to mean that there are really going to be five banks of U-tubes?
A. Yes, I would think that's what I would interpret looking at it now.
Q. And such a competent designer would draw from that that there were intended to be five zones of some variety of U-tube?
A. Probably, but you would have to read the whole document and everything that was supplied, but that's what you would go by, that "5".
Q. If I could go back to 23, to "inlet pressure" --
A. Yes.
Q. -- keeping in mind that a competent designer would have interpreted or been likely to have interpreted that there was a requirement for five separate zones, including banks of U-tubes, would a competent mechanical designer of a heat exchanger know whether the variations there referred to were across all banks, or between banks of U-tubes --
HIS HONOUR: Before you answer that, the answer you obtained from Mr Ambrose a moment ago was that there was intended to be five zones of some variety of the U-tube.
MR HUTLEY: Yes.
HIS HONOUR: In the question you have just put you have described them as five separate zones, which I think is not an insignificant distinction.
MR HUTLEY: Thank you, your Honour.
Q. When I asked you the earlier question to which his Honour has referred and you said there were likely to be five zones, were you referring to five separate zones?
A. Five separate zones or there might be some other - I would ask the question what were those five? I don't know what they would be and I wouldn't - I would like to know more information before I - to determine whether they were five separate zones or five. Almost certainly they would be five separate zones but you would need to check.
Q. Going back to line 23, to "inlet pressure", again asking you from the point of view of a competent mechanical designer, would the competent mechanical designer, being aware there were variations of inlet pressure, be able to ascertain from that document how those variations were manifested in the ordinary operating conditions of this heat exchanger?
A. No.
Q. What should a competent designer, in your opinion, do in that circumstance?
A. I would expect that the designer, in this case, would be relying on further information besides this document.
Q. I will come back to the further information. Stopping at that point, then I would like you to have a look at the rest of that page and turn over to the next page, if you would. Read both to yourself if you would be kind enough. In that material which I have asked you to read is there anything which, in your opinion, would indicate to a competent mechanical designer of a heat exchanger how the inlet pressure varies as contemplated in line 23.
A. Look, I just can't see it at the moment. No, I couldn't see it. In fact, I'm a bit confused because you have got - introduced the term "loads" in this case and I'm not sure what that would normally mean. I would think it is the heating load and they are only talking about four loads - wondering where the fifth one has gone.
Q. Could you go over to page 2179 --
HIS HONOUR: At the bottom of the page.
MR HUTLEY: Q. It is in the loose one that you have.
A. This one here? Yes.
Q. I want to add to your consideration that the designer gets that document?
A. Yeah, that makes a hell of a difference.
Q. What is the "hell of a difference"?
A. Well, it suggests where the loads are and what the loads mean and how the tubes are going to be arranged and the flow through those groups.
Q. Would that assist the competent mechanical designer to ascertain how the inlet pressure was to vary as specified in line 23?
A. No, it doesn't give a clue.
Q. So a competent designer would be confronted by the possibility that the variation was referring to, one, between the zones --
A. It is the amount of heat to be transferred in that zone. I think that's what the load is. That's probably independent of pressure, if you like. It is purely and simply talking about the heat transfer that takes place, not the pressure.
Q. Going back to line 23 on the first page?
A. Yep.
Q. -- the competent designer is told, is he not, that there is variation on inlet pressure?
A. Correct.
Q. And if the competent designer, reading page 2179, knows that there are a number of inlets --
A. Yes.
Q. -- to a number of zones --
A. Yes.
Q. -- would a competent designer be able to make any assumption as to what the variation in pressure contemplated by line 23 related to?
A. Sorry, I have not been able to see in the document what's the maximum pressure that's likely to get on to the --
Q. Assume it is 6MPa?
A. 6MPa, say. He can't tell from this diagram or from this diagram (indicates) whether they are operating singly or separately or at different pressures. He can't tell from this diagram.
Q. The variation could be over time?
A. Over time.
Q. It could refer to surges?
A. It could be surges; it could be to the whole lot; it could be individually.
HIS HONOUR: Q. I notice that it refers to "pressure", singular. It talks of inlet pressure.
A. Inlet pressure.
Q. If the source is a singular source, what does that indicate?
A. That indicates that all of the passes are - all of these flow conditions are getting the same pressure, but it will vary depending on time. It will be zero if it is not activated and if the gas activation is required for gas flooding, it will go up to its maximum pressure of say 6MPa.
MR HUTLEY: Q. His Honour referred to a possibility that there was a single source.
A. Yes. It doesn't - from this you can't tell whether it is - the impression here is an inlet pressure and the inference is, on the shell side, there is only one source and probably from the tube side you might indicate that there is going to be one source from there, but it is going to vary in pressure. It doesn't really - the pressure is the same in - is the way you might look at it. On the other hand, because it varies it might be that it does vary down the passes. I wouldn't know. From the diagram here and from this, I wouldn't know. But my guess would be that it would be one pressure coming in and that's the way I would be looking at it.
Q. Would you be confident in designing this on that guess?
A. No.
Q. What would you do?
A. Well --
Q. I am sorry, I withdraw that. Since you wouldn't be confident in relying on that, can his Honour take it that, in your view, a competent designer of a heat exchanger would not be acting competently in relying on that guess?
A. I would think that to rely on that guess alone might be stretching the limits, but not knowing the whole circumstances - there is usually a whole lot of circumstances behind contracts. If you are going to get this done, you want it done tomorrow. For example, there is a hell of a lot of pressure. The guy you talk to is away, or sick, or something like that. There is a whole lot of actions that can affect your decisions on doing this. The query would come up in your mind and then you have to take a risk assessment, if you like - use the term you have used before - in deciding which is the better way to go.
Q. Can I take you down to the next matter at line 25 on page 2172 - the first one.
A. Yes.
Q. That refers to pressure drop allowance calculation - do you see that?
A. Yes, I understand that.
Q. How would a competent mechanical designer of a heat exchanger interpret that entry?
A. On the shell side he is expecting that the pressure drop, across the shell, in water flowing at 54,000 kilograms an hour, the pressure drop across the heat exchanger on the shell side would be limited to 0.09. When you get to the tube side, being consistent with all the information above there, you would expect that the pressure drop is going to vary. There would be no pressure drop when there is no flow, it is obvious, but when there is full flow at 6MPa maximum pressure, you would get a maximum - you would get a maximum drop there and it, therefore, would range from a high pressure drop to a low pressure drop and that's what I would be assuming and that's what the word "varies" means.
HIS HONOUR: Q. Is the drop in pressure a product of the - merely the product of the passage of the material --
A. The gas.
Q. -- through the exchanger?
A. Yes, your Honour. When you pass water down a pipeline, for example, it won't flow from here to there unless there is a pressure pushing it and therefore, if there is no pressure between the two of them, it stops. Therefore, it will vary, in this case, when the gas flows through the pipeline. When there is no gas flowing, there will be no pressure drop. When there is maximum flow through the tubes, you will get the maximum pressure drop. All it says there is it is going to vary and it is leaving it to the designer to contend with it. There is no limits on the pressure drop. Sorry, I see in 31 where you have the 6MPa design pressure.
(T4521:30 - 41; T4521:53 - T4522:25; T4523:25 - T4527:58)
478 Later, in cross-examination by counsel for Tyco, Mr Ambrose was taken to the Tyco specification. Having read through to section 8 of that specification he stated that he could "see no indication that there would be differential pressures between the zones". Which prompted the following questions and answers:
HIS HONOUR: Q. I am sorry, does that mean that it indicates no differential pressure?
A. Yes, all those, the whole of what I have reviewed, which doesn't give you a clue that there could be a differential pressure between the zones.
Q. Do you think the use of the standard specification was appropriate for the design of five separate zones?
A. For a unique vessel I would have thought that they might have been more specific. That's my own impression. I would have thought you would - I have to go back and see what the title is. Yes, it is for the Grinnel controlled atmospheric gas flooding system, so it could be for a number of installations that Tyco were utilising, so it could be a number of heat exchangers, but for this particular contract it would be under certain circumstances atmospheric, but it doesn't indicate that there is differential pressures across there.
(T4534:49 - T4535:12)
479 That evidence lead to the following further cross-examination which in my view only tended to emphasise the futility of the exercise undertaken on behalf of Tyco:
MR HUTLEY: Q. Would you agree with me it does nothing to resolve the issue as to the meaning of "varies" in the page of the data sheet I took you to?
A. I agree with that.
Q. A competent designer of a heat exchanger would still be in a position of uncertainty --
A. That's right.
Q. -- as to how it was intended this heat exchanger be affected by pressure?
A. This might even dispel a little bit of that uncertainty because there is no mention in it at all.
Q. But, in your opinion, a competent designer would still be in a situation of uncertainty?
A. I would think he would have a question mark, yes, and he has got to resolve it some way himself.
Q. What, in your opinion, is the appropriate way to resolve it?
A. Normally there are personal discussions which take place either over the phone or directly when you get this. You don't suddenly get a piece of paper out of the blue, there are other discussions, so much would depend on what information and how it was presented to him and what was presented there. That may have been sufficient to dispel all doubts in his mind. As an example, "We want it quickly. Do the design within a week because it is urgent. It is just a standard shell and tube heat exchanger. We will give you an update as you design it". If that was presented to him he would probably not bother checking any further; but it depends on the communication. Just looking at this alone, in my mind, and particularly in hindsight, you are a little bit unsure of what way to go and how to handle that; but the figure that you had on that sketch showing the loads 1 to 4, for example, that clarified, from a mechanical designer, the layout of the tubes and hence, the sizing and the pitching and that type of thing. So that would give him enough to keep going and he could design the whole system on that and probably not refer back, but he wouldn't know whether he had to design for the differential pressures in the different zones.
Q. But without knowing that, he couldn't design it, could he?
A. No, he can. He can assume that there is no differential pressures. If he made that assumption, then the design would go ahead and that's the standard sort of way of doing it.
Q. Would that be, in your opinion, a prudent way of --
A. Well, as I said before, it would be prudent if the information that he had been given to [sic] him, plus this - and I don't know what transpired beforehand but if all that was reasonable, then he would go ahead with it. But if he didn't have that - if I were presented with this information alone, I would be asking a few questions. I would ring Bill. "What is this about?" That's what I would probably be doing, unless someone told me that it is just a standard heat exchanger.
Q. But there is nothing standard about this heat exchanger, is there?
A. It is standard - everything is standard, except the partitions and hence the nozzles. So - but each nozzle is standard and each partition is standard. Everything is standard except the number that has been put together into the channel: that's unusual.
(T4535:14 - T4536:39)
480 In further cross-examination of Mr Ambrose by counsel for Tyco, emphasis was given to that last observation, as appears from the following evidence concerning the Tyco specification:
Q. When you said, "There is nowhere in here to indicate there was a differential pressure" --
A. Yes.
Q. -- what you were referring to was the document I am taking you to now, part A?
A. That one there, and the other one, it didn't indicate there were differential pressures. There were varying pressures, but it didn't indicate there were differential pressures between zones.
Q. There could be, or there - there may be or there may not be, one simply doesn't know?
A. Doesn't know. This document doesn't help you.
Q. I would like to take you to clause 9 of this document.
A. Yes.
Q. There would be nothing in that paragraph which would resolve the query raised by the ABB Lummus data sheet in relation to pressures, would there?
A. No, I can't see in my interpretation - I can't see that it would clarify whether there was a differential pressure across the division plates.
Q. What is your interpretation of the document?
A. My interpretation is that each heat exchanger and this particular heat exchanger, there is only one shell side and one tube side - that's what I would take it as - they shall be tested independently without pressure on the adjacent side. That's the worst case for both of them. That's why they are done that particular way.
Q. In giving that answer are you assuming "heat exchanger" is each zone?
A. No, I am treating - the specification suggests, the way it is written, that the heat exchangers in 9.1 - it refers to "heat exchangers", plural. I can see from the title of the document it is dealing with a number of heat exchangers because it could be supplied for different contracts. Therefore, it is quite a legitimate document in that sense, it is no problem, but here it is saying that the shell and tube sides of various - of all of the heat exchangers as supplied - and I would take that as the shell and the tube side of this particular heat exchanger, and there would be only two tests.
Q. But I think you agreed with me it wouldn't serve to resolve the question in your mind raised by the varying pressures, the reference to "varying pressure" in the ABB Lummus document?
A. It would --
Q. Is that correct?
A. No, I would have thought that you have been told in that other document that you are to test it at say 9MPa and hence, that's all this test is talking to you about. I would say that would tend to suggest that that's all you needed to do and it might in fact confuse you about - and help to resolve the problem in your own mind that there was no differential pressure across the division plates. It doesn't really help or doesn't solve the problem, but it could confuse you a little bit more and lead you down the wrong way.
Q. Because what you have here a prudent designer would consider is what appears to be a standard form document?
A. Correct, yes.
Q. Some parts of which are appropriate and some parts of which may not be appropriate --
A. Correct.
Q. -- to the heat exchanger?
A. That's right.
Q. And a prudent designer would realise that the thermal designer had remarked upon variation of pressure in the document which I took you to, referring to inlet pressure?
A. Yes.
Q. And that would be a concern for the prudent designer; correct?
A. I would have interpreted that it was going to vary depending on the operations, somewhere between zero and 6MPa.
Q. And possibly between zones?
A. And, as I said before, it could be between zones - until you start reading the whole document. When we started out it was --
Q. Having read the whole document would you agree with me that a prudent designer, having read the pages of ABB Lummus which I took you to - those three pages - together with the Tyco Technical Service Group specification, part A, would be in a position where, to satisfy himself as to how pressure varied within this vessel, he had to make further inquiries?
A. I would think some mechanical designers might go ahead and, when they looked at the 9.3, they said, "That's probably all that was needed to be done" and others might think about that there could be - if he found out more about the process and how the heat exchanger was to be used, he might find out that there could be some differential pressure. But in most cases I would think that the designer is not thinking about differential pressure across the division plates. That's my feeling from all the documents here. But a really competent designer might query - and I would agree with you - he might query that, even after reading all these documents here.
Q. When you say "really competent", are you saying a prudent designer?
A. Well, I thought most designers were prudent but I don't know the difference. I think that - I mean there are degrees of competence, there are degrees of experience with people's knowledge and it depends on the circumstances, the conditions of the contract, if you like. Is it to be done in a heck of a hurry and all of those things sort of influence the way the designer tackles his job, and other information that must have gone on verbally between parties in this case. I can't conceive that this just went on without any discussion between anyone.
Q. Don't you think a prudent designer would just ask, "How is this thing going to operate?"
A. Yep, I would have thought that in this case - but again, if --
Q. And --
HIS HONOUR: Q. You were going to add something?
A. I was going to say that it depends on the circumstances. If you have been dealing with a company before, or there is something special, or the words that have been passed over to you and the urgency of the job, all of those things, and just some simple words, "Look, she is a standard job but it has got 10 nozzles in it", for example, that would be enough sometimes to just flip the balance for a person to decide whether that was right or not.
(T4537:31 - T4540:22)
481 That evidence underscored an approach of Tyco which, in my view, bordered on desperation at times. In cross-examination by counsel for EMAE, Mr Ambrose was taken to some earlier evidence in cross-examination and clarification of it was obtained as follows:
Q. I will read it again. Perhaps I will read more:
The impression here is an inlet pressure and the inference is, on the shell side, there is only one source and probably from the tube side you might indicate that there is going to be one source from there, but it is going to vary in pressure.
Do you remember that now?
A. I remember saying that, I think, yes.
Q. Then you said, about four lines further down, as appears in the transcript:
From the diagram here and from this I wouldn't know, but my guess would be that it would be one pressure coming in.
Do you remember that?
A. Yes.
Q. If there is only one source for all the zones, if there is only one pressure coming in, to use your words, then the gas will arrive at the nozzle for each zone at the same pressure?
A. Yes.
Q. It follows that any variations between the zones, in this hypothesis, would be associated with flow?
A. Variations with flow, yes.
Q. I think you said this also yesterday, that variations in pressure associated with flow are present in every heat exchanger, are they not?
A. Correct.
Q. In every heat exchanger, because of the physics of flow of fluid, there will be lower pressures at the outlet nozzle than at the inlet nozzle?
A. Correct.
Q. These are found in pressure differentials across the partition plate in every heat exchanger?
A. Yes.
Q. Even in the most conventional heat exchanger there will be a pressure differential across the partition plate?
A. Yes.
Q. These pressure differentials are provided for in the TEMA standards and tables, are they not?
A. I haven't seen the latest TEMA, but they have been in there.
Q. And competent mechanical designers go to the TEMA tables to work out what is the appropriate thickness for partition plates, having regard to the pressure differentials that will exist in all heat exchangers?
A. All the heat exchangers which are dealt with within the TEMA system, yes.
Q. The TEMA standards are tables calculated, are they not, to deal with this very pressure differential associated with flow through the system?
A. I am sorry, I haven't got the tables in front of me and I haven't seen them for a number of years and I don't know which ones these were designed for.
Q. However, the pressure differentials of this kind - that is, associated with flow through the heat exchanger - are relatively small pressure differentials?
A. Correct.
(T4596:1 - T4597:27)
482 Questioned about the implications of cl 9.3 of the Tyco specification to a competent mechanical designer of a heat exchanger, Mr Ambrose expressed the view that the clause conveyed the implication that "the pressure differentials across the partition plate will be minor" (T4603:40)
483 It will be noted from this evidence that Mr Ambrose had picked up the standard nature of the draft CIG specification which had been adapted by Tyco, in his reference to the fact that, throughout the Tyco specification, it referred to "heat exchangers." This is just another example of how inappropriate the standard specification used by Tyco was for the design of a heat exchanger intended to have full pressure bearing partition plates.
484 From that evidence of Mr Ambrose one could not safely conclude, in my view, that the Lummus thermal data had any significance to a mechanical designer other than that to be drawn from the evidence of Mr Morrison and Mr Pisano and which I have accepted.
485 It was Mr Morrison's evidence that the specification of "five individual tube bundles" indicated that "each bundle could flow separately". However, that did not mean that "any part of the tubeside would be un-pressurised while the shellside was pressurised". With that I entirely agree and would add that the information provided in the form of the Tyco specification, read separately, or in conjunction with the Lummus data sheets, did not convey the intention to have separately pressured zones, each one capable of operating without pressure, other than atmospheric pressure, being present in adjacent zones.
486 In my view, it is almost a contradiction in terms for Tyco, having suppled a scissors and paste version of a standard specification applicable to unspecified "heat exchangers", providing for two separate tests only, one for the tube side and one for the shell side, to say that there was some indication in the specification of the design requirement for pressure bearing partition plates sufficient to put a manufacturer or mechanical designer, or for that matter the thermal designer, on notice occasioning inquiry which would have exposed the true design intent of the Tyco Heat Exchanger.
487 The foregoing observations on the evidence paid no regard to the steps taken by Mr Morrison to obtain further information concerning the Tyco specification. The views I have so far expressed are based purely on the evidence so far as it concerned the technical implications of the Tyco specification read in conjunction with, or separately from the Lummus data sheets.
488 However, the evidence is compelling that Mr Morrison made appropriate and adequate enquiries of MEF to satisfy himself as to the sufficiency of the information he had been given to carry out the mechanical design of the Heat Exchanger. That is so whether or not one has regard to the fact that Tyco placed significant time constraints upon MEF and, in turn, through MEF on EMAE, in carrying out necessary design and fabrication work.
489 The enquiries that Mr Morrison made were of Mr Zahradnik. It is part of Tyco's case that Mr Morrison had no right to rely on that information in the face of his knowledge that Mr Zahradnik was not a qualified engineer. I regard that submission as lacking any semblance of practicality and that is an observation which I think was shared by Mr Pisano whose evidence in cross-examination by counsel for Tyco was as follows:
Q. What I want you to agree with me is that a competent mechanical designer, confronted by that situation, would have been astute enough to require production of all the information set forward in the "Remarks" section of the ABB Lummus data sheet. Do you agree with that?
A. He should have looked at it, yes.
Q. He should have, would you agree with me, acting competently, required its production to satisfy himself that there was nothing in them material to his decision as to how to design this heat exchanger - do you agree with that?
A. Again, I will say that it would depend on his client - how competent they were.
Q. Do you agree with me he should have asked for the material?
A. I believe you should ask for that information that is on that sheet, yes.
HIS HONOUR: Q. That information being?
A. The items in the remarks, yes.
MR HUTLEY: Q. I want you to assume that he says words to this effect to someone at MEF, the company which has engaged him, "You only sent me data sheets 1 of 8 and 8 of 8" - that is, the first page and the diagram, and you are familiar with that diagram, are you not --
A. Yes.
Q. -- which I think is referred to at page 17 of your statement. I want you to assume Mr Morrison said this to a Mr Zahradnik: "You only sent me data sheets 1 of 8 and 8 of 8. Can I have the others?" He is told, "They contain thermal information which is not relevant to you". I am asking you to assume that's the conversation. I want you to assume that Mr Morrison knew that Mr Zahradnik wasn't a trained mechanical engineer. He, in fact, held the position of a cost estimator at MEF. Would you agree with me that a competent mechanical engineer of the proposed heat exchanger would, in those circumstances - namely, having received only the ABB data sheet, together with part A of the specification, and not having seen a process specification such as you have described from the process designer - have been not acting in accordance with good practice to embark upon the design of this heat exchanger until he had seen the sheets referred to in note 2 on the "Remarks" column?
A. No.
Q. You say that. Why?
A. Because his client, if he was in the business of manufacturing heat exchangers, would know whether or not that information is relevant: should know. Should know and would know.
Q. When you speak of "should know", do you make it on the assumption that the person one is speaking to is trained to make those judgments - that is, within your client?
A. My experience has been that estimators for companies manufacturing this sort of equipment are very familiar with what they are dealing with and, in a lot of cases, have a lot of knowledge, in fact more knowledge in what the design should be like than, say, a graduate engineer. So it really depends on the company that you are dealing with. If you are dealing with a company which has never manufactured a pressure vessel before and an estimator who doesn't know what a pressure vessel is, then I would imagine that the design engineer should be more forceful.
Q. When you give that answer are you assuming that one is dealing with the usual case where one has received a process specification from the process designer?
A. When you say "one", are you talking about the mechanical design engineer?
Q. Yes, the mechanical design engineer.
A. Yes.
(T4778:54 - T4780:28)
490 As noted earlier in these reasons the commercial relationship between MEF and EMAE had been very long standing and it is not disputed that MEF was a specialist manufacturer in the field. It also possessed a design department. I have quoted earlier in these reasons the evidence in chief of Mr Morrison of the communication with Mr Zahradnik in which he was told "Just use the minimum thickness for the partition plates tabulated in TEMA" and that he was "absolutely certain that words to that effect" had been stated.
491 In cross-examination Mr Morrison was prepared to accept that the word "minimum" may not have been used. I regarded that as more of an indication of his basic honesty rather than any basis upon which to regard his evidence in chief in this particular aspect as unreliable. In any event, as explained by Mr Morrison in cross-examination whether the word "minimum" was used is of no significance in the context of the communication between him and Mr Zahradnik. It is obvious that Mr Morrison was being informed that he did not need pressure values in order to calculate plate thickness. It was sufficient to simply use TEMA R, which could only refer to the minimum thickness in the absence of the provision of pressure values.
492 In this, Mr Morrison was supported by the evidence of Mr Pisano. Mr Morrison's evidence in cross-examination was as follows:
Q. So does his Honour take it that what occurred was this: when Mr Zahradnik said, "Use TEMA R" you concluded that the pressure drop calculation called for by line 25 --
A. 23 - 25, you are right.
Q. -- 25, I think, of the ABB Lummus data sheets, justified you in concluding that the minimum thickness was all that was required?
A. Yes.
Q. And you didn't do any calculations because you made the assumption that the minimum thickness was all that was required?
A. No, I didn't do a calculation because there was no numbers with which to do a calculation. It was not possible to calculate the number.
Q. Weren't you concerned that you hadn't received the response "Here are the numbers"?
A. No, I wasn't concerned. I would rather have had the numbers.
Q. Right.
A. But the fact that I was instructed to use TEMA R, I was happy, that's fine; it wasn't unreasonable.
Q. The thickness called for by TEMA R depends upon the numbers, doesn't it?
A. No. In the tabulation it is a minimum based on history, if you like. It has been found that in most cases this particular thickness is good enough.
Q. Good enough for what?
A. For use.
Q. For what?
A. The TEMA R. Sorry, the tabulation in TEMA is all there was until a year or two back before that. Prior to that there was no calculation. TEMA R has changed over years.
Q. What would have happened if the pressures were significant?
A. I would expect the significant number to be in there.
HIS HONOUR: Q. Referring to the Lummus sheet?
A. I would expect it to be on the Lummus sheet and I would have expected Norbert to have told me.
MR HUTLEY: Q. When you received the response you did from Norbert Zahradnik, you knew you hadn't received an answer to your question about what the pressures were; correct?
A. Yes.
HIS HONOUR: Q. That is, in the sense of express numbers?
A. Mm.
Q. Quite --
A. Its answer was to use TEMA.
MR HUTLEY: Q. You hadn't got the figures; correct?
A. Mmm-hmm, but I wasn't worried about that, because the figures were not that critical. He gave me the thickness. That's all I wanted.
Q. But he didn't give you the thicknesses?
A. Yes, he did. He said "use TEMA R." He meant the thickness in TEMA R.
Q. You interpreted it to mean use the minimum thickness in TEMA R?
A. What else could I do?
HIS HONOUR: Not an unfair question.
MR HUTLEY: Q. You could have asked that Lummus supply you the figures, couldn't you?
A. Well, that's getting a bit of a prima donna. I had asked the question once. I got an answer. I used the answer. It was a normal question and a normal sort of answer. There is nothing very special about the answer. It indicated that the figures weren't very important, that they weren't very high. Going back to the sheets that I have heard about since in the part B, there are pressure drops mentioned in there on some of the Tyco data sheets and they are very low figures.
Q. But they are pressure drops across the cycle?
A. Across the U bundle --
Q. Yes.
A. Yes. That's all I was talking about because I didn't know there were pressure drops between zones. You see, there are two different pressure drops. You're usually talking about a pressure drop which is the flowing pressure drop between the two ends of the bundle. The other pressure drop is not a pressure drop, it is a pressure differential, which didn't exist in my theory.
(T4703:18 - T4705:13)
493 Mr Pisano's evidence in cross-examination by counsel for Tyco was as follows:
Q. In that regard, would you not agree with me that a competent mechanical designer would have understood that the reference in note 2 to the "estimated performance for load 1 on sheets 3 to 7" was likely to be the place where that designer would find an answer to the question as to the pressure drop allowance calculation in line 25?
A. No.
Q. You don't think so?
A. No, I don't think so.
Q. In the ordinary course would you have asked for such calculations --
HIS HONOUR: You are referring to?
MR HUTLEY: Line 25.
THE WITNESS: On line 25?
MR HUTLEY: Q. Yes.
A. I would have requested that information.
Q. I want you to assume that such a request was made in these terms by Mr Morrison of a Mr Zahradnik at MEF:
I want to calculate the thickness of the partitions. To do that I need to know the maximum allowable tube side pressure drop. Lummus have indicated that the tube side pressure drop varies, but haven't given specifics. Can you find out the numbers and let me know?
That's the question that's asked, I want you to assume. I want you to assume that the answer was "just use TEMA R", just those words. Would you agree with me that to a competent mechanical designer that response was inadequate?
A. Not necessarily.
Q. What would be the factors which would make it adequate?
A. If the person you are having this conversation with, or requested this information from, was familiar with the type of equipment being designed, then I would have accepted that. If he wasn't, then you may need to explain the importance of it.
Q. What would you take from the reference "just use TEMA R"?
A. TEMA R provides information on the minimum thicknesses and if someone asked me that - told me to do that, I would say, "Well, use the minimum thicknesses."
Q. You would infer the minimum thickness?
A. Yes.
Q. If you were to know that the person you were speaking to was not a mechanical designer, was not a qualified designer of heat exchangers, would that affect your attitude to the response you received from him?
A. Not necessarily, no, it wouldn't.
Q. Why not?
A. Because he would be familiar with the manufacture of heat exchangers, I would imagine, and if he was, then he would know what the minimum thickness for a partition plate was, just through experience.
Q. Have you ever designed a heat exchanger without receiving the pressure drop calculations?
A. Yes.
(T4761:32 - T4762:55)
494 Further, this criticism offered on behalf of Tyco failed to take account of the fact that MEF had its own mechanical design department capable of providing reliable information to Mr Morrison through Mr Zahradnik.
495 It was submitted on behalf of Tyco that Mr Pisano's evidence was, at times, confused. I found his evidence anything but that and I have accepted his evidence and that of Mr Morrison, as quoted, as reliable. I have referred to some inconsistency in the subject matter in the evidence of Professor Bremhorst whose evidence eventually made it clear that he accepted the reasonableness of Mr Morrison's conduct. Messrs Ambrose, Peck and Walker gave evidence to like effect. Mr Peck's evidence was as follows:
Q. I want to ask you to assume that Mr Morrison said to the person he was dealing with at MEF, "I want to calculate the thickness of the partitions. To do that, I need to know the maximum allowable tube side pressure drop. Lummus have indicated that the tube side pressure drop varies but haven't given specifics. Can you find out numbers and let me know?" Mr Morrison received the following reply: "Just use the minimum thicknesses for the partition plates tabulated in TEMA."
A. That seems to me a matter of evidence. If that's the advice he got, he would proceed that way, I assume.
Q. It would have been reasonable for him to act on it?
A. Yes.
Q. And I want you further to assume that the same Mr Morrison said to the same other person: "You only gave me part A of the Tyco specification, but it makes reference to part B. Please let me have a copy of part B." And he was informed: "Part B is only raw thermal data which is being worked on by Lummus. They are issuing a proper thermal data sheet." And then, subsequently, Mr Morrison said: "You only sent me data sheets 1 and 8 of 8. Can I have the others?" And he was told: "They contain thermal information which is not relevant to you." Again, assuming those facts are proved, it was reasonable for Mr Morrison to rely on the answers he got as a resolution of the query that you say might have caused him to go back to the specifier?
A. Yes.
(T4059:21 - 57)
496 Tyco has relied, I think with some justification, upon the evidence given by Mr Morrison in cross-examination to the effect that, had he received all of the information it would have indicated that differential pressures had been contemplated between the various zones.
497 I propose to set out an extensive part of that cross-examination for a number of reasons. One is that I think it provides a context in which the material relied upon by Tyco may be evaluated. The second is that it is clear that the evidence upon which reliance is placed is evidence given with hindsight and not evidence of what Mr Morrison's state of mind would have been at the time he was called upon to carry out the mechanical design of the Heat Exchanger. The evidence was as follows:
Q. In the middle of the page, Mr Morrison. That's the specification of which you received part A; do you recall that?
A. Yes.
Q. I'll come back later on during my cross-examination to part A. You didn't receive the second part of the specification?
A. No.
Q. I want to ask you, had you received the second part, whether there was information in it inconsistent with the assumptions that you worked on in designing the heat exchanger?
A. There was, yes.
Q. There was, was there not?
A. Oh yes. There's mention of bottles, mention of individual racks of bottles.
Q. Yes. There were a number, will you agree with me - and I'll takes [sic] you through in due course - there were a whole series of things in that specification which were at odds with your assumptions?
A. Yes.
Q. I want to take you through them in detail. It would be fair to say had you got that, you would never have designed this heat exchanger in the way you did?
A. No.
Q. Do you agree with me?
A. I agree with you.
Q. Had you got it, you wouldn't have been able to design it in the way you did because it would have been clear that the operating conditions in which this heat exchanger was anticipated to work necessitated differential pressures between the zones contemplated in the heat exchanger; correct?
A. I understood that one part could work while the other section was completely empty.
Q. Quite.
A. Yes.
Q. In other words, one zone - and if you would like to look at board 2 again it might assist you to visualise it --
A. Yes.
Q. -- what you're telling his Honour is had you received part B, you would have realised that the intended operation of this heat exchanger could be that one of those zones identified on board 2 could be fully charged at the design pressure, namely, 6MPa, whilst all the other zones were free of gas?
A. Yes.
Q. That would have necessitated the design of a heat exchanger with pressure bearing - in a significance sense - partitions between those zones?
A. Yes.
Q. It would have been clear from reading part B of the specification that what the person who was being asked to design this was required to design was a heat exchanger with multiple zones independently pressurised?
A. Yes. Actually, four heat exchangers.
Q. Notionally, four heat exchangers?
A. Four separate ones.
Q. Could I then take you to exhibit 1.339, which you'll find at page 2172, I think. It is in volume 6. Just before I go there, would you just have part A of the specification open.
A. All right.
Q. You referred in answer to questions by my learned friend Mr Robb in evidence yesterday to clause 9 --
A. 9.3?
Q. 9.3, yes. I think in the transcript Mr Robb tells me that's referred to as 8.3 but it was in fact 9.3. I would like you to agree with me that had you received part B of the specification, what appears in 9.3 would have in no way influenced your conclusion that you had to design this on multiple independent zones?
A. Sorry, could you repeat that?
Q. It wasn't an elegant question. What I'm saying is, you've agreed with me if you'd received part B of the specification, you would have known that what was being required was the design of a heat exchanger with four independently operating and independently charging zones; correct?
A. Yes, which is at odds to 9.3 really.
Q. Sorry?
A. That's at odds with 9.3.
Q. Quite, but 9.3 is at odds with that?
A. It's at odds with it, accepting that it does apply individually to each one, mmm.
Q. Had you got the whole specification, you would have said 9.3 means individually pressurise each of the zones?
A. Yes.
Q. So if you had been provided with the entire specification, it would have been clear to you that 9.3, read in that context, was quite clear?
A. Yes.
Q. I'd just like to take you to --
HIS HONOUR: I thought you were going to take Mr Morrison to the particular parts in part B?
MR HUTLEY: In part B? I thought I would, but it seems we are completely ad idem. Would your Honour --
HIS HONOUR: I don't appreciate that.
MR HUTLEY: Sorry, your Honour?
HIS HONOUR: You've assured the witness that you'll take him to particular parts of it --
MR HUTLEY: I intend to do that your Honour.
HIS HONOUR: I think it is appropriate.
MR HUTLEY: Sorry, your Honour?
HIS HONOUR: I think it is appropriate.
MR HUTLEY: As your Honour pleases.
Q. Could you open 1.228 and could I take you to part B, page 1735. I said I would, and I didn't, take you to the parts of part B and ask you about the parts of it which would have been inconsistent with your assumptions on the basis of which you designed this heat exchanger.
A. Mmm-hmm.
Q. Could I take you through it and ask you if this would be one of the number of things which were inconsistent. Firstly, in the first sentence:
The unit has to heat a maximum quantity of 3,650 square metres of Inergen gas in a three minute period.
A. That is meaningless to me.
Q. If you go down from that --
HIS HONOUR: Q. What were the parts, what was the material in part B that would have alerted you to the fact that --
A. Somewhere in part B they mention bottles, I'm not quite sure where. I'm just quickly looking for it actually.
MR HUTLEY: Q. Would you go to note 3 on the first page, under "Individual Loads"? Do you see that?
A. Here we are, yes the last sentence:
Flow variation is as a result of gas being released from banks of pressurised gas cylinders.
HIS HONOUR: Q. What's the significance of that to you?
A. I understood reading that, with hindsight, knowing what I know, I realised that there are bottles available, individual bottles.
Q. Is it possible to put yourself in the position you were in back in 1994?
A. If I knew that?
Q. Yes.
A. Mmm actually, even reading that I don't think I could - without knowing what's happening, even reading that, I would think that I could still possibly expect it to be fully pressurised. It's not clear.
HIS HONOUR: It just demonstrates the unfairness of the advocacy you've followed.
MR HUTLEY: I accept that. I didn't understand it to be unfair. I will now take the witness through each part in detail.
HIS HONOUR: In doing so, I think it is important that it is clear in the witness's mind that what he is being asked is the significance of that material if it had been received at the time, and not what he might think now in hindsight.
MR HUTLEY: Thank you, your Honour.
Q. Could I take you to the third page of the document?
A. The tabulation?
Q. Yes, the tabulation. Again, mindful of what his Honour said, if you had read that table, that would have told you things about the likely operation of the system, would it not?
A. Not really. Not - it would be of no interest to me.
Q. Have you studied it?
A. I've seen it. I haven't studied it.
Q. Have you read it?
A. Oh, I read what it is. It is just telling you about the various loads over time, but that's unimportant to the mechanical design.
Q. Does it not also tell you about pressure drops in relation to those loads?
A. Oh, truly it does, yes.
Q. Yes. Is that not of importance to you?
A. It would have been, yes.
Q. You see, what I want to ask you is if you'd received part B, you'd have read it carefully, would you not?
A. Mmm.
Q. And you would have --
A. I would see that you've got quite a large pressure drop because of the gas.
Q. Yes. Just to put you back to the time in 1994, that's how you would have read it in 1994, would you not?
A. Yes, upstream and downstream.
Q. And that's vital information to you, is it not, or it would have been in 1994?
A. Yes.
Q. And it would have been vital because it tells you about changes of pressure in the gas; correct?
A. It does.
Q. It tells you, does it not --
HIS HONOUR: I don't think --.
THE WITNESS: Just give us a moment to read it.
HIS HONOUR: Q. What you [are] asked was whether it would be vital information and there were two questions being put to you.
A. I'm sorry your Honour?
Q. Mr Hutley really put two questions to you?
A. That's why I'm a bit confused with him.
Q. Involved in it is this would have been vital information.
A. Could we start again?
MR HUTLEY: I will withdraw the question and ask it again.
Q. Do you tell his Honour that in 1994 you would have read this information if you'd received it?
A. If I'd received it, yes.
Q. I'll take you through it line by line and I'll ask you: you would have read the headings to the various columns, would you not?
A. Right.
Q. Yes?
A. Yes.
Q. And you would have realised that the heading to the first column is a time increment; is that right?
A. Yes.
Q. And it refers to the position over time; do you see that?
A. Yes.
Q. And you would have read, would you not, moving across, that there was a reference to mean downstream orifice pressure, do you see that?
A. Yes, falling from 60 down to 56.
Q. In the first 10 seconds?
A. Mmm. It wasn't falling from 60, I don't think, but I would expect it to be falling from 56.
Q. So you would have believed in operation this system was intended to have an operating condition whereby pressure of gas reduced overtime when it was operating?
A. Yes.
Q. And you would have understood, would you not, within the first 10 seconds the pressure was 56 bar; do you see that?
A. Yes.
Q. And after that 49 bar?
A. Because your bottles are emptying.
Q. Because your bottles are emptying.
A. Yes.
Q. And that's the bottle in respect of the zone which has been activated?
A. Yes.
Q. On the assumptions that you made about this heat exchanger, that would be information inconsistent with those assumptions, would it not?
A. Yes.
Q. Because you would have assumed that all the other zones remained at about 6MPa?
A. No.
Q. 60 --
A. If the pressure was going to vary I would expect the others would have varied with it.
Q. They couldn't vary because --
A. They are joined together.
Q. But there would be no flow through them?
A. But they are joined together. So if the pressure is coming in a supply pipe going to four different places, then if this one is dropping in pressure, all the others will drop with it.
Q. So you would say this would be consistent with your assumption?
A. That would be consistent, yes, not for the reason we're talking about, though. It is just because they are joined together.
Q. You would say that this system would be consistent with your assumption?
A. Yes.
Q. Because you would say that each and every zone would be continually pressurised at the same rate?
A. On the inlet side, yes.
Q. On the inlet side?
A. If they are not flowing, the outlet side would be the same rate, the same pressure as well.
Q. The difficulty with that is what happens if another zone discharged, that is, what happens if the fire moved to another zone?
A. It depended how big their storage bottle was, how big - they don't tell me how big the storage is. It may be gigantic, I don't know.
Q. If you read this and made the assumptions about your system, would it not have told you that what you were assuming was completely inconsistent with this?
A. If I had read about the bottles I would have asked the questions straight away "What are the bottles doing?" They are banks of bottles. The first thing you think of is what are they are doing.
Q. Would you look at the second board --
A. By the way, a pressure drop that you're seeing there, looking at the bottom end, the 9.5 pressure, that would be in relation to pressure on the inlet of probably 12, not 60.
Q. I understand. Would you put board 2 up at a convenient point to you?
A. Mmm-hmm.
Q. I want you to assume that in 1994 you became aware of the information in this schedule which you have looked at, namely, the tabulation?
A. Mmm-hmm.
Q. I want you to assume you were seeking to design the heat exchanger that you were asked to design. Do you see, put yourself back in 1994?
A. Mmm-hmm. Assuming I was then given this? Okay.
Q. Prior to being given this information, on the basis of the other information, the information you had in truth, you believed that the whole of the heat exchanger had to be equally pressurised over time; correct?
A. Yes.
Q. And you believed that because you believed that there would be a constant pressure from a gas source into the heat exchanger?
A. Yes.
Q. And you believed that that would charge the heat exchanger such that if one zone was activated, gas could flow to do its work?
A. Yes.
Q. And then if, for example, the fire spread to another zone, there would be gas in the heat exchanger at 6MPa and gas could flow to meet the needs of that fire and so on?
A. Yes.
HIS HONOUR: Mr Hutley was prompting that by inserting the words "at 6MPa". Of course that may not be the case, the second zone, for example, was activated at some stage after the first.
MR HUTLEY: Your Honour, that's what I'm coming to - on the assumptions the witness had --
HIS HONOUR: It's one thing to come to it. It is another thing to insert it into a question. It involves multiple questions by doing that.
MR HUTLEY: I am sorry, your Honour. If your Honour thinks it's unfair, that's sufficient, of course.
Q. I understood that you assumed, when you designed this heat exchanger, that the heat exchanger would be charged essentially at 6Mpa constantly?
A. Yes, something less than 6.
Q. Slightly less?
A. Say, 55 or 56.
Q. But it would be equally and constantly charged with that pressure of gas, whatever the pressure was, about 60 megapascals; correct?
A. Yes, and I would expect the pressure to drop a little bit when they used some of the gas.
Q. Exactly, because of the flow characteristic, there would be some minor drop in the zone activated because of the flow, the characteristics of the flowing gas?
A. Yes.
Q. But you then assumed that the other zones were charged at the pressure which you assumed they started at, say 55 --
A. Call it 55.
Q. 55, what's that, bar?
A. Bar.
Q. Yes, 55 bar. If we stay in bar it may be easier?
A. It's easier to say.
Q. So you assumed that all the other zones were charged at 55 bar?
A. Yes.
Q. In effect, charged ready to extinguish a fire should one develop in the zone to which those zones related?
A. Yes.
Q. You assumed that when the system was activated, there was relevantly an unlimited quantity of gas behind it?
A. Maybe not unlimited, but a very large quantity, yes.
Q. Very large, but relevantly from your design point of view, without limit? Do you see what I mean?
A. My design point of view, an adequate quantity for the fire people's needs, they would provide enough gas to do the job.
Q. I see.
A. The fact that the pressure fell wouldn't concern the mechanical design.
HIS HONOUR: Q. Why is that?
A. If you design something for 6MPa and it's only filled halfway, it's only carrying 3MPa, it doesn't matter.
Q. So that I can understand this table that you've been shown, does that mean that after three minutes the gas supply has been depleted so that there's only a pressure of --
A. They talk of 9 bar.
Q. 9 bar.
A. It's empty.
Q. As I understood your earlier evidence, if only one zone was activated, that would have the effect of reducing the pressure in the other --
A. To the same figure.
Q. I see.
A. Because they are all connected back to the same supply point.
Q. The same supply point, yes.
A. Yes.
MR HUTLEY: Q. To take up what you said in answer to his Honour's question, this table indicates, does it not, that over a period of three minutes or thereabouts, the pressure is exhausted; correct?
A. Yes.
Q. What I want to ask you is, isn't that fundamentally at odds with the assumptions that you made at the time of designing the heat exchanger, in respect of, to tell you the area I would like you to concentrate on, the zones not activated--
HIS HONOUR: Could you explain why?
MR HUTLEY: Q. I would like you to make this assumption: assume zone 1 was activated because there was a fire in zone 1.
A. All right.
Q. And the system is activated. Assume the fire spread over the next two and a half minutes later to zone 2.
A. Mmm-hmm.
Q. If this table were to represent the characteristics of the entire heat exchanger at all times, it would necessitate, would it not, that when the fire activates zone 2, two and a half minutes later, the amount of gas which will be available to extinguish zone 2 will be the amount which is left in the cylinders; is that right?
A. You're assuming that all of the - that one bank of cylinders has supplied zone 1 and is supplying the whole of the exchanger, which is not true.
Q. I see. If you had read this would you have assumed there were different banks of cylinders?
A. Yes.
Q. Supplying each --
A. I believe I would have. I may not have. That's the thing, I don't know.
HIS HONOUR: Q. Could you explain why?
A. Well, for the very reason that you're using up all of the gas on one fire and, as he said, the other fires couldn't work - sorry, the other units couldn't work, so there must be more than one lot of gas.
MR HUTLEY: Q. If there's more than one source of gas feeding the several units, they must operate at differential pressures when a fire takes place, must they not, because if there's a fire in some --
A. Are we talking about the system as I saw it, or the system as it is?
Q. The system as you would have seen it had you read this document. You see, what I'm asking you about is had you read this document, just this table, would it have been contrary to the assumptions you made in 1994? I'm not criticising the assumptions you made in 1994 --
HIS HONOUR: Forget about the assertions of statements.
MR HUTLEY: As your Honour pleases.
HIS HONOUR: Put the question, and if I may ask you to remind the witness that you're asking him about his state of mind in 1994.
MR HUTLEY: As your Honour pleases.
Q. I'm asking you about your state of mind in 1994, you appreciate that?
A. Mmm.
Q. What I'm asking you is this: if you read this table and you had the assumptions that you in fact had when you came to design it in 1994, what I'm trying to get you to agree with is that you would have realised that your assumptions had to be wrong; that is, your assumption of constant equal pressurisation of every zone had to be wrong and the reason why it had to be wrong is because it would have been apparent to you that the system was designed that when activated in respect of a given zone, gas would be discharged over a period of time at reducing pressure to the point of exhaustion?
A. Mmm.
Q. Correct. You would have realised that?
A. From a bank of bottles.
Q. From a bank of bottles?
A. So there must have been more banks for the other units.
Q. Quite, but how would the other banks of bottles operate, such that the pressure reduction in respect of the zones to which they related mirrored the pressure reduction in respect of a zone which was activated?
A. That - I don't understand what you mean.
Q. This would have told you, back in 1994, that what was contemplated by this system was that on a fire occurring in respect of any one zone, the gas flow would be activated?
A. Yes.
Q. And it would be activated over a period of time?
A. A short period of time, yes.
Q. And the process of activation would result in gas originally being at a high pressure and, as it was depleted, going down to a low pressure; correct?
A. Yes.
Q. And that would be for a zone which was activated; correct?
A. Zone 1 in this case, yes.
Q. What I'm trying to suggest to is, assume zone 1 and after three minutes the pressure is about 9.5 bar?
A. It's virtually empty.
Q. Correct?
A. Yes.
Q. What would be the pressure, upon your assumptions, in the other zones at that moment?
A. With independent supplies of gas?
Q. Yes?
A. Nil. The pressure in the bottle would be the pressure of the bottle and the pressure in the exchanger would be nil.
Q. Can you tell me how you can conceive of a system which had the characteristic of this system, as disclosed in this page which I've taken you to, would be consistent with your assumed system? Do you see, the problem would be, would it not - I'm sorry?
A. It would be a different system all together.
Q. It would be a different system all together, wouldn't it?
A. Yes.
Q. You would know - and this is going back to 1994 - from reading this document alone --
A. I'd have enough knowledge from this to ask a few more questions.
Q. What would be the questions you would be asking?
A. What's going on? How is the gas supply arranged?
Q. You see --
A. Because it is not really clear. It's there if you delve, but it's not clear.
Q. Could we go back two pages? The reason it is there, is it not, is because there is no way one can conceive of a system which had a characteristic involving the pressure drop described there which could do other than give rise to differential pressures between the zones; that's right, isn't it?
A. If the - yes, if you discharge your quantity of gas from a single source through this, the whole thing will come to a stop.
Q. Quite. That would have been an irrational system, would it not?
A. If you'd let that happen, yes.
Q. Because --
A. It wouldn't be --
Q. It would be irrational, wouldn't it?
A. Mmm.
Q. Because the only way --
HIS HONOUR: I didn't understand that.
MR HUTLEY: Could I take it up, your Honour?
HIS HONOUR: Mr Hutley interrupted you. I think. Could I just read what the transcript reads at the moment. You were asked:
Q. That would have been an irrational system would it not?
A. If you'd let that happen, yes.
Q. Because --
A. It wouldn't be --
Q. -- and you were then stopped. What were you going to say?
A. I was getting confused, actually.
Q. That's what I thought.
A. It's trying to put the 1994 with now.
Q. Exactly.
A. It's two different things.
(T4645:13 - T4658:36)
498 In re-examination, Mr Morrison, I think, put into context the concessions that are now relied upon by Tyco as follows:
Q. You said, "Section 2 clearly says that each gas flow must be kept separate" and then you also said - page 4660, line 33 - "there were four supplies of gas" and at line 46, it says --
A. Can you go back to that last one.
Q. You said at page 4660, at line 33 - I am not asking you to look at that. This is just a transcript reference for the record?
A. Sorry, that's why I couldn't find it.
Q. You are not going to see this. "I would have known that there were four supplies of gas." You said that earlier today?
A. In regard to this page here.
Q. If you had had this page.
A. I think so.
Q. You say, "It says that in writing clearly". Do you remember saying those things?
A. Yes. It says that each flow must be kept separate for the others.
Q. You were saying that as something that would lead you to a conclusion if you had ever been shown this document; is that right?
A. That's how I felt, yes.
Q. I want you to look at the balance of the sentence, after the words "kept separate from the others" and to read these words "and appropriate manifolding of the gas inlet/outlet is required to achieve this"?
A. Yes. I'm --
Q. Do you see that?
A. I'm reading that. Unfortunately, I am now cursed with hindsight, so I sort of read it and see it. I may not have seen it if I had seen it the first time.
Q. Consistently with what you said a moment ago, what does that tell you about whether there is one or more sources of gas?
A. Going back to 1994, and reading "manifolding", I guess I could still manifold that to give one supply in to each of the five or four different nozzles. Mmm, I could. I could. It is not clear. I keep reading it now because I know there are several - four different loads: I know. I didn't know it then.
(T4731:13 - T4732:7)
499 That evidence I think should be read in conjunction with evidence which I have quoted earlier in these reasons and from which I think it should be concluded that the information given to EMAE was misleading in that the Tyco specification, even had it included Part B and/or the Lummus data, did not reveal, nor put EMAE on notice, that the partition plates were required to be full pressure bearing plates.
500 The difficulty that Mr Morrison had in putting himself back in the position that he was in 1994 and ridding himself of the effect of hindsight, I think, was obvious in the evidence I have quoted extensively above and emerged in the other evidence of Mr Morrison as follows:
Q. Did you place any reliance upon that analogy of water-based systems?
A. In what way? I don't follow the question.
Q. Well, you refer in your statement to the fact that you had regard to your knowledge of water-based fire suppression systems?
A. Well, no - my understanding of, yes.
Q. How did that assist you?
A. I was trying to clarify in my own mind, what was happening with this exchanger. What was it doing? Just that it is a strange looking thing, but it clarified that pretty well. The gas came into the channel, it had to come into more than one nozzle, the way they had laid out the bundles, you couldn't have less than three, so therefore, five was a reasonable sort of figure. It was convenient. So I could understand why they had selected five inlets. You had to have five outlets. So it all sort of had a logical sequence to it.
Q. Why, at the end of the day, didn't you take the simple step of asking somebody how it all worked?
A. People were busy; they weren't interested in talking about things.
Q. Did you consider asking people how it worked?
A. No. I think I probably asked Norbert. I would have asked him what it was and he mightn't have known either. It was just a case of just get down and do it to the specification which was set out there on paper - with only that one number that was missing.
Q. And you didn't consider asking --
A. Everything else seemed clear.
Q. You didn't consider asking ABB Lummus --
A. No.
Q. -- how it would operate?
A. No. I didn't normally deal with them. The problem really is that the Tyco specification was pretty poor.
Q. Why do you say that?
A. Well, it didn't answer the question. It left the thing wide open. It didn't tie it down. It is a very critical part and it should have said so straight away.
Q. But you have agreed with me had you received sheet 3 of 8 --
A. It would be much better.
Q. -- you would have known that it was intended to operate as multiple --
A. Even there it is not clearly stated. It still has to be determined by reading and studying it. It is not a clear statement.
Q. Thinking about it --
A. You have got to work it out, yes. It can be misinterpreted.
Q. You wouldn't have misinterpreted it, would you?
A. I don't think so, in the long term.
Q. In 1994?
A. It is not a good document.
(T4719:3 - T4720:19)
501 I have examined, in some detail, the position of Mr Morrison, not for the reason that it exposed any shortcoming on the part of EMAE in carrying out the mechanical design. I am firmly of the view that EMAE bears no responsibility for any deficiency in the design of the Heat Exchanger. The value of examining EMAE's position, however, in the absence of any witness from MEF or Lummus, lies in the fact that it provides the most informative backdrop to examine the role of Tyco and to a lesser extent that of Leighton and NDY in relation to the supply of the Heat Exchanger.
502 That material evidenced a substantial and serious shortcoming in the conduct of Tyco in arranging the design, fabrication and testing of the Heat Exchanger. The consequences of that failure on the part of Tyco are examined later in these reasons when considering the consequences of these findings in terms of the issues raised against each of the litigants in these proceedings.
503 For the moment, I think it is sufficient to observe that the deficiencies in the mechanical design of the Heat Exchanger are to be attributed to the misleading and inadequate content of the Tyco specification, which did not disclose the design intent to have full pressure bearing partition plates in the bonnet chamber and, to the contrary, indicated that the operation of the Heat Exchanger was of a standard type not requiring full pressure bearing partition plates.
504 That was certainly the effect of that portion of the Tyco specification provided to EMAE. I think it is clear from the foregoing reasons that EMAE acted reasonably in accepting the information as provided by Mr Zahradnik in response to Mr Morrison's enquiries. I think that finding is justified whether one takes into account or ignores the urgency imposed upon MEF by Tyco in carrying out the design and fabrication of the Heat Exchanger.
505 I think it is also true that even if the whole of the process specification forming part of part B had been provided to EMAE, it would not have removed the import of the written specification provided to EMAE that the operation of the Heat Exchanger was founded on the conventional concept of the chambers being fully charged at all times and so not requiring full pressure bearing partition plates.
506 One is fortified in those findings when it is recognised that WorkCover, both in approving the mechanical design drawings and in witnessing the hydrostatic testing of the Heat Exchanger clearly did so on the basis that the intended operation of the Heat Exchanger did not call for a design of the bonnet chambers which incorporated full pressure bearing partition plates.
507 That approach in my view was fully justified having regard to the Tyco specification requirements. On the face of it WorkCover, EMAE and, I think, MEF acted on the common understanding that the operation of the Heat Exchanger was conventional, in so far as it envisaged the chambers to be charged with gas whilst in service. It is not an approach explained by coincidence and, in my view, points squarely at the failure of Tyco to properly specify what it required.
508 Given the claimed expertise in relation to heat exchangers expressed on behalf of Tyco during negotiations with Optus, one, I think, is entitled to ask whether Tyco itself even directed its mind to this necessary operation of the Heat Exchanger. There is certainly no indication of it in the adoption by Tyco of a standard type specification for conventional heat exchangers with a scissors and paste approach to the CIG draft supplied by Mr Dunn.
509 Not that it is necessary to one's consideration of this issue, it is nevertheless difficult to dissociate the findings which I have made with the somewhat unwanted status of the Heat Exchanger which was required to be designed, tested, installed and commissioned, wholly at the expense of Tyco and under significant restraint as to time occasioned by the unacceptable delay in 1993 arising out of Tyco's inability to meet temperature specification provisions in the NDY specification.
510 As earlier noted in these reasons, NDY's role in the development of considerations for the Heat Exchanger was extremely limited. I noted that, at the meeting of 6 April 1994 to discuss execution of the Tyco subcontract, NDY was not present, nor was it on the distribution list of the minutes of that meeting, notwithstanding the extensive discussions that took place concerning temperature criteria for the Inergen system and the method by which that could be achieved. That approach towards NDY maybe contrasted with Leighton's request to NDY of 30 March 1994 requesting comments on Tyco's letter of 28 March 1994 concerning "THREADED PIPE FITTINGS".
511 There was a further meeting of 7 April 1994 attended by representatives of Optus, Tyco and Leighton. NDY was neither present nor on the distribution list of the minutes of that meeting which dealt extensively with the implications of including a heat exchanger in the Inergen system. This was the meeting in which Mr Bayley made it clear that the "thought of water being introduced to the risk areas [was] totally abhorrent to Optus".
512 On 14 April 1994, Tyco submitted to Mr Dunn an order for the "WRITING OF SPECIFICATION ON THE HEAT EXCHANGER FOR THE OPTUS INERGEN GAS FLOODING SYSTEM". That resulted in a data sheet being provided by Mr Dunn dated 16 April 1994 described as "APPROXIMATE DESIGN ONLY" and followed a format similar to the Lummus data sheet. Three alternatives were provided.
513 As earlier noted in these reasons Tyco's letter to Leighton of 4 February 1994 was not forwarded by Leighton to NDY until 18 April 1994. That was the letter which contemplated the development of a "detailed specification in collaboration with [Leighton] for the manufacture of a heat exchanger". There was no suggestion that NDY should participate in that "collaboration".
514 I think it is significant in considering Tyco's claims against NDY to note that Tyco looked to Mr Dunn for technical and engineering input in the design requirements of the proposed heat exchanger: a matter that was reinforced by Tyco's facsimile to Lummus of 20 May 1994 with which was forwarded the process specification for the Heat Exchanger and in which Lummus was directed to obtain any clarification of that data from Mr Dunn. The urgency of the matter was emphasised in that facsimile in which "the lead time for the heat exchanger" was described as "vital to our contract". The same facsimile recorded Tyco's adherence to the use of carbon steel instead of stainless steel, presumably for cost saving purposes.
515 By the end of April the Inergen system was being installed. On 20 April 1994 Leighton issued a "NONCONFORMANCE" notice which provided details of "Internal Contamination of pipe work by dust oil from cutting operation…..". Notwithstanding that notice, on 4 May 1994, Optus forwarded a memorandum to Leighton in which it confirmed "advice that upon inspection of the pipe work prepared for installation on 4th May [Optus] found an unacceptable level of dust and reside within the pipe". The conduct of Tyco in relation to the installation prompted Optus' request that Leighton "review [its] Q A procedures and advise as to what measures [were] being taken to ensure that the pipe work [was] clear of grease and dust reside".
516 This material has some bearing on the approach one should adopt to the evidence of Mr Hugh Gilchrist, a retired fitter, who was called in Tyco's case to give evidence of his involvement in the installation of the Heat Exchanger at the Rosebery Centre. He had served five years as an apprentice sheet metal worker in Scotland before coming to Australia in 1954 and commenced employment with Tyco in 1979 as a sprinkler fitter. That involved installation of pipe work for Inergen systems. He had no experience with a heat exchanger. It was his responsibility to ensure that the pipes were cleaned internally prior to installation.
517 He presented as a solid tradesman and gave his evidence directly and without hesitation. However, as appears later in these reasons, in considering his evidence concerning the installation of the Heat Exchanger, I was left with the strong impression that there was a significant element of reconstruction in his evidence. His role in May 1994 in relation to the quality control of pipe installation was explained during cross-examination by counsel for Optus as follows:
Q. At the beginning of the job, wasn't it left on the driveway?
A. The larger pipework would have been left on the driveway. After that, it was left on the driveway to be painted.
Q. Were you aware that the pipework was going to four different zones within the building?
A. Yes.
Q. Do you not recall there was a particular problem with the zone 2 pipework discovered in about May 1994?
A. No, no.
Q. Was there anybody from Tyco, apart from you and your son, of course, who were actually looking at the pipework to check it was clean before it was installed?
A. No, no.
Q. Did you have to fill out any documents at all?
A. Yes.
Q. What kind of documents did you have to fill out?
A. Usually I wrote all the numbers of the pipes down on a sheet of paper, Leighton's contractor countersigned them and took the paperwork away.
Q. What did you have to write on the piece of paper?
A. The number of pipes, the zone they belonged to and the fact they had been cleaned and were ready to be installed.
(T3706:25 - T3707:3)
518 Of the failure in quality control in the installation of the Inergen pipe work in April 1994 Mr McDonald gave the following evidence in cross-examination by counsel for Optus:
Q. You didn't actually have any QA procedures, did you; you were entirely reliant upon Wormalds.
A. We were reliant on Wormalds to have the pipework cleaned. Our - what can I say? We weren't providing a level of checking ourselves of that pipework at that stage.
Q. Apart from issuing the non-conformance report back on 20 April, you hadn't put anything in place to ensure that the pipework would be properly cleaned when installed, prior to 4 May, had you?
A. I was requiring Wormald Fire Systems to clean the pipework and evidence through their QA system that the work had been done.
Q. So you were just relying upon Wormalds still?
A. We were relying on Wormalds. At a stage, and I can't recall what time it was, I made a decision to have one of our people do 100 per cent verification checking, because I was concerned that the information I was getting from Wormald was being questioned by Optus.
Q. Not just being questioned, was inadequate; correct?
A. That's their words, yes.
Q. You thought it was also unacceptable, didn't you?
A. It was. I was faced with this situation: I had Wormald saying to me and producing pieces of paper saying they'd inspected, that it had been tested and cleaned. There's this situation that's brought to my attention that there was belief that it wasn't, so the solution to that was change the process, and we had one of our people do a 100 per cent check on pipework, irrespective of the paperwork, to see that it was in fact clean - double-check it.
Q. In other words, you realised you couldn't rely solely upon Wormalds and whatever pieces of paper they wanted to produce by way of QA documents. You needed to make sure that it was right yourself on behalf of Leightons; correct?
A. Because there was a concern with that part of the QA material, yes. I wouldn't say I wouldn't rely on their QA system. There was a QA system in place. There was concern about it and I acted on that concern.
Q. It had failed, hadn't it?
A. Certain aspects of it had failed, yes.
Q. And so you introduced the system which is embodied in this exhibit tendered yesterday, 1.266A, where Mr Cook, himself, was to be on site and inspect; correct?
A. Yes.
Q. That was an extra fix that you introduced because you were not happy relying upon Wormald; correct?
A. Yes, for that component of the work, yes.
(T2722:7 - T2723:15)
519 Tyco was under pressure from Leighton over delay in proceeding with the design and manufacture of the Heat Exchanger in the weekly site meetings held at this time.
520 There was a curious record of the site works meeting of 27 May 1994 which noted that "the subcontract for the heat exchanger [had] been let to MEF [and that the] mechanical design [was] complete and thermal design [was] being finalised with the manufacturer". Mr McDonald was questioned by counsel for Optus and by counsel for EMAE about that entry and confirmed that Tyco provided that information and was not asked to explain how that information could have been justified given the state of the design as at the 27 May meeting.
521 There was a meeting between Tyco, Lummus and MEF on 31 May 1994 at which specific requirements of the system involving the Heat Exchanger were raised with Tyco. There is no suggestion of involvement by Leighton, or, perhaps more particularly, by NDY in those considerations. That has some significance in Tyco's claims against NDY in that there appears to have been no reliance by Tyco, throughout, on any involvement of NDY in this process of determining upon the need for a heat exchanger and settling its design and fabrication.
522 There was nothing in that record of the meeting with Lummus to indicate that any of the enquiries raised with Tyco concerned the special nature of the operation of this pressure vessel. More particularly, there was no indication that Tyco revealed to Lummus, or MEF that the operation of the pressure vessel was not conventional, in that each zone would not be constantly charged.
523 On 20 June 1994 calculations for the Heat Exchanger were produced by EMAE for MEF. It is a ten page document containing detailed calculations of elements required for the proposed heat exchanger. It was not provided to NDY until, in all probability, 11 July 1994, according to the evidence of Mr Raddatz. That is not suggestive of reliance by Leighton upon NDY's contribution to the mechanical design development of the Heat Exchanger.
524 At a meeting on 10 June 1994, attended by representatives of Tyco and Leighton, Tyco was recorded as informing Leighton that the Heat Exchanger design was "finalised". From other records it is clear that that could not possibly be a correct reflection of the state of the design at that time. The representatives of Tyco at these meetings were Mr Scott and Mr Brink, neither of whom were called.
525 One is left to wonder what Mr Scott's evidence may have been in relation to these matters and, in particular, his understanding of the intended operation of the Heat Exchanger as involving full pressure bearing partition plates: a matter that may have had some bearing on what information would have been provided to MEF, or Lummus and, in turn, EMAE had enquiries been made to Tyco's representative concerning the Heat Exchanger design requirements.
526 On 21 June 1994 Tyco forwarded to Mr Dunn revised thermal data calculations of Lummus for Mr Dunn to check. Again, I think this evidence provided a contrast to the case of Tyco against NDY. There had been a meeting between Lummus and Mr Dunn on 20 June 1994 and the combined effect of that meeting and the calculations submitted on 21 June was the instruction of Tyco to Lummus of 22 June 1994 to proceed on the basis of the revised data, as the "calculations [had] been discussed with Joe Dunn" and were believed to be "satisfactory". It is also instructive to note that Lummus sent its design details to Tyco for the attention of Mr Dunn on 22 June 1994. According to the evidence of Mr Morrison, he did not forward his calculations and drawings for the Heat Exchanger to MEF until 27 June 1994.
527 The EMAE calculations and the EMAE/MEF drawing for the Heat Exchanger, being drawing number 94-1167 revision 0, were forwarded by MEF to WorkCover as part of an application for registration of the design. WorkCover approved that design in terms of its letter to MEF of 3 August 1994 which emphasised the approval as being "subject to compliance with [certain] drawings and conditions", included in which was the abovementioned drawing on which there was noted the requirement that "AFTER HYDROTEST, THROUGLY [sic] DRAIN AND DRY".
528 The circumstances in which the design was so approved was evidenced by Mr Virendra Pal, a Bachelor of Mechanical Engineering who was called in WorkCover's case. He had been employed in 1994 by WorkCover in its Engineering Services Branch - Pressure Systems Unit with responsibilities to advise members of the public in relation to regulatory requirements applying to pressure vessels, to investigate failures in pressure equipment and to approve designs for pressure vessels.
529 He had no specific recollection of the application of MEF nor of registration of the design of the Heat Exchanger. Based on his calculations he was satisfied with the "mechanical integrity of the vessel". He was responsible for the terms of the WorkCover letter of approval of the design. It is clear from his evidence that Mr Pal did not envisage the Heat Exchanger operation as calling for the provision of full pressure bearing partition plates. The role of WorkCover is considered later in these reasons in more detail.
530 On 1 July 1994 the EMAE/MEF drawing of the Heat Exchanger and Mr Morrison's calculations were sent to Leighton by transmittal note which noted that the "ACTION REQUIRED" was "FOR YOUR APPROVAL". It was Mr McDonald's evidence that they were required by Leighton to be "on-forwarded" to NDY.
531 It appeared that MEF proceeded with fabrication before any approval of the drawing was provided by NDY, or for that matter by Leighton.
532 According to Mr Thomas, he relied upon EMAE, Lummus and, presumably MEF, along with Leighton and NDY, in the last mentioned case, to provide "a final check of the work of MEF [Lummus] and EMAE". I have particular difficulty in accepting that evidence, especially given the almost complete absence of NDY from the design process and the conduct of Tyco in proceeding with the manufacture of the Heat Exchanger prior to any notification of any approval by Leighton or by NDY.
533 Moreover I regard that evidence, to the extent that it reflected the attitude of Tyco, as one which abrogated Tyco's responsibilities. I think there is an element of the absurd in suggesting that there was any reliance upon either Leighton or NDY by Tyco. To the extent that there was, in fact, such reliance, I do not regard it as reasonable in the circumstances. Tyco had held itself out as expert in the field of the Inergen system and the use of heat exchangers in connection with fire suppressant systems.
534 On 6 July 1994 Leighton forwarded to NDY Tyco's letter to Leighton of 1 July 1994 in which numerous variation quotations were submitted relating to the system. None of them related to the Heat Exchanger. I think this is another example of specific consultancy services being sought from NDY in relation to the Inergen system, as distinct from the Heat Exchanger, from which NDY, for all practical purposes, had been excluded.
535 The record of discussion of the site works meeting of 8 July 1994 established the progress in the manufacture of the elements of the Heat Exchanger well before any comment on the subject drawing or calculations had been made by Leighton, or NDY. The minutes also recorded Leighton as undertaking "to expedite NDY comment on heat exchanger drawing and calculation". NDY was not present at that meeting and it was not on the distribution list of the minutes of that meeting.
536 That material was forwarded to NDY by Leighton on 11 July 1994. The MEF drawing 94-1167 was the subject of extensive cross-examination, primarily in regard to the notation requiring the thorough draining and drying of the Heat Exchanger after hydrotesting and, second, to establish that the drawing disclosed the absence of full pressure bearing partition plates. This is a matter that will require more detailed consideration later in these reasons in considering the involvement of Tyco, Leighton and NDY in the under-design of the partition plates.
537 So far as reliance is placed by any party upon NDY's approval of this material it is relevant to note that the drawings bore a Norman Disney & Young endorsement in printed form, signed by Mr Raddatz on 20 July 1994, in the following terms:
"This drawing has been viewed only in respect to general arrangement.
Design and system performance remains the responsibility of others [and in manuscript] Wormald Fire Systems."
538 On the EMAE calculations and the Lummus thermal data may be found similar endorsements signed by Mr Raddatz, also dated 20 July 1994. In the case of EMAE's mechanical design calculations, the endorsement was in the following terms:
"This document has been viewed only in respect to general arrangement.
Subject to approval by Authorities.
Design and system performance remains the responsibility of others. Wormald Fire Systems."
539 In the case of the Lummus thermal data, the endorsement read as follows:
"This document has been viewed only in respect to general arrangement.
Design and system performance remains the responsibility of others. Wormald Fire Systems."
540 The drawings bear a number of notations by NDY. Of particular note in the case of drawing number 94-1167 was the following:
"Approval of these items of equipment will be by Work Covers [sic] pressure vessel Depts including design calculation."
541 Other notations on that drawing are in the nature of comments by NDY that I think are consistent with the terms of NDY's endorsement stamp. The same may be said of the notations accompanying the NDY stamp on the Rheem Australia Limited drawing. It is necessary to examine these aspects in more detail as appears later in these reasons. However, I think it is inescapable that the terms of the NDY endorsement clearly put the recipient of the endorsed drawings on notice as to the limited function performed by NDY in considering these drawings and that design and performance were excluded from consideration and remained Tyco's responsibility.
542 Much the same may be said of the endorsements on the calculations and data sheets, respectively, of EMAE and Lummus, with the qualification that the reference to limiting consideration to general arrangement does not appear apposite, unless one views the terms of those stamps as limiting consideration of the calculations so far as they may have any bearing on general arrangement.
543 On 21 July 1994 Tyco (Mr Scott) forwarded to Leighton MEF's ITP (inspection and test plan). Tyco had received it on 8 July. There did not appear to have been any urgency in forwarding it to Leighton. The ITP failed to include as an activity or as a hold point the specification requirement of clause 12.1 of the Tyco specification: the provision for the complete draining and thorough drying of the Heat Exchanger prior to shipment to the Rosebery centre . The circumstances in which it was reviewed by Leighton are examined later in these reasons. The omission of the activity and the failure to include it as a hold point in the ITP was, in my view, a serious mistake.
544 On 26 July 1994 Leighton requested NDY's advice on a request of Optus by letter of that date, for a report on the stability of pressure bottles in the event of fire. The request, I think, may be examined in the context of how Leighton retained NDY's services from time to time in relation to the Inergen system, as distinct from the design, fabrication and commissioning of the Heat Exchanger.
545 Hydrostatic testing of the Heat Exchanger took place on 16 and 18 of August 1994, the first test not being successful. NDY was not advised that fabrication of the Heat Exchanger had been completed, nor of the arrangement for the hydrostatic testing and it was not requested by any party to attend on that testing.
546 The site meetings and communications between the parties in the second half of July 1994 and the first two weeks of August are essentially taken up with programming matters and reflect the pressure to complete placed on Tyco by Leighton and, in turn, upon MEF. One should not be surprised that hydrostatic testing of the Heat Exchanger on 18 August took place, on the back of a truck, preparatory to transport to the Rosebery centre. No explanation has been offered by Tyco for its absence from the hydrostatic testing of the Heat Exchanger, especially after the failure of the hydrostatic test of 16 August: remembering that the Tyco specification called for prior notice to be given to Tyco in order to enable Tyco to conduct internal examination before "final closure" of the Heat Exchanger.
547 If no notice was given by MEF in accordance with the specification requirement, one has to ask why Tyco did not require compliance with that specification requirement and, if notice was given, then there was just no justification, in my view, in Tyco failing to avail itself of the opportunity to inspect and in absenting itself from the hydrostatic testing. That failure was compounded by Tyco's failure in its quality assurance program to ensure that an activity was included in the ITP for complete draining and thorough drying of the Heat Exchanger prior to shipment and failing to make such an activity a hold point in that ITP to ensure compliance with Clause 12.1 of the Tyco specification.
548 As earlier noted, the hydrostatic testing was conducted by WorkCover's William McColl who, in 1994, was a Senior Inspector - Fabrications, in WorkCover's Engineering Services Division. He was a qualified Tradesman Welder. It was he who signed the test certificates. He was called in WorkCover's case to evidence his witnessing of the hydrostatic test and certification of the Heat Exchanger.
549 I think it is fair to observe that in cross-examination it was difficult to extract any concessions from him and, although he gave very positive evidence that the testing took place with the tubes outside the shell, I was less than convinced that Mr McColl had a clear recollection of the tests that were carried out. His evidence is examined more carefully in considering the case made against WorkCover.
550 Mr McColl did not witness the hydrostatic testing on 16 August 1994, that appeared to have been done by another employee of WorkCover. Of the 18 August 1994 testing Mr McColl did not "remember the sequence of events of what [he] actually did on that day" other than that he "followed a fairly usual practice". It is clear from Mr McColl's evidence that that practice involved a principal role by the party requiring the test in setting up the conditions for the testing. The WorkCover inspector's role, primarily, was that of checking the pressure gauge and satisfying himself that it accorded with the test requirements initially imposed by WorkCover. He did not carry out any internal inspection of the Heat Exchanger, nor was he present when any draining or drying of the vessel took place.
551 The Heat Exchanger was delivered on the day of the 18 August 1994 hydrostatic testing. The site works meeting of 19 August 1994, attended by Tyco and Leighton recorded the delivery of the Heat Exchanger as having been effected on 16 August 1994. That record goes on to note that this was "two days late due to non-compliance with Work Cover Pressure Test". I think from that note it is clear that the delivery referred to is 18 August, the two lapsed days being the two days following the failed test of 16 August.
552 There is some irony I think in the fact that when the Heat Exchanger was delivered to the Rosebery centre, Mr Grono and Mr Scott together with Mr Hugh Gilchrist and his son Mr Bruce Gilchrist, were present along with a representative of Leighton, believed to be Mr Cook. I refer to the presence of the Tyco representatives as being ironical when it is remembered that there was no attendance at the hydrostatic testing and presumably no interest in ensuring that the specification requirements for the complete draining and thorough drying of the Heat Exchanger had been effected prior to shipment to the Rosebery centre.
553 I think that the importance to be placed upon the specification requirement does not gain any additional import by resort to hindsight. Variously, Tyco's case has emphasised the obvious nature of the requirement to comply with this specification, at other times treating it as part and parcel of the hydrostatic testing and attributing the importance placed upon its compliance, in this case, to the benefit of hindsight. I am unable to agree.
554 Optus could not have made it clearer to Leighton and Tyco that extreme care had to be employed in relation to the selection of the Inergen process and in its installation, once chosen, because of the highly sensitive nature of the equipment it was designed to protect. Nowhere was that emphasised more than in the threat to the integrity of the equipment which the incidence of moisture presented.
555 The inert gas was selected as one, which, on discharge, did not involve any significant temperature drop associated with condensation. When compliance with temperature provisions of the specification led to consideration of the introduction of a heat exchanger, Optus spelt out to Tyco that the threat of water to the Optus equipment was "totally abhorrent".
556 For its part, Tyco did not regard the Heat Exchanger as necessary, failed in its attempt to share the cost of the Heat Exchanger in negotiations with Optus and incurred substantial delays in the installation of the Inergen system as a consequence of its problems in complying with the specification. These things eventually led to a request for a quotation from MEF of a budget price and to an urgency in settling design and carrying out fabrication of the Heat Exchanger at Tyco's cost.
557 The evidence concerning the installation of the Heat Exchanger at the Rosebery centre was in some important respects unsatisfactory so far as one is able to ascertain what, if any, steps were taken by Tyco to ensure the absence of water or moisture in the Heat Exchanger chambers. Of particular moment I think is the absence from the witness box of Mr Grono and Mr Scott both of whom were present on the day the Heat Exchanger arrived at the Rosebery centre. There has been no satisfactory explanation for their absence from the witness box, although evidence was adduced as to some efforts made to locate Mr Scott: evidence which I think left a considerable amount to be desired if I was to be persuaded to a finding that all reasonable attempts had been made to obtain his evidence.
558 The evidence adduced in Tyco's was that of Mr Hugh Gilchrist. The reliability of that evidence has been challenged, principally by Optus. He was called in Tyco's case to give evidence of the installation of the Inergen pipe work system and of the arrival and installation of the Heat Exchanger. I think it is fair to observe that the clarity of his evidence in chief in statement form was in contrast with what I perceived to be an unclear recollection of events, as evidenced in cross-examination. I was left with the very strong impression that his statement of evidence in chief was the product of hindsight and reconstruction, rather than recollection.
559 The circumstances of the arrival of the Heat Exchanger were described in his evidence in chief as follows:
"8. The heat exchanger was delivered by the transport company, Johnstons' Transport, on the back of one of its semi-trailers. The semi-trailer was a flat top one with no sides nor a back. Johnston's had a special crane which was able to manoeuvre the heat exchanger into the Optus premises at Rosebery. Once the heat exchanger had arrived, it was lifted horizontally off the back of a semi-trailer by the crane and was placed on the ground next to the semi-trailer. The heat exchanger was not tipped in this process. The semi-trailer was then moved out of the way.