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Te Whatu Ora presents final arguments

Wellington High Court has heard the final arguments in a four-week-long trial about alleged liability for seismic defects in Wairarapa Hospital.

The claim relates to alleged defects in the construction and consenting process for Wairarapa Hospital between 2004 and 2007, and questions about a code of compliance certificate.

Te Whatu Ora [formerly Wairarapa DHB] is claiming almost $90 million in damages, plus interest and costs from Masterton District Council [MDC] to remedy defects in the hospital building. MDC has defended the claim on a wide range of grounds, with the council’s legal team summing up its case on Monday [as covered in yesterday’s Times-Age].

Les Taylor KC summarised Te Whatu Ora’s arguments on the final day of the hearing yesterday.

“There is no dispute that Wairarapa Hospital suffers from significant structural defects. It does not comply with the Building Code, and must be repaired so as to comply with NZS4203 and in particular the category one design standard that the building shall not suffer loss of function following an ultimate limit state – in that case, a one in one thousand year earthquake,” he said.

This is so, Taylor said, even though there was a specific design intent that the hospital was to be built to an acceptable seismic standard for its function, and was located in an area of the highest seismic risk. It was also built close to, or on, an identified fault line.

“The hospital is also likely to become isolated as a result of transport and other vulnerabilities in a major earthquake making access to other hospitals difficult, after a major earthquake,” he said.

The court heard that the situation had arisen, notwithstanding MDC issuing a Code of Compliance Certificate [CCC] for the hospital.

“What has to be understood is that the duty of the council is to exercise reasonable care and skill to ensure that the building as built complies with the code. The council is responsible to Te Whatu Ora – Health New Zealand as owner of the hospital for breach of its duty to the hospital in issuing the CCC in January 2011,” Taylor said.

“The council negligently failed at that time to ensure the hospital was code compliant, including in its structural elements.

“It will be submitted that it is clear the council did not at the time it decided to issue the CCC have sufficient information to be satisfied on reasonable grounds that the building as built complied with the building code.

“In particular it did not seek or obtain the engineer’s producer statement PS2 or PS4, which it was assured would be provided. Nor did it carry out inspections or obtain inspection records in order to satisfy itself on reasonable grounds that the structural elements of the building complied with the building code.”

Taylor submitted that the evidence pointed to a preferred remediation strategy of building a new, stand-alone hospital structure [referred to in evidence as ‘Scheme 2’] rather than attempting a comprehensive remediation of the defects in the current hospital building.

Te Whatu Ora did not consider maintaining the complex functionality of a working hospital while at the same time undertaking the relevant work to be an effective remedy.

The Court had heard previously the new building would contain only some of the hospital’s functions, with the current building continuing in place.

MDC has robustly defended Te Whatu Ora’s claims, including the remediation plan, which it contends can be done in a more cost-effective manner.

The hearing in Wellington was expected to conclude yesterday.

Public Interest Journalism funded through NZOnAir

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