Vella v Paragon Consulting Engineers Pty Ltd
[2015] QDC 135
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- Unreported Judgment
- Vella v Paragon Consulting Engineers Pty Ltd[2015] QDC 135
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Vella v Paragon Consulting Engineers Pty Ltd[2015] QDC 135
Vella v Paragon Consulting Engineers Pty Ltd[2015] QDC 135
DISTRICT COURT OF QUEENSLAND
CITATION: | Vella v Paragon Consulting Engineers P/L & Anor [2015] QDC 135 |
PARTIES: | FAY DELORES VELLA (first plaintiff) and ANTHONY VELLA (second plaintiff) v PARAGON CONSULTING ENGINEERS PTY LTD (ACN 109 991 988) (first defendant) and B L CABASSI, M J CABASSI AND M CABASSI (second defendants) |
FILE NO: | 82/2013 |
DIVISION: | Trial (Commercial List) |
PROCEEDING: | Claim |
ORIGINATING COURT: | Mackay District Registry |
DELIVERED ON: | 29 May 2015 |
DELIVERED AT: | Brisbane |
HEARING DATES: | 30 and 31 March and 28 April 2015 |
JUDGE: | Dorney QC, DCJ |
JUDGMENT AND ORDERS: |
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CATCHWORDS: | Building and engineering contracts – design and construction of access road to subdivision – whether any non-compliance with technical specifications causally related to damage – whether proportionate liability open |
LEGISLATION CITED: | Civil Liability Act 2003 s 30, s 31 |
CASES CITED: | Bellgrove v Eldridge (1954) 90 CLR 613 Jones v Dunkel (1959) 101 CLR 298 Meandarra Aerial Spraying Pty Ltd v GEJ & MA Geldard Pty Ltd [2013] 1 Qd R 319 Rossi v Westbrook & Anor [2013] QCA 102 |
COUNSEL: | A C Barlow for the Plaintiffs S Anderson for the Second Defendants |
SOLICITORS: | BC&A Solicitors for the Plaintiffs Macrossan & Amiet Solicitors for the Second Defendants |
Introduction
- [1]The plaintiffs having settled their claim against the first defendant (which was the designer of an access road on a new sub-division at the Farleigh-Habana Road Crossing, outside Mackay), the remaining part of the proceeding concerns a claim against the second defendants for breach of their contract to construct that access road. Although the pleadings referred to an additional “duty of care”, it was not argued that it was not coextensive with the contractual obligations and nothing has been raised by either party about the extent of damages differing between such causes of action in this case. The second defendants have raised the issue of proportionate liability concerning the role of the designer.
- [2]The construction of the access road was done between early May 2010 and early June 2010 and was a necessary feature of the sub-division of land owned by the second plaintiff, Mr Vella. It is not in contest that the first plaintiff, Mrs Vella, entered into a contract in writing with the first defendant (“Paragon”) on or about 30 November 2009 to design and document operational works in compliance with Decision Notice (DA-2009-287) of the Mackay Regional Council concerning that access road (“Engineering Contract”).
- [3]The Engineering Contract was later varied, such that Paragon agreed to undertake supervision of the construction of the access road and agreed to carry out the administration of the construction of the access road (through its authorised engineer, Mr Long). Its two Tax Invoices record supervision and administration claims covering March 2010 to 30 June 2010.
- [4]Insofar as the second defendants are concerned, they have been, at all material times, partners in a partnership which traded under the name “Mozza’s Dirt Works” and provided road building services for the general public, in and around the Mackay area, for reward.
Background
- [5]The purported contractual arrangements between the plaintiffs and the second defendants were partly agreed and partly disputed. What the second defendants did admit was that there was a contract which was partly written and partly oral (“Construction Contract”) to construct the access road in accordance with Paragon Drawing No. 0657/01/002. That drawing was alleged, by the second defendants, to have been provided to them by Mrs Vella on or about 16 February 2010 and prior to the formation of the Construction Contract. The second defendants expressly denied that they were provided with Paragon’s Construction Drawings entitled “0657/01/001”, “0657/01/003” and “0657/01/004”. In the end, nothing appears to have turned on any dispute about which drawing was, or was not, provided.
- [6]In addition to such construction drawings, there was a technical specification entitled “Boundary Realignment, Lot 2 & 4 Farley-Habana Road, Habana (Lot 2 and 4 on SP 177/138”), dated February 2010, “Revision A”, designed by Paragon, and approved, with changes, by the Mackay Regional Council in or about late March 2010 (Paragon’s “Technical Specification”).
- [7]I accept that while Mrs Vella’s evidence asserted that a bundle of documents [Exhibited as “FDV-3” to her statement (which became Exhibit 1)] was stated to be “the documents provided to (Mr and Mrs Vella) by Paragon Engineering in early February 2010”, many of those documents were not alleged to be part of the Construction Contract. Those documents were then stated to be the same documents that were given to Mr M J Cabassi, on behalf of the second defendants, by Mrs Vella for quoting purposes.
- [8]The evidence of Mrs Vella was to the effect that she did not know exactly what material was in that particular bundle, primarily because she did not read the material. She acknowledged that Mr M J Cabassi took drawings out of it and said that “was all he needed to prepare the quote”. The quote was dated, and provided on or about, 1 March 2010. Mrs Vella’s statement (Exhibit 1) asserted that she “verbally accepted Mozza’s Dirt Works’ quote by telephoning Ms Cabassi, in or about early March 2010”. No evidence significantly contrary to that was given in this trial, Mr M J Cabassi merely, “from memory”, believing it was some two to three weeks after the quote.
- [9]Mrs Vella’s further evidence was that on 19 May 2010 she held a meeting at the access road site at which she gave Mr M J Cabassi what she described as “both booklets” that she had received from Paragon containing “amended documents”. Her statement (in Exhibit 1) identified those documents as “FDV-6”. Among such documents was the same Technical Specification (as earlier identified).
- [10]While the written submissions of the second defendants initially seemed to have suggested that the “parties did not agree to the contract containing the terms of the Technical specifications”, when the same submissions later turned to the second defendants’ “Position”, it was stated that the second defendants accepted “that a term is implied into the contract that it would construct the access road in accordance with Paragon’s Drawings and Technical specification” and “would diligently carry out and comply with the terms and conditions of the Technical specification and Quality Assurance Programme (“QAP”)”.
- [11]Whether implied or not, I would have accepted in any event that it was a term of the Construction Contract, considering that it was Mr M J Cabassi himself who elected to take out the relevant drawings from all the documents proffered to him and who stated that that was all that he needed “to do the quote”. His own evidence conceded that he “quickly looked through the specifications”. The conduct that he engaged in was on behalf of the second defendants.
- [12]Accordingly, what I need to survey is what that conclusion means in determining whether the second defendants complied with their obligations under, in particular, the QAP and, if not, to what legal effect.
QAP
- [13]Since the Quality Assurance Programme (or QAP) became the nub of the argument central to this case, at least insofar as it concerned the way in which it is alleged the second defendants did, or did not, fail to carry out their obligations under the Construction Contract, some attention needs to be paid as to its effect.
- [14]The QAP is contained in Section 6.0 of the Technical Specification. In surveying it, is important to bear in mind that the plaintiffs contended that all parts of Section 6.0 applied, whereas the second defendants contended that only certain of those parts did (being encompassed by the particular contentions that the second defendants: “complied with industry practice;” were directed by Mr Long “as Supervising Engineer”; complied with everything Mr Long “asked”; and did not provide information if Mr Long “didn’t seek it”).
- [15]While the second defendants contended that Sections 6.1.1, 6.1.2, 6.1.5 and 6.1.11 have not been “suggested” as applicable, the most that the evidence showed was there was no evidence that the second defendants did: implement a quality management system; “nominate a suitably qualified Quality Assurance Representative”; subdivide all work under the Construction Contract, including manufacture, site construction and commissioning, “into distinct work lots or work items”, with a “unique identification number … assigned to each work lot or work item” and with “traceability” maintained in all “documented” records; and provide evidence of appropriate quality assurance, including verification, for subcontracted work or for procured items incorporated into the works under the Construction Contract – though, there was no request either shown to have been made by Paragon, as Superintendent, for the same.
- [16]As for Section 6.1.3, there was no evidence led that the Project Quality Plan to be provided to Paragon was ever requested by Paragon to be supplied to it. The same can be said about the Conformance Report, either with respect to each payment claim or at practical completion, pursuant to Section 6.16.
- [17]As for Sections 6.1.4, 6.1.9, 6.1.10, 6.1.12 and 6.1.13, insofar as any evidence was led with respect to those obligations of the second defendants, there was no evidence shown that they were as required by the Supervising Engineer.
- [18]Turning, then, to Section 6.2, the works Supervising Engineer (Mr Long), as Superintendent, did attend for certain inspections and testing. It has not been shown by the plaintiffs what other breaches, if any, of that provision occurred
- [19]Section 6.3, which dealt with “Compliance Verification”, required the second defendants to furnish to the Superintendent: “as constructed” information; a survey drawing; “Lot levels”; levels for roadworks (at subgrade, finished pavement and finished seal levels); levels on stormwater lines; and levels on sewer lines: see sections 6.3.1 to 6.3.5 (inclusive). Again, there is no evidence that Mr Long, on behalf of Paragon, ever requested such things. Section 6.3.6 obligations referable to inspections and approval of works by the Mackay Regional Council, while attaching the responsibility to the second defendants for such things, appeared to have been taken over as responsibilities actually undertaken by Paragon, it being noted that the Mackay Regional Council did give final approval to the works undertaken.
- [20]The final section is Section 6.4 (which deals with testing.) While that provision attached responsibility to the second defendants, the evidence, such as it was, was that the second defendants, through Mr M J Cabassi, complied with all testing which was, from time to time, required by Mr Long (on behalf of Paragon).
- [21]That leaves, then, Sections 6.1.7 to 6.1.8 (inclusive). Yet again, there is no evidence either of any such defaults or of the making of any “stop work order”.
- [22]The problem with most of the plaintiffs’ evidence on this score (even extracted from cross-examination) was that, although the onus was on them to establish relevant breaches, neither Mrs Vella nor Mr Vella knew much about what happened on the ground, day-to-day. Furthermore, although a subpoena was issued to Mr Long, of Paragon, to attend, he was eventually not called by either side of the record. Thus, the statements that Mr M J Cabassi made about his conversations with Mr Long went uncontested and, as with Mrs Vella as well, they gave truthful evidence, even if he at times was somewhat defensive, understandably, in his answers. Additionally, although the expert engineer called on behalf of the plaintiffs, Mr McNichol, asserted many “failures” of Mr M J Cabassi, he did that from his own survey of disclosed and “missing” material, in circumstances where that expert often took the role of being the final arbiter of the facts. In terms, therefore, of accepting one expert’s views over the other, I find that Mr Perkins’ approach was more convincing to me where differences in opinions have emerged, particularly when Mr McNichol was often seen to express himself in terms similar to that appearing in paragraph 5 on page 6 of his report of 20 July 2014. As for the reliance by the plaintiffs on Jones v Dunkel[1], the onus has never been on the second defendants in this case for initial liability, whatever onus they have on proportionate liability should it be necessary to consider it. As surveyed, recently, by the Court of Appeal in Rossi v Westbrook & Anor[2] by reference to early, and recent, relevant authority, the principle is no more than a rule that evidence “has to be weighed according to the circumstances of, as well as the capacity of, a party to adduce it”: at [30]. In a survey of the “sorts of cases” which might attract the general principle, reference was made to cases: which depended on inference, particularly “uncertain inferences”; where there was a question about whether “limited material is an appropriate basis on which to reach a reasonable conclusion”; where “the missing witness would be expected to be called by one party rather than the other”; or where it was known that such “evidence would elucidate a particular matter”: at [33]. Finally, the inferences that are open when the rule applies were cogently stated as: that the untendered evidence would not have helped the party who failed to tender it (entitling “the trier of fact to take that into account in deciding whether to accept any particular evidence which relates to a matter on which the absent witness could have spoken”); that the inference may more confidently be drawn (either against a party not tendering the other evidence or favouring that party’s opponent); and the more ready rejection of inferences proposed by the party not tendering the other evidence: at [35-37].
- [23]In this proceeding, given that the plaintiffs needed to prove relevant breaches, I am disinclined to draw any inferences against the second defendants concerning any failure to comply with the Technical Specification where the plaintiffs had open to them to call Mr Long, of Paragon, about what approach he actually took to his job as both Supervising Engineer and as the relevant Superintendent and about what responses he would have made if specific identified information had been provided to him. To the extent that there was some evidence of the reaction of Mr Long, when Mr M J Cabassi said he told him that the “subgrade was not suitable”, Mr Long’s “response” was that he “was not altering the design”. It is, thus, at the least understandable why Mr M J Cabassi may have thought that it was Mr Long who had to comply with “quality assurance” matters.
- [24]This is particularly important where the expert engineer called by the second defendants, Mr Perkins, gave evidence of local conduct concerning road building contractors to the effect that it was the common conduct, practice, usage or custom in that Mackay region for the relevant supervising engineer to determine which parts of the relevant technical specification were taken as the responsibility of that contractor, because it is a “generic” document “for all manner of projects”. The reason why local conduct, practice, usage or custom is important is that it is obvious, from the 49 pages of the Technical Specification, that for relatively simple works as here, it would be unnecessary, often because of irrelevance, for any commercial contractor to comply with each and every specified term of such a specification and, therefore, what is, in practice, required would bear upon what requirement or response might be possible, or even probable, from a superintendent. As noted by Mr Perkins, the itemisation of works to be done detailed, for subgrade testing, a sum of $200.00 (which in 2009 “probably would have been lucky to get you one compaction test”), inferring that there was no “intention of doing significant CBR testing as part of the construction”.
- [25]Thus, what I conclude to be more productive in this particular case is to analyse the evidence, such as it is, and to apply the expert opinions, such as I accept, in order to determine whether relevant breaches of the Construction Contract have been established on the basis of the failure to exercise reasonable care and skill in carrying out the road construction and, if so, any causative effect of them.
Experts reports
- [26]Exhibit 5 is the Joint Report of the experts. It is dated 27 March 2015. They were dealing with a road which, within 1 month of Council certification, began to break up. The limited extent to which the professional engineering experts agreed was as follows:
- with respect to whether the access road was constructed with insufficient pavement depth, both agreed that the “nominal” depth of 100mm, as described in the drawings, was not met, Mr McNicoll opining that some 60mm to 70mm only was laid and Mr Perkins agreeing with the view that it had “insufficient pavement depth” - but the experts disagreed about the cause, with the former opining that it was a failure to construct in accordance with the contract, whereas the latter was of the view that it was a result of deficiencies with the design and not of the construction; and
- Paragon’s superintendence of the Construction Contract and the Paragon design were both “likely to have contributed to the failure of the access road”.
- [27]Before turning to the individual reports, and the evidence as given at trial, the disagreement, apart from that concerned with the “pleadings”, can be summarised, briefly, as follows:
- as to the workmanship of the second defendants, Mr McNichol was of the opinion that it was likely to have contributed to the failure of the access road, whereas Mr Perkins was of the contrary opinion, opining that that workmanship did not contribute to the “early failure” of that road;
- as to the underspread of pavement material, Mr McNichol was of the opinion that the second defendants contributed to the extent and rate of failure by underspreading, whereas Mr Perkins was of the opposite opinion; and
- as to failing to some lesser extent, if the works had been constructed in accordance with the Construction Contract, Mr McNichol was of the opinion that, had the works been to constructed, the access road “would likely to have failed to a lesser extent” and would “have allowed a more measured and lower cost and maintenance response” rather than any full reconstruction which was required, whereas Mr Perkins was of the opinion that the underspreading of gravel and the absence of any full compliance with the Technical Specification did not contribute to the early failure.
- [28]In order to understand those conclusions further, it is necessary to undertake a brief survey of the evidence about both the subgrade and the underspreading of pavement material.
- [29]Although expressed slightly differently, it was not in dispute between the experts that the subgrade is the material (sometimes called “the natural surface”) on which the base pavement material is placed. The pavement consists of a processed granular quarry, or other natural, material, being sometimes called “the wearing course” and takes on the load of traffic that traverses across the road. Finally that pavement is overlaid with a bituminous material. As succinctly expressed in examination-in-chief by Mr McNichol, the subgrade is the natural material that supports the pavement, the pavement is the wearing course that takes the load from the traffic, and the bitumen layer is the waterproofing layer that prevents ingressive water and the eroding of the surface of the pavement.
- [30]Both experts agreed that there was a subgrade test known as the California Bearing Ratio (or the “CBR” test.) Both agreed that it was a laboratory test undertaken on the subgrade material involving an empirical method of determining its capacity to support, by taking a sample from the subgrade into a laboratory, placing it into a mould and then soaking it for four days. The number that is then derived from that testing process determines the quality of the subgrade as suitable, or not, with a minimum CBR of 8 for embankment material used as subgrade.
- [31]In testing terms, both experts agreed that a measure of the number of commercial vehicles that were anticipated to be travelling on the pavement could be measured by what was called an “ESA” (an acronym for Equivalent Standard Axles).
- [32]Mr McNichol was of the view that the “nominal” pavement depth of 100mm by Paragon in its design was based upon the assumption that, since the original road constructed in 2004 had 150mm of pavement material, such depth was still there at the beginning of these works. As noted, it was not in dispute that the actual pavement depth laid by the defendants was only 60mm to 70mm, which, when given a tolerance level of 15mm, allowed for an “as constructed” level of 85mm.
- [33]Mr McNichol was also of the view that a “gradeline” provided on the drawings was inconsistent with the 100mm pavement overlay. The reason that I am sceptical of any conclusion reached which is reliant on gradeline levels shown in the Drawings has arisen from Paragon’s own disclaimer “that the accuracy of (the survey) levels” of the existing surface in them cannot be “guaranteed”.
- [34]Dealing with the subgrade first, Mr McNichol’s opinion was that:
- the imported fill that the second defendants used for the subgrade was of unknown quality, such that its compliance with Sections 2.2.3 and 2.2.4 of the Technical Specification was unknown;
- there was an unknown amount of such fill, though Mr M J Cabassi gave evidence that the quantity was in excess of 18 truckloads;
- such imported fill was used as subgrade; and
- no information was given, in report form or otherwise, by the second defendants to Mr Long for the purposes of reviewing that subgrade.
- [35]As for testing of that subgrade, there is no evidence that a CBR test was undertaken. While Mr Perkins was of the view that such testing “would have been desirable” and “certainly would have been helpful”, a “hold point” test that was done on 21 May 2010, under the supervision of Mr Long (of Paragon) on the subgrade by “proof rolling” by trucks, was done to Mr Long’s satisfaction. A further proof roll test done on 28 May 2010 was for the pavement, again done to Mr Long’s satisfaction.
- [36]Thus, in the end, the approach of both experts was that it was a significant design fault on Paragon’s part that it had assumed that there was sufficient depth and quality beneath the imported subgrade material used by the defendants to have permitted a technically effective subgrade to be constructed. Later tests demonstrated that the actual CBR varied from 5 to 26 (which Mr Perkins stated was indication that there was considerable variation in the strength of the natural subgrade “which might be expected in terrain of the type encountered at the site”). His view was that strength testing was “normally a minimum requirement when undertaking a pavement design” (emphasis added).
- [37]Moving to the matter of the pavement, while both experts accepted that there was insufficient depth in the pavement as constructed, Mr McNichol was of the view that the pavement was not constructed in accordance with the Construction Contract, whereas Mr Perkins held that it was design deficiency and not causally related the road’s failure. Mr Perkin’s accepted – as I have also – that the pavement material supplied by the defendants met the required DTMR Type 2.2 material standard, yielding a CBR of 80. This reasoning was that the design life of the access road would still have exceeded the 20 year requirement if Paragon’s design assumptions had been correct and that, therefore, a shortfall of 15mm to 25mm in the pavement material laid did not contribute to the early failure of the road. Mr Perkins, in Fig. 12.2 in his further report of 24 March 2015, showed not only how 60mm of pavement material on an existing base of 150mm would have been sufficient even for an underlying subgrade with a CBR of 5 but also how Paragon’s failure to select an appropriate ESA meant that the design was doomed to “failure”.
- [38]One additional agreed aspect of the pavement construction was that the inadequacy of the pavement material depth was particularly concerning at the edges of the constructed road, which, on any approach, did not have any pre-existing pavement material for some 1m to 1.5m for those edges.
Liability of second defendants
- [39]Since it is obvious that there was, in the opinion of both engineering experts, considerable design faults in Paragon’s Drawings, the first concern is whether the failure of the road had a causal relationship with any default by the second defendants in the proper carrying out of the Construction Contract.
- [40]The initial matter for determination is whether the supply of some 60mm to 70mm only of pavement material was due to the fault of the second defendants and, if it was, that its inadequacy (in the context of the agreed inadequate existing pavement material and subgrade) was something within the control of the second defendants, as constructor of the road, such as to make such inadequacy of supply (and not design) causally related to the failure of the road.
- [41]I accept Mr Perkins’ opinion that the deficiency in the pavement depth was not causative of itself, because even if the design depth of 100 mm had been supplied by the second defendants, there still would have been the same failure as that which occurred. In those circumstances, it would be necessary, in order for the plaintiffs to succeed, that they would have to prove that the failure by the second defendants to carry out testing in full accordance with the Technical Specification was a “cause” of the failure of the road, as constructed.
- [42]The real difficulty that the plaintiffs have here is that they have to satisfy the onus on them in circumstances where it is not known to what extent, if any, Paragon, through Mr Long, would have reacted even if such tests had been fully carried out and even if such tests would have revealed concerns about the CBR figures. Where, as here, there are inferences to be drawn, the failure by the plaintiffs to call Mr Long tells against an inference that the carrying out of such testing in the relevant circumstances would have been, first, even countenanced by Mr Long and, secondly, that he would have done something constructive in response. Paragon’s post-contractual request to supply compliance information must then be seen as cynical, especially where even Mr McNichol conceded that, “on the evidence (he) had”, Mr Long did not hold Mr M J Cabassi to the Technical Specification or make a “complaint” to him. This was consistent with Mr M J Cabassi’s own evidence at trial. After all, Mr Long, through Paragon’s appointment by the plaintiffs as both supervisor and administrator, was acting pursuant to their contract for those purposes.
- [43]What is clear from the evidence is that Mr Long, at two distinct “holding points”, administered the carrying out of tests under his supervision which satisfied him both of the quality and construction of the subgrade and the quality and construction of the pavement. In those circumstances, I am not prepared to draw the inference, as the more probable inference among competing inferences, that any failure by the second defendant to comply with the terms of the Technical Specification has been proved to have a causal relationship with the road’s failure.
- [44]It is, moreover, probable that not only was there the design fault agreed between the experts but also there were potential environmental factors that exacerbated the effect of that faulty design (such as higher than expected rainfall), as well as the effects of a failure to maintain the road itself once it started to deteriorate and even the steep grade in the roadway and the predictable heavy traffic on it.
Degrees of responsibility
- [45]Although it is unnecessary to canvass proportionate liability given the conclusion that I have reached, since the matter has been raised, and argued, I will proceed to do that, although noting that any such consideration must bear in mind the findings that I have already made.
- [46]Unsurprisingly, given the positions taken by the different experts, Mr McNichol was of the view that both Paragon and the second defendants should share equal responsibility for failing to deliver both a competent design and a competent construction, even despite his general conclusion that the faulty design would have led to a road failure within 1 to 2 years anyway and where he had made no calculation of the period before total replacement. To the contrary, Mr Perkins was of the view that the share of responsibility, on the second defendants’ part, related only to the quantum and cost of the undersupply of the pavement material - but that has been held to be causally unrelated to the road’s failure and, therefore, could only be a claim for contractual damages for such a cost (which is not part of the pleaded damages).
- [47]Given the conclusions above, the design, being defective in the way that I have identified, would lie not only at the base of responsibility but also be its total responsibility.
- [48]Sections 30 and 31 of the Civil Liability Act 2003 provide the basis of determining, first, who is a concurrent wrongdoer and, secondly, the method of apportioning responsibility of a defendant who is a concurrent wrongdoer.
- [49]As explained by Fraser JA in Meandarra Aerial Spraying Pty Ltd v GEJ & MA Geldard Pty Ltd[3]: a concurrent wrongdoer is one whose acts or omissions cause the claimed damage or loss; and a defendant who asserts that another person is a concurrent wrongdoer must prove: first, the existence of a particular person; secondly, the occurrence of an act or omission by that particular person; and, thirdly, a causal connection between that occurrence and the loss that is the subject of the claim: at [60], quoting cited authority. Furthermore, a defendant who so asserts bears the onus of pleading and proving the elements of the limitation of liability: also at [60], with relevant reference. Fraser JA then went on to hold that proof that an act or omission of a person other than a defendant was “an independent cause” of the claimed loss or damage is necessary: at 347 [61]. Finally, the relevant criterion is not that the defendant is a “concurrent wrongdoer” but rather that the defendant must be a “concurrent wrongdoer in relation to the plaintiff’s apportionable claim” which suggests that the defendant and another person or persons need to be “liable to” the plaintiff “for” the apportionable claim: at 347 [62].
- [50]While the plaintiffs have not contended that the apportionment provisions are inapplicable, they do contend that the second defendants would have not discharged the burden of proof concerning Paragon’s liability or, alternatively, if there were to be liability in both, it is contended that, in accordance with Mr McNichol’s opinion (as an expert engineer), the relevant parties “shared” a “responsibility to deliver a competent design and construct the works in accordance with” the Construct Contract and that, therefore, they are not concurrent wrongdoers. As to the latter, I would have considerable difficulty in accepting it.
- [51]Quite obviously, on the findings that I have made, the only causal fault in this case is the inadequacy of the design of Paragon.
- [52]If I were to be wrong about the sole liability of the first defendant, given the subservient role that the second defendants played in their relationship with the first defendant, and particularly given my finding that it was Mr Long as administrator and supervisor for the plaintiffs who dictated the way in which the second defendants were asked to comply with the obligations cast on them under the Technical Specification, a very significant part of the overall responsibility ought then to be attributed to the first defendant.
Damages
- [53]Again, even though there is no necessity to consider this issue, I will add some remarks in case it is referred to elsewhere.
- [54]The plaintiffs have accepted that the first defendant, Paragon, has paid $47,822.50 for its part in the road’s failure. The plaintiffs submit that $34,912.50 is the balance of their loss in this particular case.
- [55]The total sum is based upon the fact that the plaintiffs’ expert engineer, Mr McNichol, provided a quote for the total reconstruction of the road in the amount of $82,735.00. As the second defendants quite correctly point out though, that quote was for a road different from that designed by the first defendant in that it provided for twice the pavement thickness of the road designed by Paragon. But that particular provision, or allowance, has as its premise a liability that does not flow from a breach of the Construction Contract. That is because the Construction Contract was to be undertaken according to a design that was not chosen by the second defendants and under the administration and supervision of the designer. And that bore upon the contractual price agreed. This is in the context of the opinions of both experts being to the effect that the road, as designed, would have failed in any event, either early, or later.
- [56]What the evidence does not address in any convincing way is, if it were to be found that the second defendants were in breach of the Construction Contract, what their breach caused in the circumstances of this particular case. Necessarily, in the findings that I have made, it would be no loss at all. Hence, it is impossible for me to add anything further to this discussion.
- [57]Were it relevant here, I would accept that the principles outlined in Bellgrove v Eldridge[4] would support the approach that, given the present disintegrated state of the road as it was designed and built according to that design, a complete rebuilding of it would be both reasonable and necessary, though that may well be at the first defendant’s expense.
Outcome
- [58]In light of all the conclusions I have reached, there will be judgment for the second defendants against the plaintiffs.
- [59]As for costs, I will give both parties seven days in which to file, serve, written submissions, if any, on costs.