New South Wales Court of Appeal CITATION : Port Stephens Council v Field [2004] NSWCA 226 HEARING DATE(S) : 2 July 2004 JUDGMENT DATE : 12 July 2004 JUDGMENT OF : Giles JA at 1; Tobias JA at 2; Levine J at 59 DECISION : (a) Appeal allowed; (b) Set aside the judgment and orders of J C Gibson DCJ made on 22 August 2003 and in lieu thereof enter judgment for the appellant; (c) Order that the respondent pay the appellant's costs of the proceedings at first instance and of the appeal but that in respect of the latter, she is to have a certificate under the Suitors' Fund Act 1951 if otherwise qualified CATCHWORDS : TORTS - Negligence - Negligent construction - Stormwater pipes - Hole in ground above pipes - EVIDENCE - Balance of probabilities - Onus of proof - Inadequate evidence to make out case LEGISLATION CITED : No legislation cited CASES CITED : Makita Australia Pty Limited v Sprowles (2001) 52 NSWLR 705 PARTIES : Port Stephens Council Jennifer Jane McKinlay Field FILE NUMBER(S) : CA 40838/03 COUNSEL : A: S Harben SC / S Glascott R: C Hoeben SC / D Dooley SOLICITORS : A: Phillips Fox, Sydney R: Marshall & Partners, Raymond Terrace LOWER COURT District Court JURISDICTION : LOWER COURT DC 118/01 FILE NUMBER(S) : LOWER COURT J C Gibson DCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40838/03 DC 118/01 GILES JA TOBIAS JA LEVINE J Monday 12 July 2004 PORT STEPHENS COUNCIL v JENNIFER JANE McKINLAY FIELD Judgment 1 GILES JA: I agree with Tobias JA. 2 TOBIAS JA: On 4 December 1998 the respondent, Ms Jennifer Field, lived in Nelson Bay within the appellant's municipality. On the morning of that day she parked her motor vehicle on the eastern side of Stockton Street, Nelson Bay and crossed the road with the intention of proceeding south along the concrete footpath on the western side of Stockton Street. As she was crossing the grassed nature strip between the kerb and the footpath, and just before she reached the latter, the ground under her left foot collapsed and her left leg went into a hole to just above her knee. She was thrown forward and struck her right knee on the concrete footpath sustaining a medial cartilage injury to the knee and grazing to her left leg and both arms. 3 By statement of claim filed on 16 July 2001, the respondent instituted proceedings against the appellant claiming damages arising out of the appellant's alleged negligence. Some 11 allegations of negligence were particularised but the trial was conducted on the basis that the appellant's alleged negligence was confined to its construction of a stormwater drainage pit and associated pipes located generally beneath the hole into which the respondent fell. 4 The proceedings were heard by J C Gibson DCJ who, on 22 August 2003, found the appellant negligent as alleged and entered judgment in favour of the respondent in the sum of $285,376.80. It is against this judgment that the appellant appeals to this Court. The facts 5 In 1981 the appellant constructed a stormwater drainage system within the immediate area. It would appear that, relevantly, two drainage lines were constructed across Stockton Street which entered a cast in situ concrete pit or chamber (the pit) which was located beneath the grass verge to the concrete footpath on the western side of Stockton Street on a north-south alignment. The evidence established that the pit was 2.5m in length, 1m high and 1m wide. Approximately one third of the structure was located under the gravel driveway of No. 106 Stockton Street. 6 The floor of the pit was 3.2m below the surface of the nature strip. Access was via a shaft constructed using a precast round pipe at the southern end of the pit. A concrete lid that stood proud of the surface covered the access shaft. Two parallel outlet pipes 900mm in diameter led from the pit in a westerly direction to a detention basin. Each of those pipes, as well as those to which it was joined, were approximately 2.4m in length being the standard length of such pipes. 7 The hole created by the collapse of the grass surface of the nature strip when the respondent stepped upon it, was located at the edge of the concrete pathway between a prolongation of the western side of the concrete lid over the pit and that edge. It was approximately 300-400mm to the north of the northern edge of the lid and located over the southern most 900mm diameter stormwater outlet pipe. 8 In 1990 the NSW Department of Public Works & Services (the Department) constructed sewer line N14063 across Stockton Street approximately 4.3m from the northern end of the pit and approximately 5.5m from the location of the respondent's accident. It became relevant as one of the experts opined that it may have been the cause of the void created by the disappearance of the natural material beneath the grassed surface of the nature strip into which the respondent's left leg dropped. 9 There was some dispute about the actual size of this void. The respondent suggested in evidence that it was the size of an average dining table whereas evidence called by the appellant indicated that it only took approximately 12 shovelfuls of earth to fill in. On the other hand, when the respondent's left leg dropped into the hole, her left foot remained suspending and she lost her shoe, which was later recovered. At the end of the day I do not consider that the size of the void is of any significance. Suffice it to say that it is apparent that it was not insignificant in size and that, no doubt over a period of time, a considerable volume of loose sand (which constituted the natural material beneath the grass surface of the nature strip) was lost. 10 The appellant was notified of the accident on the afternoon of 4 December 1998. As a result a council ganger attended the scene, observed the hole in the nature strip and erected a safety barrier. Mr John Lowson, who was employed by the appellant as a patroller supervising hand, made further investigations on 22 December 1998. 11 Mr Lowson had the concrete lid to the pit removed with a backhoe and then lowered himself down to its floor. With a powerful spotlight he observed that the floor was clear of debris, sand and silt. He further observed the two 900mm outlet pipes running off in a westerly direction. He entered each to see if there were any problems with them. He proceeded approximately 2-3m into each pipe, knelt down and checked the internal surface with his spotlight. He could find no defects. He then checked to see if there was any damage where each of the pipes joined the western wall of the pit. His evidence was that the invert of each pipe was approximately 20-25mm above the floor of the pit and that the end of each pipe was flush with its internal wall. It was then that he noticed what he described as "a slight little gap" beneath the invert of one of the pipes. He said that it was approximately 200mm in length and about the depth of his finger. The following exchange took place: "Q. When you put your finger in, did it meet solid contact? A. Yes, there was definitely no loose stuff inside it. Q. And did that – was that directly on the edge of where the pipe and the pit was? A. That's correct, yeah." Having found the gap, he re-rendered it with some mortar. 12 In cross-examination, Mr Lowson was asked whether he had found any deposits of sand or silt in the base of the pit below the level of the pipes or in the pipes themselves. The point of this cross-examination was that if there had been some silt or sand in those locations, it may have been evidence that the sand above the stormwater pipes had leaked into the pit through a gap where the pipe joined the pit wall. However, Mr Lowson was adamant that it was free of debris or other material although he would not say that the floor of the pit was clean. Mr Lowson also accepted that he took approximately 30 seconds to inspect each pipe. He maintained that he was within the pit for 10-15 minutes. 13 It would appear from the evidence that Mr Lowson was the only person who actually entered the pit to inspect its interior walls and the outlet pipes to which I have referred. Therefore, apart from the small gap described by Mr Lowson at the bottom of one of the outlet pipes (which appears to have been in the wall of the pit itself), there is no evidence of any other crack or defect in either the walls of the pit or the joins between the outlet pipes and the pit wall or between the individual pipes which could explain the cause of the void between the pipes and the grassed surface. The expert evidence 14 Three experts reports were tendered and two experts gave oral evidence. The respondent tendered a report of Mr Robert Fogg, mechanical engineer, dated 3 January 2001. Mr Fogg did not give oral evidence and was not required for cross-examination. Although he attended the accident site, he did not enter the pit. After inspecting the site and referring to various photographs which were said to have been taken in March and April 1999 (which was wrong as they must have been taken prior to 22 December 1998), Mr Fogg expressed his opinion in the following terms: "The cause of the subsidence area is, in my opinion most likely due to leakage at a pipe-to-pipe joint or pipe-to-inlet joint. It is usually impractical to construct a pipeline to resist total movement. By the provision of 'hinges' the pipeline can be designed to tolerate considerable movement without breaking or leaking at the joint. Such 'hinges' are provided by the use of rubber ring joints which make the pipeline flexible. Where there has been insufficient attention to the issue of: · The type of bedding and the care to which it is prepared and, · The uniformity of support given by the foundation and side fills then the pipe will be subject to excessive movement at joints or 'hinges' thus providing a means of exit for water within the pipe and enabling the water to create a localised erosion condition. " 15 I interpolate here that Mr Fogg did not suggest, nor was there any evidence to support the suggestion, there had been "insufficient attention" given to the two issues which he identifies as liable to cause movement of the pipes. 16 Mr Fogg then proceeded to set out extracts from the Humes Concrete Pipes website which, he said, provided details of "current practice" for foundations when installing concrete pipes in a trench in an area to that he had investigated in the present case. Under the heading "Foreseeability", Mr Fogg expressed the view that "[w]here engineering installations of stormwater drains are not undertaken to adequate standards or inadequately discharged, accidents of the type under investigation are clearly foreseeable." 17 Under the heading "Preventability", Mr Fogg made reference to Australian Standard AS4360 – 1995 Risk Management as well as to other risk management best practice publications. He then said this: "The undertaking of a basic risk assessment and the strict following of manufacturers recommendations (which have been available for at least 20 years) in the installation of the stormwater drainage and subsequent inspections; in my opinion, is a proactive and effective approach in controlling the risks associated with hazards such as this." He then concluded that the injury suffered by the respondent could be directly linked to the subsidence of the soil due to a " fault associated with the stormwater drainpipe work ". 18 It is apparent from that part of Mr Fogg's report that I have recorded in [14] above that he was opining that the void had been created by the leakage of sand either at a pipe-to-pipe joint or where the outlet pipe joined the wall of the pit and, further, that leakage had in all probability been caused by movement of one or more pipes due to the fact that rubber ring joints, which would have made the pipeline flexible, had not been utilised in their construction. 19 There is no doubt that in expressing himself in the manner referred to, Mr Fogg was voicing an opinion based upon his understanding of current practice. The respondent, however, submitted that Mr Fogg's reference to manufacturers' recommendations having been available for at least 20 years was an expression of his opinion that rubber ring joints should have been utilised in the design of the subject stormwater system at the time of its construction in 1981. 20 In my opinion, it is impossible to relate the passage in Mr Fogg's report referred to in [17] above to that referred to in [14]. His reference to 20 years was admittedly to manufacturers' recommendations with respect to the installation and subsequent inspections of stormwater drainage. But nowhere does he say that for at least 20 years those recommendations have included the installation of rubber ring joints in such drainage systems in particular circumstances, in all circumstances or at all. Accordingly, I do not read Mr Fogg's opinions recorded in [14] above as doing other than expressing current practice with respect to the design and construction of stormwater drainage systems such as that the subject of these proceedings. In particular, he says nothing as to the proper standards of construction in 1981 when the subject drainage system was constructed. As such, his opinion does not progress the matter for the respondent. 21 The appellant tendered a report of Mr J A Clark, a director of Jackson Clark Pty Limited, which provides services to clients involved in building and civil engineering construction in terms of project assessment, both pre-tender and during performance. Mr Clark has qualifications in civil engineering and, according to his curriculum vitae, has had considerable experience in heavy civil construction projects including stormwater drainage systems. 22 Mr Clark's first report of 16 January 2002 was prepared in response to that of Mr Fogg. He noted that Mr Fogg did not appear to have carried out any investigation of the pipes, its jointing or connection to the stormwater pit in order to establish whether a joint had opened up. He considered that Mr Fogg was simply asserting that if insufficient attention had been paid to the bedding of the pipe thus allowing excessive movement of joints without rubber rings, the pipe could have leaked and caused erosion. Mr Clark also noted that Mr Fogg provided no evidence to demonstrate that this had in fact occurred or that installation of the bedding and foundations of the pit and outlet pipes had not been carried out in the manner shown in his extracts from the Humes publication to which he referred. 23 Mr Clark continued: "I do not know whether the pipes in the Council drainage system had rubber ring joints. In his Report, Lindsay established the stormwater system was constructed probably in late 1980 or early 1981. I understand that Council are also of that view. From my experience it was common, at that time, for stormwater lines to be constructed using pipes of a flush joint or open spigot and socket joints which did not use rubber rings." 24 Mr Clark then records that he arranged to have the lid of the access shaft to the pit removed and inspected the area within, although it is not clear whether he actually entered the structure to do this. He does say, however, that "the floor of the pit was fairly clean and free of sand and soil which indicated that there were no significant points of entry for such material within the pit or adjacent pipes." He then said "The ground in this area is largely sand. From my experience if a hole in a stormwater system occurred due to a joint opening up or a significant crack or break in a pit wall it is more likely that the sand surrounding the system would be washed into the pipe or pit and cause a draw down of the material above the hole which could eventually cause a collapse or subsidence at the surface of the ground. As noted earlier the Council Ganger who repaired the crack in the pit wall did not observe any excessive deposition of sand in the system or any open pipe joints. No pipe joints were repaired. If there had been an open joint and it was left in that condition the process of the sand being washed into it would have continued and the subsidence at the surface would have reoccurred. Fogg observed there were no signs of such subsidence at his inspection and I observed none at my inspection. Fogg has not shown that a pipe joint had in fact opened up and I do not consider the subsidence and hole occurred as the result of such an event." 25 I would interpolate here that the reason why no further subsidence has occurred since the respondent's accident may be that the only point of entry of sand into the pit was through the small gap discovered by Mr Lowson, which he repaired. This gap was below the point where one of the outlet pipes joined the pit. If this is so, then there is scant evidence from which it could be inferred, let alone directly established, that that gap was caused by the manner in which the relevant outlet pipe was connected to the wall of the pit or that the pit wall in which the gap was located was inadequately constructed in 1981. 26 Mr Clark then proffered the opinion that although the hole into which the respondent fell was located some 4.5m from sewer line N14063, nevertheless any subsidence of the backfill of the trench in which that sewer line had been laid could have resulted in sand from adjacent areas being transported by groundwater to a void created by that subsidence (the sewer theory). 27 Mr M Bonzol, the Project Risks Manager of the Department for the Hunter New England Region, responded to the sewer theory on behalf of the respondent. In a report dated 22 October 2002, he set out in detail reasons why, in his opinion, there could not have been any subsidence of the backfill of the trench, which would have resulted in sand from adjacent areas being transported by groundwater in the manner suggested by Mr Clark. He was adamant that at the time of construction of the sewer line, which he supervised, the procedure then adopted would have eliminated any voids within the trench. 28 Mr Bonzol then proceeded to comment on stormwater construction and expressed the view that in his experience stormwater pipes and pits are not constructed to the same standards as sewerage systems where, from a health perspective in particular, sewerage leakage from the system is to be avoided. Further, it was also important to prevent infiltration of ground water into a sewerage system as this adds to the cost of treatment. In stormwater systems, according to Mr Bonzol, these requirements do not apply, therefore allowing stormwater systems to be built to less stringent standards. Moreover, since, unlike in sewer construction, testing for water tightness is often unnecessary, these lower standards often result in a reduction in quality in manufacture and construction. He then continued: "The Clark report notes that the 900mm diameter stormwater pipes connecting to the structure probably had butt joints without rubber rings. This agrees with the recollections of DPWS supervisory staff familiar with the sewer construction works at this location. Thus there may have been gaps between some pipe sections. Due to the location of the accident hole above the underground stormwater structure, and the nature of the subsurface ground conditions, i.e. soft sand, it is feasible that sand entered the stormwater structural pipes through a crack or gap and was then washed downstream." 29 Relevantly for present purposes, in a report dated 17 January 2003, Mr Clark responded to this passage from Mr Bonzol's report in the following terms: "Mr Bonzol has commented generally on the quality of construction of stormwater systems and observed that sand may have entered the pit or pipes allowing draw down of the material above and the accident hole to form. He referred to my view that at the time of the construction of the stormwater system, butt jointed pipes without rubber ring joints were commonly used and concluded that may have allowed gaps between pipe sections. Butt jointed pipes have been widely used for stormwater systems and their use does not mean that the joints are open so as to allow sand backfill to be washed into the pipe. From my experience if sand is washed into a pipe there is evidence of it by way of deposits in the pipe invert. As noted in my Report the Council Ganger carried out repairs to the pit in December 1998 [sic], advised that no sand was present in the pit or the pipes and he saw no opening up of the pipes near the pit." 30 Finally, in a report dated 27 March 2003, Mr Bonzol responded to Mr Clark's report of 17 January 2003. He reiterated his opinion that the compaction procedure specified and used in the construction of the sewer line was designed to eliminate voids with the consequence that the void created beneath the surface where the respondent fell through, could not have been caused by the sewer theory. As to the question of stormwater pipe jointing, he agreed with Mr Clark that stormwater pipes do not necessarily have open joints. He reiterated that his argument was that, "when taking into account the following: · the less stringent sealing and construction requirements for stormwater systems, · the proximity of the subsurface accident void to the stormwater system, · the loose nature of the natural sand, and · the trafficked area between the stormwater system and the sewer [being the driveway to No. 106 Stockton Street], then it is more likely that the void was caused by sand entering the stormwater system than by a void caused by the construction of the sewer pipeline located some five metres away and completed some 8 years previously." 31 Mr Bonzol then expressed the view that as the sand in the area was relatively fine, it was feasible that it could have entered the stormwater structure through the narrow gap identified by Mr Lowson. He concluded that it was more likely that the accident hole was caused by subsidence due to sand entering the pit and/or the outlet pipes adjacent to and beneath the accident hole. The decision of the primary judge 32 The primary judge rejected Mr Clark's sewer theory, which she considered absurd. Her Honour did not have the benefit of a transcript but, apparently, she listened to the tapes of Mr Clark's evidence. She recorded that it was put to Mr Clark that the most likely cause of the accident was a crack in the pipe wall of the kind that had occurred in the appellant's stormwater pipe, presumably a reference to the small gap found by Mr Lowson. Her Honour observed (at [27]) that Mr Clark "vigorously denied this in so aggressive a manner as to cause me to question his impartiality as an expert". 33 We have not had the opportunity of listening to the tapes of Mr Clark's evidence. However, I should state for myself that a careful reading of Mr Clark's evidence, including his cross-examination, does not support her Honour's observation as to Mr Clark's impartiality as a witness. 34 Although it appears that her Honour accepted Mr Lowson's evidence as to the existence of the "small gap", she rejected his evidence that there was no damage to the stormwater pipe. Her Honour said (at [21]) that she preferred "to accept the reports of the plaintiff on this issue and in particular I note that not only was there an initial visit by Council which resulted in a mortar repair but there were further steps taken to insert more soil when the original soil placed in the hole caused by the subsidence had not settled." I find the above passage curious as neither Mr Bonzol nor Mr Fogg established the existence of any damage to the outlet pipes and the additional reasons noted by her Honour take the matter no further. The fact is that the only evidence of any crack was the small gap found by Mr Lowson in the well of the pit beneath one of the pipes. 35 Other criticisms were made by her Honour of Mr Clark's report and, in particular, she asserted that it failed the tests laid down by Heydon JA in Makita Australia Pty Limited v Sprowles (2001) 52 NSWLR 705 as it contained opinions based on unstated findings of fact and the expert's interpretation of them. With respect, I do not agree. What Mr Clark was advancing was a possible scenario given the absence of, firstly, any evidence of cracking or leakages in either the pipes or the pit other than that found by Mr Lowson and, secondly, any sand in either the pipes or the pit which he would have expected to find had there been the type of leakage asserted by the respondent's experts. 36 The primary judge concluded her comments on the issue of liability in these terms (at [36]): "In addition, given Mr Clark's concession that the hinged pipes referred to by Mr Fogg and Mr Bonzol in their reports and evidence were available for use in 1980, I see no reason not to accept the report of Mr Fogg that hinged pipes of this kind should have been used by Council for the reasons set out by Mr Fogg in his report. Accordingly, I accept that the failure to provide rubber rings led to there being gaps and cracks in the manner described by Mr Bonzol and Mr Clark in their reports and evidence and that this sewer line was accordingly negligently constructed." It is apparent that her Honour's reference to the " sewer line " being negligently constructed was an error and that she intended to refer to the stormwater line. Was the primary judge's decision correct? 37 For present purposes it is unnecessary to determine whether her Honour was correct in rejecting the sewer theory of Mr Clark. I am prepared to accept for present purposes that she was entitled to do so. On that basis, the respondent submitted that the only possible cause of the subsidence of the sand beneath the nature strip was due to the draw down effect whereby the sand must have entered the pit or the outlet pipes through a crack or cracks. In this respect her Honour refers (in [36]) to "there being gaps and cracks in the manner described by Mr Bonzol and Mr Clark in their reports and evidence." I am prepared to accept for present purposes that what the primary judge was referring to was the supposition on the part of those experts that there must have been gaps and/or cracks for the quantity of sand in question to have disappeared. I am also prepared to accept for present purposes that there was no other alternative explanation for the subsidence than that advanced by Mr Fogg and Mr Bonzol. 38 However, the difficulty I have with her Honour's finding is that it assumes, as it must, that it was negligent for the appellant to construct the stormwater system in 1981 without using rubber rings or hinged pipes. However, there is nothing in the evidence of either Mr Bonzol or Mr Fogg that supports such a finding. It would appear that her Honour's assumption is based on what she suggests was a concession by Mr Clark that hinged pipes were available for use in 1980 to which must be added the unstated assumption that such pipes ought to have been used in the construction of this particular stormwater drainage system. 39 I have already referred in [23] above to the written evidence of Mr Clark in his report of 16 January 2002 that in his experience it was common in 1981 for stormwater lines to be constructed using pipes of a flush joint or open spigot and socket joints which did not use rubber rings. There was nothing in the reports of Mr Fogg or Mr Bonzol to suggest the contrary. 40 In his oral evidence in chief Mr Clark accepted that a hole, slot or joint in a pipe of about 10mm could allow the ingress of sand into the pipe. Further, a gap of that dimension through the total thickness of the pit wall would have produced the same result. Although she makes no express finding, it would be reasonable to assume that although the primary judge accepted Mr Lowson's evidence as to his discovery of the "small gap", she rejected his evidence insofar as he was suggesting that, when he put his finger into the gap, there was no loose material, that is, it was solid. 41 Mr Clark's evidence in chief concluded with the following exchange: "Q. Have you ever seen designed – you refer on page 3 of your report to rubber hinging – sorry, rubber ring joints. In an urban stormwater system such as this have you ever either been involved in the construction or design of a pit of this nature using the hinging? A. No. Q. Have you ever seen it done? A. No. Q. If you have a very large construction like large pits and highly reactive soils, might you do it then? A. Yes. I have used hinges in structures of the nature of large tanks in water and sewerage treatment plants, to give you an idea of the scale where they may be used. For a roadside stormwater pit, no." 42 In cross-examination he was asked about pipes with rings and when they were used. He answered: "A. For sewerage systems they're commonly used to prevent leakage of external water into the sewer and to prevent leakage of foul water from the sewer out into the ground and to contaminate it. They're a joint sealant to prevent leak. In stormwater lines they are used to prevent leakage of water out of the pipeline into the surrounding ground where leakage, if it occurred, may cause some difficulties to buildings in the vicinity or some other structures in the vicinity. For instance, if it was on a country highway you probably wouldn't use rubber ring joints." It was not suggested in the present case that the pit was located near any buildings or similar structures. 43 It was then suggested to Mr Clark that loose sand was a difficult medium in which to lay pipes, as it was less compact. However, he expressed the view that a sandy area was quite acceptable for laying pipes. He then said this: "The modern practice, and by that I mean probably within the last 10 years, has been to move into rubber ring joints for stormwater lines in sandy areas which are in sort of urban areas." 44 The cross-examiner then suggested to him that it might be the case that that practice had been observed for about 25 years. He denied that this was so. He was then further challenged on the modern practice being only during the last 10 years and asked where one would find material that supported that proposition. He said that he would probably go to the specification requirements of various authorities which, it was suggested to him, was somewhat self-fulfilling and was not evidence of industry standard, a proposition with which he agreed. He also agreed that manufacturers had for many years produced both open jointed and rubber ring jointed pipes but added that "The manufacturers put out specification sheets of their product. They don't put out documentation saying that, 'this particular product, this particular jointing system should be used here, there or somewhere else'. " 45 The following exchange then took place: "Q. You would agree that back in 1980 products with pipes with rings were available for use? A. Certainly. Q. They would have been the best product to use, particularly in sandy soil, as they are today, isn't that right? A. Yes, they are the … Q. And what I want to suggest to you is that where you have sandy soil and you have ground moisture, and that is from rain or from any other source, there's more likelihood in a soft sand as distinct from a clay or a rock of a pipe moving, isn't that right? A. Not necessarily. Q. Why do you have the rings? (no verbal reply) Q. Why is it that you would put a ring on a pipe in sandy soil? Why would that be a recommendation then? A. Well, the reason you have a ring in any soil at all is to provide a watertight joint. The ring has the capacity to allow individual pipes to flex at the joints by small amounts and remain watertight. That's why you have a ring. Q. If you don't have the ring, it's at these joints that they can flex and not be watertight, isn't it? A. A pipe without a ring, if …. Q. Yeah, a pipe without a ring. A. If it flexes … Q. It may cease to be watertight? A. …it may crack the joint, it may not. Q. And if that were to happen, that would have this draw down effect where it could draw down the sand material and thereby create a hole. Isn't that possible? A. Depending entirely on the degree of the fracture in the joint." 46 In my opinion, the high point of the respondent's case is the first two questions and answers in the above exchange. Unfortunately, the cross-examiner cut off the answer to the second question. However, the problem faced by the respondent is that although the evidence suggests that there existed in 1981 rubber jointing systems for pipes, nowhere does the evidence grapple with the critical issue, namely, what forms of connection were available in 1981 with respect to the connection of the outlet pipe to the wall of the pit as distinct from the connection between one pipe and another. I say this is critical because the only evidence of any gap through which sand could have been drawn down into the pit was that discovered by Mr Lowson in the wall of the pit below the invert of the outlet pipe where it was connected flush to the wall. 47 Although Mr Lowson in his evidence maintained that the 900mm pipes sat flush with the wall of the pit to which they were connected, Mr Bonzol, in his oral evidence in chief, when referring to a photograph of the access shaft taken by Mr Clark and annexed to his report of 16 January 2002, expressed the view that the pipe shown in the photograph extended some 200-300mm into the pit itself. He was then asked: "Q. If that stormwater pipe was not properly sealed would that be a means by which water could escape? A. If the connection between the stormwater pipe and the pit wall, the construction of the pit wall was not complete in that there were areas where you had some concrete separation, some honeycombed concrete, other sorts of areas, some cracking because of the differential movement of the pipe and the pit, you would have gaps opening up that would extend from the pit to the sand outside and that would allow water to wash sand into the pit." 48 However, the evidence did not establish anything more than the gap identified by Mr Lowson. There was no evidence as to how or why it was caused. 49 The respondent relied upon two further passages in Mr Bonzol's evidence in chief which, so it was submitted, provided some evidence of the proper standard of construction of a stormwater drainage system in 1981. The relevant exchanges are as follows: "Q. When do your pipes in a sewerage system and it joins, what do you – do you use the rubber rings? A. Yes. When we construct the pipes and do chambers of the similar size of construction using concrete pipes and cast in situ concrete chambers, we are well aware of the problems of having a crack develop due to the movement of the pipes separate to the pit. The measures we use to do that go from – we scabble or roughen the outside of the concrete pipe so there's a better bond between it and the poured concrete because poured concrete in a pit would actually shrink away from a pipe, so if you don't have that scabbled surface you end up having movement – a crack developing almost automatically. The pits of this type are very solid and they don't really go anywhere but the pipes leading off them, even large diameter pipes like these, will move and settle." 50 Mr Bonzol was then asked whether he used rubber rings when constructing pipes in sandy soils. After it was clarified that the question related to sewer pipes such as those which had been installed to the north of the pit, he responded as follows: "A. The sewer line that's the subject of these proceedings is a PVC pipeline of 225 millimetre diameter. It connects to concrete manholes. To prevent – to allow for the differential settlement of the pipeline in relation to the manhole the specified method of construction is you have a short bit of pipe that's sanded on one side. It's epoxy sanded. That's in case in the base of the concrete manhole, again so to avoid this shrinkage away, and then that stops 100 or so millimetres out from the face of the manhole. You have a rubber ring connection there. You have a short bit of pipe probably 600 millimetres long that's got a rubber ring on both lines, and then you have your main line laid away from that. That mechanism is designed specifically to take into account the fact that the PVC pipeline or any other sewer pipeline may move differentially, settle differentially to the manhole and that hinging, double short hinge effect, allows for that movement to be taken up without cracking the pipe in this particular case because it's much weaker than the concrete. 51 As far as the passage referred to in [49] above is concerned, it is clear, firstly, that Mr Bonzol was responding to the use of rubber rings in relation to sewer pipes. Secondly, this was appropriate given that in a report of 14 March 2003, he had eschewed any experience in the construction of urban stormwater systems limiting his experience with stormwater systems to the construction of such systems associated with water supply and sewerage treatment plants. Thirdly, there was no evidence to suggest that the particular procedure referred to by Mr Bonzol in this passage (and which did not involve the use of rubber rings), had not been used in bonding the 900mm outlet pipes to the wall of the pit. Fourthly, there was no evidence to support the use of such a procedure as being in accordance with civil engineering practice with respect to the construction of urban stormwater drainage systems in sandy soil in 1981. 52 So far as the passage referred to in [50] above is concerned, again the answer was specifically related to the construction of a sewerage line. Further, it did not, and could not, constitute evidence of proper civil engineering practice in the construction of urban stormwater systems in 1981. Conclusion 53 The major issue in the present appeal is whether the appellant breached its duty of care to the respondent. No doubt, it was reasonably foreseeable that if the pipes were not properly joined together or, more relevantly, if one or both of the outlet pipes was not properly joined to the western wall of the pit, that sand could enter the pit thus causing subsidence beneath the surface of the strip over a period of time. In these circumstances, the question is whether it was unreasonable in 1981 for the appellant to utilise the method of construction which it in fact adopted in terms of the connection of the outlet pipes to the western wall of the pit. One can accept that rubber rings or joints were not utilised. As the respondent contended in her written submissions, it seems to have been common ground that rubber ring joints had not been used to connect the stormwater pipes. Rather those pipes had been constructed, as suggested by Mr Clark, "using pipes of a flush joint or open spigot and socket joints which did not use rubber rings". 54 The respondent further submitted that the question should be posed in the following terms: since subsidence and cracking of pipes was clearly foreseeable if ring joints were not used, what should a reasonable council have done in 1980-1981 by way of response to that foreseeable risk, given that the installation was in an urban environment, in sandy conditions and expected to last at least 50 years. 55 It will thus be seen that the respondent's case was conducted upon the basis of a failure to properly construct the drainage system by failing to utilise rubber ring joints. The respondent complained that there was no evidence from the appellant as to how the stormwater installation had been constructed and, in particular, what steps if any had been taken to properly compact the surrounding earth so as to reduce the pressure on the pipes and their linkages. With respect, this complaint is misconceived. 56 Firstly, there was no evidence to suggest that when the pit was constructed and the outlet pipes laid and connected to the pit wall that there was any inadequacy in the compaction of the material upon which they rested. Secondly, there was no evidence of any subsidence of the material upon which the immediate outlet pipe rested thus causing that pipe to move resulting in cracking of its connection to the wall of the pit. Thirdly, as already observed, there was no evidence to the effect that proper engineering practice and standards of construction in 1981 required either the rubber jointing of pipe to pipe or some method of connecting the outlet pipe to the wall of the pit other than that which was adopted. Fourthly, the only evidence of the common method of construction of stormwater systems such as that under consideration was that of Mr Clark who made it clear that rubber ring joints were not used in 1981 unless the relevant joint was close to a building or other structure. Finally, only one crack or gap was discovered and that was by Mr Lowson. 57 The onus lay upon the respondent to establish, on the balance of probabilities, that there had been failure by the appellant to properly construct the relevant connections in 1981. Senior counsel for the respondent submitted that there was just sufficient evidence to enable the respondent to "fall over the line". In my respectful opinion, the respondent has fallen well short of the line. The evidence was totally inadequate to justify the primary judge's finding that the system had been negligently constructed in 1981. 58 I would therefore propose the following orders: (a) Appeal allowed. (b) Set aside the judgment and orders of J C Gibson DCJ made on 22 August 2003 and in lieu thereof enter judgment for the appellant. (c) Order that the respondent pay the appellant's costs of the proceedings at first instance and of the appeal but that in respect of the latter, she is to have a certificate under the Suitors' Fund Act 1951 if otherwise qualified. 59 LEVINE J: I agree with Tobias JA. ********** Last Modified: 07/16/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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