Movrow arc nov V Mananin | heean a on Ketierd 15 Nov 922 oth MORROW and another vy, MANNING 53 7 . STABKE, DIXON, AND EVATT JJ. ' The respondent employed the appellants as architects te prepare Plans. and specifications for a large building in Sydney and to supervise its erection. During the course of the work differences arose with the Fa econtractcr which were ultimately submitted to arbitration. The arbitra~" tors by their award founc that in addition to an amount of £49,500 al- ready paid to the contractor under the appellants! prozress certificates, there was payable by the respondent to the contractor a valange of £2,606 = 13 - Lid., of which £535-3-24. might be withheld as rotention moneys for a speca fied period. In the arbitration various claims for allowances were submitted by the respondent cn the ground of defective work by the con- i tractor or failure to comply with the specifications, and in arriving at their award these were considered by the arbitrators, who communtegsoa tay the parties to the reference their decision upon each item. The 'respondent however, appears to have been dissatisfied with the condition of the building, and would not pay the architects, the appellants, the unpaid balance of their remuneration, When the appellants sued him in the Supreme | Court of New South Wales for their fees, he filed, as well as a plea of never indebted, pleas by way of cross action alleging that the appellants, as architects, had been negligent in the preparation of plans specifications and bills of quantities and in supervision. The action was tried as a : commercial cause without a jury by Halse Rogers J., who gave judgment fer | the appellants upon the action and cross action. Spon apreal to the Full Court consisting of James, Davidson and Stephen JJ., this judgment upon the cross action was reversed ag to three items of negligence with respect to which the Full Court entered judgment upon the cross action for the sum Of £1,100. The juigment for the appellants upon the claim in the ac- t tion was affirmed, and also uvon other items of negligence in the cross action. From the judgment of the Full Court the arpellants, the architects, now appeal to this Court; the resnondent algo cross appeals in respéct of two of the items in referhoe to which the Full Court upheld the judgment of Halse Regers J. There are thus five matters to be dealt with in respect of which the building owner, the respondent, claims that the architects have been guilty of negligence resulting in damage. ta 1. It is convenient to consider first a claim for the small sum of £40. The specifications contain the requirement that at the level of each Floor a 3 lb. lead damp course should be built in the brick work of the walls. It appears that at the upper floor levels the contractor used 2 1b end not 3 1lb-lead. The amount payable to the contractor was fixed in the certificates and award as if he had used 3 1b. lead throughout, because tthe fact that he had used 2 1b. lead was not discovered until later. It is + said that lead of the lesser gtuge serves the purpose of a damp course as 'well as that of the gauge specified . But the cost or value of the higher gauge is greater. The sum of £40 is the amount whioh should have been de- . dueted from the contract price in respect of all the smaller gauge lead ' used if the fact of ite use had been discovered before tae arbitration. Tais amount, by the judgment of the Full Court, the respondent has recover — ed from the appellants. Halse Rogers J. found that the failure of the archi- tects to discover the use of 2 lb. lead amounted to negligence in super- vision, and this finding has not been challenged. But he was of opinion that the amount over-credited to the contractor had not in fact been paid to him by the respondent and might be deducted from or set aside against the retention moneys which remain in the respondent's hands. The general conditions of the contract provide: : "oy defects shrinkages or other faults which may appear within fifty four .(54) weeks from the completion of the building and arising out of defective or improper materials or workmanship shall upon the direction in writing of the architect and within such reasonable time as shall be specified therein be amended and made good by the builder at his own cost, unless the architect shall decide that he ought to be paid for the same, and in case of default the proprietor may recover from the builder the cost of making good the works." The Specifications contained the following provision: i "Maintenance: For six (6) calendar.months after the issue of final certifi- cate the builders are to be resgonsible for and are to make good all shrink~ ages ease doors sashes etc overhaul all locks fittings and fastenings and uake good any defects that may reveal themselves due to defective workman— ship or materials. The architeots will atftheir discretion retain one per cent (1) of the amount of tke contract for the duration of the maintenance period". | In their award the arbitrators said: "we find that of the above sum...the s of £535-3-2 may be retained by the proprietor as retention money until 5th June 1931". Now the amount of the retention money fixed by the award is 14 of the price smd» named in the contract. The date, 5th June 1931, is ! exactly six months from the date of the award, although it appears to be olro, { { 54 weeks approximately - six days more - from the date when the building | 4b i t ete eR ASSES OA EL ESERIES ~ wag handed over, which, accoriing to the ar nitects. was 16th May 1930. The award seems to mean that the building owner must pay the full sum de- termined,unless under the maintenance clause in the specifications or possibly the clause in the contract, the retention money may be applied for the owner's benefit, and to treat the amged for that as equivalent to the final certificate. In these circumstances, the respondent could not retain the £ho out of the retention money if he were sued by the cogtractor upon the award unless he could establish fraud in the contractor o&% that the deficiency in the gauge of the lead was a defect that before 5th June 1931 revealed itself due to defective materials or that the deduction is authorised by the clause in the general conditions. We cannot assume that the resnondent can establish fraud against the contractor. The provision in the general conditions looks rather to the remedy of defects and faults than to ae compensation, and it needs some direction in writing from the architect "and none has been given. The maintenance clause in the speoificationsis expressed in language not appropriate to the case of a discovery that the contractor has used materials inferior to those specified, although no defect in the building has resulted or is likely to occur. The respondent, therefore, appears to have no direct answer to an action by the contractor upon the award. Possibly he might succeed in a cross action against the contractor for unliquidated damages for breach of contract, Put, as it appears that es a result of the architects' default, he has incurred a direct liability to the contractor of an amount greater by £40 than wasp proper, the burden is upon the architects of disnlacing their prima facie liability te recoup him this amount by way of damases, and this burden is not discharged by suggesting the existence of a collateral remedy against the contractor of a controversial nature. It follows that the Full Court wereiright in reversing the judgment of the learned nrimery Judge unon this item, 2. The Full Court awarded £600 damages against the appellants for failure in due care to see that the conerste floor was provided with a ped of rubble filling laid uron the excavated surface of the ground. The site of the building had been excavated before it was put into the control of the contractor. The building went much below the ground level and in- cluded a basement. The floor of the basement was specified as 3 inches J 1 Aa eae remsemessi 2! of concrete with a layer of bitumen or Seysul asphelte 3/4ths of an inch thick and a layer of 2 inches of metal topping finished with red oxide. Under this floor a number cf weeping Brains of porpus pipe were provided to carxy away soakage. The specificetionsclearly required that where these Grains were laid beneath the floor they should -be filled over with rubble. But it appears that the member of tee oor tient firm whe was resgonsible for the specifications intended todand considered that he had specified a rubble filling as the bed of the whole flocr of the base- ment. Expressions occur in the specifications which sugcest that the drafteman probably intended to specify a rubble bed, but they contain nothing definitely requiring it, and the plans do not indicate it, elthough according to some oral testimony, the bill of quantities Ancluées the necesa@ary rubble. The Full Court were of opinion that the specifications did + call for a rubble bed. Halse Rogers J. was of opinion that they failed to do so, and in the arbitration between the reapondent and the contractor the arbitrators held that they did not require the contrector to lay @ bed of rubble for the floor. Upon this question of construction we find ourselves in agreement with Halse Rogers J. and the Arbitrators. The truth aprears to be that the draftsman of the snecifications omitted to include-in them, as he intended to do, an express provision requiring such a bed, but in one or two other parts cf the specifications employed language upon the assump- tion that such a provision had in fact been waite, Although a critical reader of the specifications might suspect or believe that some error had been made and might reasonably conjecture that the errer consisted of the omissior of a clause specifying rubble, the references to be found in the specifications are in our opinion insufficient to supply the omission. An intenticn te require rubble cannot be spelt out of the documents them— selves with enouch clearness to call upon a contractor to provide it. Evidence was directed to the questior whether a rubble bed was in fact a necessary or desirable part of the design of the basement floor. From this evidence we gather that it is . proper practice to specify such a ved for a concrete floor in such circwrstances unless the erchitect is assured of the suitability and shfficiency of the surface vpon which the floor would otherwise be laid. It further appears that if rubble is 80 specified, a demp proof course in the floor is often omitted. In the B wt present case the excavated surface consisted of clay end sandstone and there wag much conflicting evidence tren the question of its wetness and as to the manner in which water would percolate into the porous pipes an as to other matters affecting its suitability. It is not easy to say what part of this evidenoe the learned primary Judge thought religable , and some of it amounted only to speculative arguments from probabilities. But probably all that can be said is that a wise precaution usually taken to guard against dangers which cannot be estimated satisfactorily in advance has been omitted, and that an accurate estimate of these dangers is no easier when the surface is concealed @#em by the floor itself. It was not until after the concrete had been put down that the architect discovered that his intention of having a rubble bed had not been carried out. The Seysul asphalte had not been laid and the exnense of reotefying the error was not then so great as it is now. But it was greater than the cost would originally have been of including rubble. Indeed, the additional cost of the rubble if put down first would have been only £53. The architect dis~ covered also that a proper rubble filling had not been laid cver-the porous drains. He at once called vron the contractor to lay rubble under the floor everywhere, but the contractor disputed that the specifications called for rubble. He required an arbitration, and proposed that one or other of the following courses should be adopted: . (1) that he would prooced to complete the floor, giving a guarantee to pay assessed damages if in the arbitration the contract should be inter- preted as calling for a rubble bed; (ii) that he should, under the architects' direction, cut up the coherete slab then laid, put in the rubble, and lay the floor complete, the responds ent agreeing, if the contract should be interpreted against the respondent, to pey the cest of doing so as an extra. The architects on behalf of the respondent chose the firat alternetive and the floor was completed without rubble. The resnondent evbwitted his claim against the contrector under this arrangement in the eral arbitration uron the completion of the work, and, except for the rubble immediately ever the drains, in respect of which £117 was awarded, the claim failed because of the interpretation of the specifications adépted by the arbitra- tors. In the present action against the architects, the apoellante, the respondent presents his claim to damages upon an alternative. He says that tee ttn mameA SEO a RRA ECS if rubble was not called for by the specifications, the omission arose from want of jue care in the preparation of the plens end specifications, and if it was called for by the specifications, the feilure of the con- tractor to supply it occurred through a want cf due care in sunervision . Halse Rogers J. in some measure adopted the first alternative. He did not find that to design such a concrete floor without a rubble bed was te adopt a negligent form of construction, but he considered that when the architects had formed an intention of requiring a rubble bed, the failure so to draw the specifications as te call for it amounted to negligence. He found, however, that the respondent had suffered no dam- age, or no demage beyond that allowed for in the aum awarded against the contractor by the arbitrators. This finding was baséd upon the con- clusion that in the result a good and sufficient floor had been provic- ed end that it was netther necessary at present nor likely to become necessary to take up the floor and put down a rubble bed. The Full Court alopted the second alternative, and awarded £600 against the appellants? as the estimated cost of rectifying the defect after deducting £53, the additional cost of putting in rubble in the first instance. Their Honour s covsidered that, notwithstanding the finding of the learned primary Judge, the floor was unsatisfactory; because they were satisfied upon the evicence that it admitted damp from the subsoil. The evidence uson the question whether it did in fact admit damp was fully discussed be- fore us, and we are of opinion that the finding that it did net do so, which the judgment of Halse Rozers J, clearly implies, oucht not to have been disturbed. Trere is no reason te suppose that he did not take into account all the evidence relied unon by the Full Court, including an experinient to which their Honours attached much weight. Te ourselves de not find thet experiment so convincing, and we think that Helse Rogers J., who not only heard end saw the witnesses but viewed te premises, waa in a better position than en apnellate Court can be to form an opinion uyon this question of fact. But we think thet there was a -fail- ure of cue care on the part of the anvellants in preraring the plans «x and specifications in such a way that rubble was not called for, and in not discovering earlier by supervision that the contractor was not putting down a rubble bed. But we are of opinion that on the one hand the finding of the Full Court that the present condition of the floor a RAR Ae Oe RCN NR RAINE EEE EINE SNES SERNA : w called for remedy should not be supoorted, and on the other, .hand the finding of Halse Rogers J. in favour of its comphete sufficiency goes too far. We accept his finding to this extent namely that the floor is apparently good and sound and that there is no praesent reason for taking it up and ne immediate likelihood of it becoming necessary or desirable to do so. But the very purpose of requiring rubble is to cive a greater degree of security against the action of water and possible failures of the weeping drains adequately to perform their function. The evidence does not show that all reasonable apprehension unon these matters is excluded. The resnondent's position is that he has less security than he ought against possible difficulties which may or may not have tecome actual. The seourity is not so diminished that a reasonable man would now set about obtaining it by a costly alteration of the floor. He would do nothing unless and until the floor actually fails in some way. But at the same time, can it be said that for this reason a building omer who was entitled to the exclusion or reduction of this risk ig entitled only to nominal damages? The situation is,we think, one which calls for the as-— sessment of damaces for exposure to mischance. Such en assessment must necessarily be attended with difficult¥ . and be not made as a matter of calculation but almost as an exercise 6f discretion. On the whole, we think that the resnondent should receive £100 damazes upon thie item of negligemce. 3. The Full Court avarded to the resnondent a further sum of £460 ag damases for negligence on the part of the erpellants in the supervision of the work of rendering the external face of the southern wall in cement. The damages were calculated as the estimated cost of painting the southern wall in order to give a protection against weather which the cement ren— dering had, in the opinion cf the Court, feiled to give completely. An expert witness of experience called by the respondent upon being asked: "What sort of a job ig the external rendering in the building?" answered — "As far as thickness goes, it is slightly under usual, nothing very "serious; it appears to be a weak mixture roughly put on". The specifica— tions required a mixture of five parts of sand to two of cement gauged with toxicement in the proportion of 3 lbs. to one bag cf cement, and they called for a rendering full 5/8ths of an inch thick. The atatement of ehhe accounts and demands put before the erbitrators propared by the architects contained a olaim for damages for xork not carried cut to the specifica-— tions in resnect of external rendering. In forwarding this document to the solicitors for the respondent, the appellants wrote: "As regards the thickness of cement rendering, we have carefully measurea gaue at twenty two (22) positions on the various walls, and find that the thickness varies from 7/16ths" in three (3) places to 3/4ths" in three (3) places, other measurements being averaged in between these two thick- nesses. We must point out that from a practical point of view it is ® im- possible to obtain a uniform thickness throughout , as the bricks them- selves vary in size. The sketch in the margin will indicate the thickness~ es referred' to herein. We are of opinion that as far as practicable the specified thickness has been provided, and accordingly we do not advise any action in this connection", The arbitrators appear to have considered that the contractor had made some saving in cement, for upon the claim relating to the external ren- dering they allowed against hiv the sum of £14. The award was dated 5th November 1930. In the following March wet weather patches of damp appear- ed through the southern wall. In July much more water shewed. Possibly this might have been treeted as a defect to be made cood cut of the re- tention moneys. But apparently this was not done and the architects have now been saddled with a liability for the cost of remedying it. Much evidence vas given in relation to the thickness cf the rendering upon the wall and as to the probable nature of the mixture. On the whole, the evidence tended to shew that cwing to unevenness in the surface of the wall, the thickness of the rendering varied in different places and.» upon the average was somewdat under the requirement of the specifica— tions. Some seven samples were taken from the southern wall, and an analy - sis was. wade of them in the regate. The result was said to shew a_weak - er mixture than thet snecified. But evidence was given on tue part of the appellents that a proper practice was puraued by the plasterer to obtain the due thickress, and that their clerk of works had irsisted that some of the work should be done twice. Evidence was also ce ven of some guper- vision and, check cf the mixi to be of the cement. Further, the inference otherwise/drawn from the analysed samples was weakened by an annarent incongruity between snother analysis, that of the mortar, and the con- \o dition and quality of the mortar revealed by inspection. Explanations were offered of the failure of the wall to exclude the water, Witnesses said that until a walltwas painted it would not exclude water eltogether in very heavy driving rain . The specifications had provided for a coating of lime and oil to make the wall quite water procf, at any rate until painted, but with the concurrence of the respondent this provision hed bevn excised iH to reduce expense, Again, it was said that slight cracks in the wall of such a building inevitably ocourred at the beams or girders and these 30° were resyonsible . Upon the whole evidence, Halee Rogers cd. was not satis— i fied that the architects had been guilty of any n@tigence resultine in we admission of water. He found definitely that there was ho negligence in respect of the nature of the mixture. The letter finding the Full Court felt unable +6 interfere with, but their Herours cénsidered that negli- gence in supervising the thickness ef the rendering was made out. Although the simple fact that water did gain admission in substantial quantities through the wall built uhder the direction of the appellants cannot but impress us , on the whole of the evidence we think there is no sufficient round for disturbing the finding of the primary Judge. The matter 'Largely turned unon his opinion of the accuracy of the witnesses, and also upon the impression which an inspection of the premises produced. The de~ gree to which the average thickness of the rendering fell below that speci - fied was very difficult to estimate, and in eny case the deficiency could not be a matter obvious to the most experienced eye. Some failure in the exercise of thdoare and skill reasonably required must positively appear, and we do not think that the refusal of Halse Rogers J. to infer it from the circumstances can be held erroneous. For these reasons we think" the award of damages ty the Full Court upon this item should be reversed. i \, By a cross appeal the respondent etebme complains that the Full Court should have awarded him damages against the architects in respect of a deficiency of cement content in the cement mortar. This question de- pended in the main upon analyses of samples. The finding of the primary Judge was against the claim, and this was upheld ty the Full Court. fe think it depended altogether on inferences from evidence which he was in a much better position to deal with than an appellate Court, and we are of opinion that his finding should not be disturbed. 2S 5. Lastly, @ similar question is raised by the cross appeal in Tespect of the cement content of the internal rendering and the conorete floors. We think the same reasona lead to the failure of this part of the cross appeal also. The appeal is allowed. Tae judgment of the Full Court is discharged. In lieu thereof it is ordered that the judgment of Halse Rogers J. on the cross action be eet aside and that in its place judgment be entered for the defendant res— pondent for the sum of £140. sc And it is ordered that the respondent, the defendant, pay the plain - tiffs, the appellants, their costs of the action and cross action, except the costs of the findings raised by the cross action in respect of the base-, ment floor and the deficiency of the gauge of lead in the damp course in the walle; and that the coste of these findings be paid by the plaintiffs appellants. And that the respondent pay the eee+ appellants their costs of the appeal to thie Court. No costs of the appeal to the Full Court from the judgment of Halse Rogers J. Costs to be set off. ay