Youth centre 'ruined' because infill used not fit for purpose

THE BALLYMUN Central Youth Facility building was “ruined” within three years of being built as a probable result of its floor heaving upwards due to an abundance of pyrite in infill, the Commercial Court has ruled.

Mr Justice Peter Charleton found yesterday the infill was “not fit for purpose” and that James Elliott Construction Ltd (JEC), builder of the Ballymun facility, was entitled to damages against Irish Asphalt Ltd (IAL), supplier of the infill. Between damages and costs, IAL now faces a potential multimillion euro bill.

The damages will be decided later as will liability for costs of the case which ran for 58 days, of which 52 were spent hearing evidence from experts. A striking feature of the case was the inability of engineering, architecture, geology and petrography experts on each side “to agree on anything of importance to the case”, the judge said.

While noting counsel proofed the case “very carefully” and another pyrite heave case ran for 159 days in the Commercial Court, the judge said calling “several experts on one topic” may be an issue requiring trial judges to get involved in “directing appropriate proofs” if delay and expense are not to be allowed potentially defeat the right of access to court.

JEC, of Virginia, Co Cavan, spent about €1.55 million repairing the building in 2009 but, the judge noted, multiples of that sum have been spent on engineering and petrographic (rock analysis) investigation of the building and on legal fees.

The judge, who visited the building at Sillogue Road during the case, said, while it previously exhibited serious defects, it was now “a testament to the high standards and social-minded intention of Ballymun Regeneration”.

JEC had sued IAL over structural defects in the facility, built by JEC between 2004 and 2005. It claimed the cracking of the concrete floor slab and partition walls was caused by pyritic heave. It sought damages for the costs of repairing those and of site investigations into the defects and also sought an indemnity against any claim by Ballymun Regeneration Ltd over the defects.

IAL denied liability, submitted the allegation of pyritic heave was an unproven theory and alleged the cracking could have been caused by other factors, including alleged bad construction and unstable foundations.

In his reserved 164-page judgment, Mr Justice Charleton noted the facility was built in 2004/05, “ruined” by 2007/08 and remediated in 2009. JEC acted reasonably in agreeing to fully remediate it, he said.

The judge said it had been proven as a probability the damage to the building came about as a result of the floor heaving upwards. “This was the sole cause of the damage to the building.” He found the foundations were properly sited on black boulder clay, were and are stable and it had not been established they had sunk. While some “very small” degree of movement in the foundations was probable, they subsided less than 5mm over the relevant years and this did not explain the cause of damage.

Much of the defendant’s case was about seeking to prove crystal heave was impossible but it had failed to prove that, he said. On the contrary, he regarded crystal heave having been proved as “integral to the infill” supplied by IAL to JEC.

Quantifying the degree of heave by reference to petrography and other samples was impossible but it was probable the heave happened in sufficient measure to ruin the building, he said. He ruled Golder swell test evidence taken on its own and within a proper context of certain expert reports, established a probability the floor slab heaved. That was also backed up by the Arup test, he said.

Monitoring tests on the building over a one year period established that the foundational elements, on which the external walls rest, hardly moved downwards at all, he also said. In contrast, it was “impossible for any judge to ignore the fact that the floor has been shown to have moved upwards”.

Given the absence of any other cause apart from pyrite heave which could result in the floors moving upwards, the monitoring results, coupled with the other evidence, were enough to prove JEC’s case, he ruled.

He ruled the infill material supplied by IAL to JEC was “not of merchantable quality” and, therefore, there was a breach of contract. An implied condition about “fitness for purpose” was an obligation by IAL to JEC under the contract and the material supplied was not fit for purpose, he ruled.