State of Tasmania v Leighton Contractors Pty Ltd

State of Tasmania v Leighton Contractors Pty Ltd - [2004] TASSC 132 - TASSC 2004 case summary — Zoe

[663]

140 Leighton commenced work on the area of the highway in front of Hagley House on or about 9 February 2000 and began construction of the road in that vicinity in April 2000. On 17 May 2000 Mr Cantillon was contacted by the owner of Hagley House, Mr Errol Minahan, by telephone regarding the vertical alignment of the highway opposite his home. Mr Minahan and his neighbour Mr Gibson were most concerned that the alignment would now appear to be on fill and not in cut. Mr Cantillon claims that this was the first knowledge he had of any proposal by Leighton to depart from its tender concept and to construct the highway in front of Hagley House on fill. He claimed also not to have been aware of any promise previously made to Mr Minahan by Mr Eckersley-Maslin for the road to be in cut. I accept that he was unaware of that promise. Mr Cantillon sent an urgent facsimile on 17 May 2000 to Mr Wade and a copy to Mr Holland[159]. In it he referred to DIER's Concept Plan which went to tender showing the road in cut, to the EMP within the DPEMP, to cl 24.1 with its aim of avoiding adverse impact on the environment, to the management requirement at C5 of the EMP with its objective of minimising visual impact on the road works upon the Hagley Mill complex and rural residential properties in proximity to the route, to the fact that Hagley House was within the Hagley Mill cultural landscape and to Leighton's Tender Concept Drawings which also showed the road in cut. He also pointed out that the Deed required the Contractor to carry out itss activities as per the Environmental Documents (cl 2.4), required the Contractor to warrant that the design and construction of the project works would be as per the Deed (cl 4.1(e)) and stated that the Principal and the Contractor agreed that the Principal's drawing review was solely for the purpose of monitoring the performance of the Contractor and that the Principal's Representative owed no duty of care to review the design for errors, omissions or compliance with the requirement of the Deed (cl 4.1(i)). He also referred to the SOWTC claiming that that confirmed that the vertical alignment was to be such that it complied with all requirements of the Deed and did not vary significantly from the Contractor's concept at award (cl 5.6.1). He concluded[160]:

[820]

171 This solution, including the 1.2 metre earth mound, was accepted by Messrs Minahan, Jamieson and Corney and signed off by them on a letter prepared by Mr Cantillon and sent to each of them on 8 November 2000. Whilst Mr Corney was content that the lowering of the road 2.2 metres below the top of the mound, level with the railway line, was a reasonable solution screening up to 90% of the road traffic from the vision of those at Hagley House, he expressed the view that the ultimate solution of lowering it a further 0.5 metres by way of cut "was the right solution"[196]. I do not take this to mean that the heritage requirements of the project could only be met by lowering the road by 1.5 metres below NSL and that they could not have been achieved with a cut of 1 metre as originally suggested by DIER with the proviso that an earth mound on the southern side of the highway be raised 0.5 metres above the railway line. It seems clear that Mr Corney's objection to that proposal was confined to the visual obstruction this would cause to the railway formation and that he had no difficulty with a cut of 1 metre per se. There was never any suggestion that viewed from the north, a cut of 1 metre would be unsatisfactory, nor even that any kind of mounding was necessary on the northern side of the highway to protect the heritage value of the landscape viewed from St Mary's Church or other points north of the highway. Deepening the road a further 0.5 metres would make no difference to the observation from Hagley House of 85% - 90% of the traffic which was, in any event, effectively screened by the cut of 1 metre. I am satisfied that the THC neither would, nor could, validly have taken any action against Leighton or stopped the project had the cut been confined to 1 metre below NSL. Leighton's apparent acquiescence in the solution accepted by the landowners and embodied in the letters of 8 November 2000 did not constitute an acknowledgement that heritage values could only be preserved by adopting that solution. Leighton's position remained the same as it had always been: it regarded that course, if it was directed to do it, as a Change for which it should be paid.

[907]

190 When, on 29 January 2000 Leighton submitted its final Design Documentation (Submission No 15), it acknowledged that the Final Design Report did not contain information in respect of a number of elements for which design was not then complete. These included landscaping, signs and line marking and street lighting. A final landscape report was not submitted until June 2000. Prima facie then the requirement for each design component in cl 4.2(c) was not satisfied in respect of components (v), (vi) and (viii). Leighton seeks to justify these omissions on the basis that they were not then relevant within the meaning of cl 4.2(b). While it is arguable that signs, line marking and street lighting may not have then been relevant in the sense that their design may not have impacted on other design components but rather have followed them, the same cannot be said of landscaping. This was a crucial aspect of the other components of the design, as is evidenced by the obligation in SOWTC cl 5.18.1[229] to include landscape design architects in the design team from the concept stage and to develop design solutions which were integrated into a cohesive landscape design consistent with the concepts in the Environmental Documents and the Contractor's Concept Landscape Design, as set out in Appendix T5 (see par180 (supra)). Leighton's consultant, Ms Barwick, did not participate in the development of the geometric design, but developed a landscape plan based on the design submitted in January 2000. No verification of a landscape or environmental component was included in Hyder's Schedule 12 Certificate submitted on 17 January 2000 or in that of 13 March 2000; nor was its omission excused by the Principal's Representatives acceptance in principle of conditional Schedule 12 certification (see par135 (supra)). Furthermore, Leighton did not provide Hyder with a copy of the DPEMP, so the latter was not in a position to provide proper verification that the environmental requirements of the Deed had been complied with.

[909]

192 True it is that SOWTC cl 5.8 dealing with Durability commences in sub-cl 5.8.1[234], which is headed "General", with the words "(a) Durability standards and guidelines for the various materials and components used in all steel, concrete and masonry structures must be in accordance with the Design and Specification Reference Documents and, in particular, the AUSTROADS Bridge Design Code and amendments, with the following additional requirements:" (all of which related to such structures and are not readily seen as being addressed to roadworks as such). It is also true that Leighton, in correspondence and in its project plans in respect of durability, focused on structures, while the first record of any request from Pitt & Sherry that Leighton produce a durability assessment report for the earthworks of the main carriageway is to be found in the minutes of a Durability Meeting held on 18 April 2000[235] which was attended by Leighton's Design Verifier Durability, Mr Frank Collins. The latter was unable to give evidence due to a family misfortune, but his statement was tendered as an exhibit by Leighton, without objection in the circumstances from the plaintiff. In his statement, he said that he had attended a meeting with DIER representatives at Leighton's Melbourne office on 31 May 1999 and that it was his "understanding of the requirements of the durability verification required at that stage was that it was confined to the durability of the concrete in the structures (bridges and culverts). There was no mention of non-structural items such as roadworks, earthworks, drainage, lighting, etc."[236] Nevertheless, although this was his understanding and the expectation of Leighton's officers, the matter is to be tested by a reference to the requirements of the contract, and in my view the wording of cl 4.2 of the Deed is not to be read as confining durability verification to structures, nor is there anything in SOWTC cl 5.8 which is inconsistent with a requirement to verify the durability of all components with specified design lives. To the extent that there is any such inconsistency, the former takes precedence in any event[237].

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Judgment (1505 paragraphs)

State of Tasmania v Leighton Contractors Pty Ltd (No 3) [2004] TASSC 132 (16 November 2004)

State of Tasmania v Leighton Contractors Pty Ltd (No 3) [2004] TASSC 132 (16 November 2004)

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