Introduction
On 31 August 2020, the Court published its reasons for concluding that the appeal as against the first and second respondents should be allowed in part (the Principal Reasons [1] ). In these proceedings, terms will be used as they were defined in the Principal Reasons.
On 31 August 2020, the Court directed that the Builder and the Insurer, on the one hand, and the Owners Corporation and the Unit Owners, on the other, file and serve further written submissions in relation to the following questions:
(a) the defence of the Builder and the Insurer based on the proportionate liability provisions of the Civil Liability Act 2002 (NSW); and
(b) the costs of the proceedings below and in this Court.
The Court indicated that it would deal with those questions without further oral argument from the parties. The Court has now received the further written submissions on those questions as directed. It is convenient to deal with those two matters separately.
[2]
Proportionate liability
Part 4 of the Civil Liability Act deals with proportionate liability and applies, relevantly, to a claim for economic loss or damage to property in an action for damages, whether in contract, tort or otherwise, arising from a failure to take reasonable care. Such a claim is referred to in the Civil Liability Act as an apportionable claim. In any proceedings involving an apportionable claim, the liability of a defendant who is a concurrent wrongdoer in relation to that claim is limited to an amount reflecting that proportion of the damage or loss claimed that the Court considers just, having regard to the extent of the defendant's responsibility for the damage or the loss. The Court may not give judgment against the concurrent wrongdoer for more than that amount. For the purposes of Pt 4, a concurrent wrongdoer, in relation to a claim, is a person who is one of two or more persons whose acts or omissions, or act or omission, cause, independently of each other or jointly, the damage or loss that is the subject of the claim. [2] In apportioning responsibility between defendants in proceedings, the Court may have regard to the comparative responsibility of any concurrent wrongdoer who is not a party to the proceedings. The relevant provisions apply in proceedings involving an apportionable claim whether or not all concurrent wrongdoers are parties to the proceedings. [3]
The Owners Corporation and the Unit Owners succeeded against the Builder and the Insurer only in respect of Ground 1. By Ground 1, the Owners Corporation and the Unit Owners asserted that the Builder was negligent in directing Pile & Bucket to conduct excavations for the Northern Light Well, which commenced on 20 August 2010. They alleged negligence because the excavation involved removing the earth berm supporting the Retaining Wall, contrary to the advice in Mr Speechley's report of 4 August 2010. They also asserted that the Temporary Retaining Propping was inadequate and made a related submission that the Builder did not comply with the direction from Mr Theunissen that all batters be reinstated without delay in accordance with the recommendations provided in Mr Speechley's report of 4 August 2010. [4]
In the Principal Reasons, this Court found that the Builder was negligent in directing Pile & Bucket to conduct excavations around the Northern Light Well from 20 August 2010 and failing to install adequate temporary propping, contrary to the advice that the Builder had obtained from J&K. [5] The Court concluded that that excavation had a causal connection with the damage to the Building. [6] The Court concluded, therefore, that the primary judge should have found that the Builder was negligent in directing Pile & Bucket to conduct excavations around the Northern Light Well commencing on 20 August 2010, because the excavation involved removing the earth berm supporting the Retaining Wall contrary to the advice in Mr Speechley's report of 4 August 2010. [7] The Court therefore concluded that Ground 1 had been made out, contrary to the conclusion reached by the primary judge in relation to that contention.
In their written submissions to this Court, the Owners Corporation and the Unit Owners contended that, if this Court were to allow the appeal on any grounds, the Builder and the Insurer must persuade the Court, if they wished to establish that someone other than the Builder has a concurrent liability for the damage or loss suffered, of the extent to which the Builder's responsibility is less than 100%. The Builder characterises the question as being one of determining the apportionment of responsibility to the Builder in accordance with s 35 of the Civil Liability Act.
The Builder and the Insurer now contend that there can be no doubt that Northwood was a concurrent wrongdoer in so far as it was responsible for the inadequate design, the need to remove and replace props, the design of the light wells and other failings, such as the failure to account for detailed excavation below RL6.6 m for the pile caps and the lift pits. Indeed, in their original written submissions to this Court in reply, the Owners Corporation and the Unit Owners accepted that the role of Northwood in the project invited the possibility of apportioning some responsibility to Northwood. The question is how much responsibility should be apportioned to Northwood.
In closing submissions before the primary judge, the Owners Corporation and the Unit Owners contended for an apportionment of responsibility to the Builder of 60%, to Northwood of 25% and to Hughes of 15%. In addition, they originally asserted to this Court that it would be just that the Court apportion responsibility to the Builder as to 60% and to Hughes as to 40%. However, the Court dismissed the appeal in so far as it concerned Hughes, concluding that Hughes had no responsibility.
The Builder and the Insurer contend that the Builder's responsibility was minor and should not exceed 5%. They assert that the original contention by the Owners Corporation and the Unit Owners that the Builder's responsibility should be for 60% of the total loss must be presumed to have been based on the assumption that the appeal would succeed on all grounds and on the basis that all alleged breaches of duty by the Builder were established. Therefore, the Builder and the Insurer assert, as a matter of logic, the Owners Corporation and the Unit Owners must accept that a significantly lower proportion of responsibility should be attributed to the Builder.
The Builder and the Insurer contend that the question of the appropriate proportion for the Builder's responsibility must be determined by reference to the totality of the contributions towards the movement of the Retaining Wall and the Shoring Wall, which gave rise to the settlement beneath the Building. They contend that there were multiple factors that contributed to the movement of the foundations and hence the damage to the Building and that the findings by this Court and the unchallenged findings by the primary judge result in the conclusion that the Builder was not responsible for any movement in the Shoring Wall.
Thus, the Builder and the Insurer say:
the Builder was not responsible for any design problems, which were found to have been the responsibility of Northwood or J&K;
the Builder was not responsible for the system of removal and replacement of the props;
the Builder was not responsible for the over-excavation;
the Owners Corporation and the Unit Owners did not press the allegations originally made by them concerning the cutting down of piles in September 2010; and
the Owners Corporation and the Unit Holders did not challenge the finding made by the primary judge that the most significant contribution to the movement of the foundation, and hence the damage to the Building, was Northwood's inadequate design, the system of removal and replacement of props and the lift pit excavation, none of which was the responsibility of the Builder.
The finding of breach by this Court pertains to the movement of the Retaining Wall following the events in August 2010 and the finding of a movement of 7 mm at one point in the monitoring of September 2010. The Builder and the Insurer point to the Joint Report, in which the opinion was expressed that the movement of the Retaining Wall was caused by inadequate propping and movement of the Shoring Wall and that the Builder was responsible for none of those matters. In that regard, they point to the unchallenged finding by the primary judge that the need to remove and replace the props was a product of Northwood's design and that that was significant because all of the Engineers agreed that the removal and replacement of props was a significant cause of the movement in the Shoring Wall, and thus of the Retaining Wall and the foundations under the Building, all of which occurred very shortly before the significant movement detected on 8 November 2010.
The Builder and the Insurer contend that the evidence of the Engineers does not bear directly on the significance of the August excavations. Mr Speechley, in cross-examination, expressed the opinion that the significance of the fact that the October monitoring did not show any additional movement was that there might have been a small amount of movement that was possibly due to some small disturbances that occurred when the parterre gardens were being constructed. He said that there was no more movement after that. The Builder and the Insurer characterise that evidence as being to the effect that the breach found by this Court was of little concern. They assert that, either the significance of the breach and movement was minor compared with the later movement or that Mr Speechley did not understand the significance of the breach and was therefore negligent in his duty as the geotechnical engineer for the project. Mr Mortimer said that the 20 August 2010 excavation may have had a culminating effect. Messrs Shirley, MacLeod and Manning said that they could not conclude that the 20 August 2010 excavation had any impact.
The Builder and the Insurer assert that the excavation on 20 August 2010 was also an inherent part of Northwood's design and, accordingly, not the responsibility of the Builder. Northwood charged the Builder for a site inspection and advice on 24 August 2010, which included "temporary propping of [Retaining Wall]". The primary judge found that J&K's inspection on 8 September 2010 did not detect any inadequacy in the Temporary Retaining Propping. That finding was not challenged on appeal.
The Builder and the Insurer assert that the Builder's responsibility was minor in the totality of the cause of the movement that led to the damage to the Building and pre-dates by a significant period the first report about "concerns with regard to cracking". [8] They assert that there was "globally" approximately 87 mm of combined total movement under the foundations of the Building and that the Builder might have contributed to up to 7 mm of that movement, at a single point, being no more than 8% of the combined total movement. The Builder and the Insurer assert that there were other factors that related to the 7 mm of movement in September 2010 and that it would therefore not be just for the Builder's responsibility to exceed that proportion. Hence, they contend that the Builder's responsibility was minor and should not exceed 5%.
[3]
Liability of the Insurer
Section 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) (the Law Reform Act) relevantly provided that the Insurer was liable to indemnify the Builder with respect to claims such as that brought by the Owners Corporation and the Unit Owners, subject to all terms, conditions and limits of the policy of insurance between the Insurer and the Builder. The Law Reform Act has now been repealed and replaced by the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) (the Third Party Claims Act). On 17 December 2013, leave was granted for the Owners Corporation to proceed against the Insurer pursuant to s 6 of the Law Reform Act and on 16 November 2018, the Unit Owners were granted leave under s 5 of the Third Party Claims Act to bring proceedings against the Insurer under s 4 of the Third Party Claims Act.
Under the policy of insurance between the Insurer and the Builder, the Builder's indemnity is subject to all terms, conditions and limits of that policy, which provided for a deductible of $250,000. It follows that the liability of the Insurer cannot exceed the liability of the Builder, less the sum of $250,000. The Owners Corporation and the Unit Owners accept that the liability of the Insurer to indemnify the Builder is subject to the terms and conditions of the relevant policy of insurance. However, they dispute that the liability of the Insurer is subject to a deductible in the sum of $250,000 and say that the deductible is no more than $10,000. The Insurer accepts that whether the applicable deductible is $250,000 or $10,000 depends on whether the claim against the Builder can be appropriately characterised as arising from the negligence of Pile & Bucket. The Insurer concedes that the findings of the Court characterise the claim that has been upheld against the Builder as being based solely on the negligence of the Builder. Accordingly, the Insurer accepts that a deductible of $10,000 would apply.
[4]
Costs
As indicated in the Principal Reasons, the cost of rectification of the damage caused to the Building will be approximately $5 million, which includes the costs of temporary relocation while remedial work is carried out. The Builder and Insurer made several offers to the Owners Corporation and the Unit Owners prior to the decision of the primary judge. However, in the light of the conclusion reached above, namely, that responsibility for the damage should be apportioned as to 40% to the Builder, the quantum of those offers was well below 40% of the loss and damage suffered by the Owners Corporation and the Unit Owners.
As a general rule, costs should follow the event. However, that rule may be displaced where an appellant has not been entirely successful on appeal. As the Principal Reasons demonstrate, the Owners Corporation and Unit Owners have not been totally successful in this appeal. They failed as against Hughes and succeeded on only one of several complicated grounds as against the Builder and the Insurer. The Builder and the Insurer contend that they should be ordered to pay no more than 15% of the costs of the appeal. The Owners Corporation and the Unit Owners, on the other hand, contend that the appropriate order is that the Builder and the Insurer pay 75% of the costs of the appeal.
The Owners Corporation and the Unit Owners assert that the appeal grounds concerning Hughes were significantly less complex, both factually and legally, than those concerning the Builder and occupied a much smaller proportion of the time taken for the appeal than was taken by the grounds concerning the Builder's responsibility. They assert that no more than 25% of the time taken in the appeal was devoted to grounds concerning Hughes.
The Builder and the Insurer assert that the conduct of the Owners Corporation and the Unit Owners in the appeal inflated the costs, in so far as they failed to serve written submissions in accordance with the timetable directed by the Court and filed submissions in excess of the page limit directed by the Court. In addition, as the Registrar of the Court observed in an email to the parties on 5 February 2020, the written submissions made little attempt to tie the submissions to the grounds of appeal or to formulate arguments by reference to the reasoning of the primary judge.
Ultimately, the Owners Corporation and the Unit Owners were required to file a third version of their contentions in order to clarify the issues for this Court. As indicated in the Principal Reasons, each ground alleged a series of errors on the part of the primary judge in a way that made it almost impossible to identify the precise grounds of appeal relied upon. Accordingly, the Owners Corporation and Unit Owners were directed to provide a more precise note of the grounds of appeal and the Principal Reasons dealt with the grounds of appeal largely as explained in that supplementary note.
Taking a broad brush to the assessment of costs, as the parties have invited the Court to do, the appropriate order in relation to the costs at first instance is that the Builder and the Insurer pay the costs of the Owners Corporation and the Unit Owners incurred between 9 September 2016 and 19 August 2018, being the costs in relation to the reference out. The reference out determined the quantum of the loss occasioned by the damage to the Building. The appropriate order as to the balance of the costs of the proceedings at first instance is that the Builder and the Insurer pay 75% of the costs of the Owners Corporation and the Unit Owners.
The Owners Corporation and the Unit Owners have also asked for orders that the Builder and the Insurer pay the costs that they have been ordered to pay to Hughes. That question requires consideration of whether it was reasonable for the Owners Corporation and the Unit Owners to have brought proceedings against Hughes and whether there was conduct on the part of the Builder or the Insurer that would make it fair to impose liability on them for the cost that they are ordered to pay to Hughes. [11]
The Owners Corporation and the Unit Owners initially commenced proceedings solely against the Builder, by summons filed on 12 June 2013. Following the Builder's nomination of concurrent wrongdoers, the Builder alleged in its defence that Hughes was a concurrent wrongdoer. The Owners Corporation and Unit Owners contend that that required them to maintain against Hughes the allegations that the Builder and the Insurer had made against Hughes. If they had not, they say, any share of responsibility for which Hughes was found liable would not have been recoverable from Hughes by the Owners Corporation and Unit Owners. [12]
It is not insignificant that the Builder was primarily responsible for the construction work that caused the damage to the Building and, therefore, had the greatest knowledge of activities that occurred on the Development Property. The Owners Corporation and the Unit Owners were strangers to the construction, who happened to occupy the adjoining property and who had no direct knowledge of the involvement of Hughes in the construction work.
It is by no means clear that the Owners Corporation and the Unit Owners joined Hughes or that they maintained the claim against Hughes either at first instance or on appeal by reason of the conduct of the Builder and the Insurer. Rather they appear to have made a forensic decision to maintain proceedings against Hughes independently of the conduct of the Builder and the Insurer. Thus, while the assertion by the Builder and the Insurer that the Builder was not liable and that Hughes was may have been the catalyst for the joinder of Hughes, the allegations of concurrent wrongdoing on the part of Hughes that were made by the Builder and the Insurer were of a more general nature and less expansive than the allegations made by the Owners Corporation and the Unit Owners. Further, the Owners Corporation and the Unit Owners made no effort on the hearing of the appeal to demonstrate that the claims that they were advancing against Hughes in the appeal or that the claims that they had advanced against Hughes at first instance were in any way derived from the allegations of concurrent wrongdoing made by the Builder and Insurer. In those circumstances, there are good reasons for concluding that there should be no order against the Builder and the Insurer in respect of the costs that the Owners Corporation and the Unit Owners have been ordered to pay to Hughes.
The appropriate order in relation to the costs of the appeal is that the Builder and the Insurer pay 60% of the costs of the Owners Corporation and the Unit Owners. The reduction from 100% in respect of the costs recognises the time taken with the claims as against Hughes as well as the extent of the lack of success on the part of the Owners Corporation and Unit Owners in their claims in respect of the liability of the Builder.
[5]
Conclusion
The appellants should be directed to bring in, within 14 days from the date of the publication of these reasons, short minutes of orders to give effect to these reasons. If there is any dispute as to the appropriate orders, the parties have leave to apply for the purpose of resolving any dispute.
The Owners Corporation and the Unit Owners settled their claims against Pile & Bucket, J&K and Northwood. There is a question as to the extent to which the terms of those settlements are before the Court. In the absence of a contention that the Owners Corporation and the Unit Owners might be recovering more than their actual loss, the terms of those settlements do not appear to be relevant for the question presently before this Court, namely, the extent to which responsibility for the loss suffered by the Owners Corporation and the Unit Owners, should be apportioned to Northwood. However, liberty to apply should be reserved to the parties in the event that any party contends that it is necessary to take into account the settlement sums received by the Owners Corporation and the Unit Owners.
[6]
Endnotes
See Owners of Strata Plan No 30791 v Southern Cross Constructions (ACT) Pty Ltd (in liq) [2020] NSWCA 199.
See Civil Liability Act 2002 (NSW), s 34.
See Civil Liability Act 2002 (NSW), s 35.
See Principal Reasons at [78]-[80].
See Principal Reasons at [195] and [198].
See Principal Reasons at [276].
See Principal Reasons at [198].
See Principal Reasons at [106]-[109].
See Principal Reasons at [276].
See Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492; [1985] HCA 34 at [10].
See Council of the City of Liverpool v Turano (No 2) [2009] NSWCA 176 at [15].
See Kerr v Australian Executor Trustees (SA) Ltd [2019] NSWSC 1438 at [10]-[11].
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 18 March 2021
upreme Court of New South Wales
Jurisdiction: Equity - Technology and Construction List
Citation: [2019] NSWSC 440 (Substantive); [2019] NSWSC 560 (Costs)
Date of Decision: 16 May 2019
Before: Stevenson J
File Number(s): 2013/179839
The Builder and the Insurer propounded a calculation premised on an assumption that equal movements at different monitoring points, or at the same monitoring point but either horizontal or vertical, have equal causative effects. The Owners Corporation and the Unit Owners assert that that assumption is unjustified. They say that none of the Engineers who reviewed the survey data analysed the data in that manner. Mr Shirley, who was retained on behalf of the Builder, focused on the 21 mm movement at MP04, where the August 2010 excavation was conducted. Mr Shirley described that as the "critical monitoring station".
The Owners Corporation and the Unit Owners dispute that this Court found that the total effect of that excavation was limited to the movement of 7 mm. Thus, Mr Mortimer's evidence that earlier excavation can contribute to later events, with which Mr Alden generally agreed, was supported by the evidence of Mr Broune, regarding the cumulative effect of movement. Mr Alden made comments to similar effect and none of the experts denied that cumulative effect of excavation. The Owners Corporation and the Unit Owners say that the fact that certain of the Engineers were unable to conclude that the Builder's negligent excavation caused damage to the Building is of no moment, having regard to the Court's conclusion that the excavation had a relevant causal connection. [9]
Mr Mortimer said that he thought the position of the excavations was very important and that, if they were, as he assumed, just one at each end of the wall, it was less likely that they had either an immediate impact on the stability of the wall or even a cumulative longer-term impact. The Owners Corporation and the Unit Owners contend that the Court should deduce from that evidence, which was not disputed, that the excavation closer to the Retaining Wall is likely to have had a greater impact on the stability. In that regard, they say, the August 2010 excavation occurred at the Northern Light Well, between the Shoring Wall and the Retaining Wall, where MP04 was located. Not only was that the closest point of construction to the Retaining Wall and the Building, MP04 was also the point that recorded the most overall movement, being 21 mm of horizontal movement and 14 mm of vertical movement from August 2010 to November 2010.
The Owners Corporation and the Unit Owners accept that there were several factors that contributed to the movement of the foundation and hence damage to the Building. They also accept that the findings made by this Court lead to the conclusion that the Builder's negligence did not result in movement of the Shoring Wall as opposed to movement of the Retaining Wall. However, they dispute the assertion by the Builder and the Insurer that the primary judge made an unchallenged finding that the most significant contribution to the movement of the foundation, and hence damage to the Building, was Northwood's inadequate design, the system of removal and replacement of props and the lift pit excavation.
The Builder and the Insurer contend that the contentions of the Owners Corporation and the Unit Owners fail to take account of other activities being undertaken on-site that contributed to the movement of up to 7 mm as recorded in the site monitoring of 8 September 2010. In particular, Pile & Bucket installed the piles for the Shoring Wall between 6 and 19 August 2010. A key feature of the Shoring Wall, as designed by Northwood, was that it was a "passive" support system and both Mr Speechley and Mr Shirley gave uncontradicted evidence that some movement is inherent in a passive support system. Further, those contentions fail to take into account any apportionment of responsibility to Pile & Bucket in undertaking the works.
The Builder and the Insurer also complain that the contentions of the Owners Corporation and the Unit Owners conflate events after 8 September 2010 and focus solely on the movement at point MP04 and ignore the fact that the nature of the design was such that it was always expected that there would be movement of the Shoring Wall and the Retaining Wall. Thus, one of the defective aspects of Northwood's design was the use of a passive system instead of an active system of support that would have minimised the inherent movement. They assert that the Builder cannot be liable for the inherent movement associated with a passive design or for movement caused by the negligence of others.
The Builder and the Insurer reject what they characterise as an attempt to expand the effect of the up to 7 mm of recorded movement that could be attributed to the Builder's negligence. They assert that it is not accurate to say that the breach of duty caused at least 7mm of movement, when 7 mm was the most movement.
The Builder and the Insurer assert that the contentions of the Owners Corporation and the Unit Owners do not take adequate account of the following:
1. The evidence cited of Mr Mortimer is the only geotechnical expert evidence with respect to the submitted "cumulative effect", and there was no finding by the primary judge accepting Mr Mortimer's theory. The other geotechnical expert (Mr Shirley) did not give evidence to that effect. The agreed evidence of the geotechnical experts was that sand moves once and almost immediately. The evidence of Mr Alden and Mr Broune, both of whom are structural engineers, is not relevant as they are relating matters outside their areas of expertise.
2. The "cumulative effect" hypothesised by Mr Mortimer, and commented on by Mr Broune, should not be understood as meaning "exacerbating" when it comes to later recorded movement, but rather means "additional" within the normal meaning of the word "cumulative".
3. The statement of Mr Mortimer relied upon by the Owners Corporation and the Unit Owners has been taken out of context in that it relates to a different alleged breach of duty in relation to preliminary excavations performed on or about 30 July 2010 by Pile & Bucket.
4. Other than the so-called "cumulative effect", there is no evidence to support the conclusion that the 7 mm of movement recorded on 8 September 2010 contributed to later recorded movement. Rather, movement in the Shoring Wall contributed to later recorded movements of the Retaining Wall, for which no liability can be attributed to the Builder.
5. The excavation for which the Builder was found liable was "necessary for the construction of the [N]orthern [L]ight [W]ell capping beam", in that the excavation was an inherent requirement of putting into effect Northwood's design. Further, the temporary propping for which the Builder was liable was the subject of advice from Northwood.
6. J&K's advice of 4 August 2020, which the Builder failed to follow, was also received by Northwood prior to the finalisation by Northwood of its designs on 19 August 2020.
The Builder and the Insurer accept that the damage to the Building was caused by movement under the foundation strata, which was caused by movements in the Shoring Wall and Retaining Wall. However, the Builder breached its duty in only one respect that may have contributed to some movement at an early stage of construction. The Builder and the Insurer assert that none of the following further causes of the movement is attributable to any negligence of the Builder:
1. The fact that there was always going to be movement inherent with any design of the Shoring Wall.
2. The inadequacy of the design of the Shoring Wall, which was exacerbated by the fact that a passive support system was utilised.
3. The failure of Northwood's design to account for excavation below RL 6.6 (for the lift pit, services, etc).
4. The failure by Northwood to account for the size of Pile & Bucket's machinery, which necessitated the removal and replacement of the props.
5. The fact that movement in the Shoring Wall caused movement in the Retaining Wall.
While the Builder and the Insurer asserted that the Owners Corporation and the Unit Owners failed to have regard to the contribution that other parties, such as J&K and Pile & Bucket, may have made to the movement, no specific submissions have been made that Pile & Bucket or J&K should be treated as concurrent wrongdoers for the purposes of reducing the proportion of the Builder's responsibility.
Finally, the Builder and the Insurer assert that, in addition to the matters outlined above, the following matters indicate that the Builder's responsibility was minimal:
1. The Builder was engaged on a construct-only contract and performed its work in accordance with designs and/or advice prepared by two structural engineers (Northwood and Hughes) and one geotechnical engineer (J&K), each of whom was retained by the Developer prior to the retention of the Builder by the Developer.
2. Performing the subject excavation was an inherent requirement of Northwood's design, which had in fact been completed one day prior to the excavation taking place.
The Owners Corporation and the Unit Owners characterise the question before the Court as one of determining the proportion of the damage suffered by them that the Court considers just having regard to the extent of the Builder's responsibility for that damage. That, they say, requires a comparative examination of the whole of the conduct of each concurrent wrongdoer in relation to the circumstances of the damage, including a broad assessment of what is just and equitable according to the respective causative potency of the acts and neglects of the relevant parties. [10]
The Owners Corporation and the Unit Owners accept that their claim is an apportionable claim within the meaning of the Civil Liability Act. Further, they accept that the effect of the findings by this Court is that Northwood was a concurrent wrongdoer within the meaning of the Civil Liability Act. The Owners Corporation and the Unit Owners do not deny that Northwood's design of the Shoring Wall and removal of the steel props were significant contributions to the damage to the Building. This Court found that the damage that occurred as a result of the lift pit excavation was a result of the inadequacy of the design of the Shoring Wall and that Northwood was responsible for the design of the Shoring Wall and the system of removal and replacement of the steel props. Both of those matters were found by the Engineers to be causes of movements of the Shoring Wall, in turn contributing to the movement of the Retaining Wall and, therefore, causes of the movement of the foundations under the Building, causing damage to the Building.
However, this Court found that the Builder was negligent in directing Pile & Bucket to conduct excavation around the Northern Light Well from 20 August 2010. That excavation caused movement at MP04 of up to 7 mm, which is one-third of the total horizontal movement at that point. No other breaches have been identified prior to 8 September 2010, when the movement of 7 mm was recorded. The August 2010 excavation occurred at the Retaining Wall in the vicinity of the Northern Light Well, which is where MP04 was located. Of all the monitoring points, MP04 experienced the largest amount of movement.
Of the breaches found to have caused damage to the Building, the August 2010 excavation was the first in time. The undisputed evidence of the Engineers was that earlier excavations can have a cumulative longer-term impact and therefore the actual movement attributable to the August 2010 excavation was probably greater than 7 mm. The temporary propping on the Retaining Wall at the Northern Light Well, which was the responsibility of the Builder to install, was inadequate. Contrary to J&K's advice on 7 October 2010, the Builder failed to have the temporary propping inspected by 8 November 2010. The Northern Light Well was the closest part of the construction to the Retaining Wall. That, the Owners Corporation and the Unit Owners contend, supports a finding that the August 2010 excavation had a cumulative effect on the movement of the Retaining Wall.
As the contracted builder, the Builder had control of the site during construction and therefore had primary responsibility for ensuring the stability of the site, the Retaining Wall and the Building. It is appropriate, in terms of causation, to consider the primacy of the contracted builder, when determining the Builder's responsibility for the damage to the Building.
The Builder should have followed the advices of J&K, its geotechnical engineer, regarding support for the Retaining Wall, reinstatement of batters without delay and the need for adequate temporary propping, but failed to do so. However, the Builder failed to tell Northwood that it had directed that negligent excavation work be carried out, which destabilised the Retaining Wall, which Northwood could have taken into account when finishing its designs. In all the circumstances, an apportionment of responsibility to the Builder of 40% appropriately recognises Northwood's responsibility with respect to the design of the Shoring Wall and removal of the steel props as well as the Builder's responsibility.