The Wellington High Court has heard Masterton District Council [MDC] summarise its defence to claims made by Te Whatu Ora in relation to alleged defects in the construction of Wairarapa Hospital.
The closing submissions in MDC’s defence yesterday were made at the beginning of the final week of a hearing that started at the end of July.
The claim relates to alleged defects in the construction and consenting process for Wairarapa Hospital between 2004 and 2007.
Te Whatu Ora [formerly Wairarapa DHB] is claiming almost $90 million in damages, plus interest and costs for alleged seismic defects in the hospital building. MDC is defending the claim on a wide range of grounds.
Questions around the relevant code of compliance certificate [CCC] are one of the central subjects of the claim. An entry relating to a CCC exists in MDC’s computer system, dated January 2011.
Christine Meechan KC provided a detailed overview of MDC’s defence in yesterday’s closing submissions.
“This case involves a unique mix of factual, legal and technical issues,” she said.
Questions relating to three key issues are to be determined, Meechan said: the nature of the duty; whether [duty being established] there was a causative in-time breach; and what level of damages should be awarded for any established loss.
“A key challenge for the plaintiff is to determine a breach of duty caused loss in circumstances where this hospital has not in fact suffered any damage,” she said.
Meechan raised a number of questions around the impact of the length of time that has passed since the hospital was built almost 20 years ago, including the quality of some of the evidence available now.
She also raised questions around evidence Te Whatu Ora has not brought, especially in relation to the existence or not of the relevant CCC.
A computer entry in MDC’s computer system exists in relation to the CCC in question. However, Meechan said Te Whatu Ora had not applied for the relevant CCC, and therefore one did not exist. She also questioned aspects of an expert witness for Te Whatu Ora – building professional Robert Tidd.
“The criticism of the council’s inspection regime comes from Mr Tidd,” she said.
“In my submission, there are a number of unsatisfactory aspects to Mr Tidd’s evidence, which of course supports both the primary claim and the loss of a chance claim.”
“Critically, Mr Tidd has not provided the court with clear evidence as to what an inspector’s eye-view would have been at the point of final inspection – which appears to be the point as to which Mr Tidd says certain structural defects should have been picked up.”
Meechan said Tidd’s visit to the hospital appeared to have occurred almost by chance when he dropped into the hospital when he was out and about doing something else.
Meechan later addressed questions about the CCC.
“This does not alter the fundamental point no CCC was ever issued. This is a fundamental point,” she said.
“As a matter of fact, nothing was ever issued or given, communicated or provided to Te Whatu Ora.”
MDC was expected to conclude its closing submissions yesterday afternoon. The case continues in Wellington today. – NZLDR
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It’s a fundamental requirement of the Building Act that it is the property owner’s responsibility to apply for a Code of Compliance. It’s not the Council’s duty to issue one, it can only be used on evidence of PS4 documents from the owner’s engineers. No PS4, no application for a CoC. Fault is not with the MDC.
Monty Python will want these people.. a building inspector who was ‘out and about so popped in to take a look’ at the construction of the hospital! No CCC…will MDC fine itself for non-compliance? And … no request by Te Whata Ora for crucial evidence which is sittìng on MDC computer so is now inadmissable.
Waiting for next episode..