Hochtief (UK) Construction Ltd v Atkins Ltd
| Jurisdiction | England & Wales |
| Judge | Mrs Justice O'Farrell |
| Judgment Date | 31 July 2019 |
| Neutral Citation | [2019] EWHC 2109 (TCC) |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 31 July 2019 |
| Docket Number | Case No: HT-2017-000148 |
[2019] EWHC 2109 (TCC)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
TECHNOLOGY AND CONSTRUCTION COURT (QBD)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice O'Farrell DBE
Case No: HT-2017-000148
Suzanne Chalmers (instructed by Clyde & Co LLP) for the Claimants
Luke Wygas (instructed by CMS Cameron McKenna Nabarro Olswang LLP) for the Defendant
Reading day: 29 th October 2018
Hearing dates: 30 th, 31 st October 2018, 1 st, 5 th, 15 th November 2018 21 st, 22 nd, 23 rd, 24 th January 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This dispute arises out of the East Kent Access Road Phase 2 project, comprising the construction of two new dual carriageway roads, the A256 and A299, to improve transport links in East Kent.
Kent County Council (“KCC”) was the employer for the project. KCC engaged Jacobs Engineering UK Ltd (“Jacobs”) to carry out the design of the project (excluding the detailed design of the structures) and to act as project manager.
On about 27 August 2009 the claimants, Hochtief (UK) Construction Limited and Volker Fitzpatrick Limited, acting in joint venture (“the JV”), were appointed as principal contractor for the project by KCC (“the Main Contract”).
In December 2009 the JV engaged the defendant (“Atkins”) to complete the civil and structural design elements of the Main Contract (“the Subcontract”).
The scope of work under the Subcontract included the permanent civil and structural design for:
i) the Cottington Road Bridge (“the Bridge”), a two-span bridge carrying the A256 dual carriageway road over the Canterbury to Ramsgate railway line and Cottington Road; and
ii) the Cliffsend Underpass (“the Underpass”), a 120-metre-long tunnel under the railway line to accommodate the A299 dual carriageway.
The Bridge runs approximately north-east to south-west with a 30 degree end skew. It is 61.5 metres long, formed of a double span of steel beams, each of 30.7 metres, acting compositely with a cast in situ reinforced concrete deck above, spanning between two 1.5 metres thick reinforced concrete abutment walls. The approach embankments meet the bridge deck at a height of 9 metres above the road and railway. Cantilever wing walls at the sides of the abutment walls are set at various angles and lengths to form a transition with the approach embankments behind and to locally support the fill. The wing walls on either side of the abutment walls are not symmetrical, as they are required to accommodate varying physical constraints.
The design of the approaches to the Bridge incorporated a stepped layer of lightweight fill material, Filcor, into the general fill supporting the abutments. The Filcor comprised expanded polystyrene cube (“EPC”) blocks. The EPC blocks were covered by sheets of high density polyethylene (“HDPE”) membrane to prevent damage from any hydrocarbon spillages from vehicles using the carriageway.
Following completion of the Bridge in 2011, surface settlement of the carriageways on the north and south sides of the approach embankments was discovered, forming localised depressions. Between 2012 and 2014 remedial works were carried out.
The Underpass is 126.5 metres long, with a roof/deck 1.8 metres deep, and is 21.6 metres wide. At the time of construction, the Underpass was one of the longest jacked structures of its type in the world, a significant engineering achievement.
Each deck was jacked into position from the west end of the Underpass, pushed along concrete slide-paths, one on each side of the structure. A huge amount of jacking force was required to push the decks into place. To accommodate this, an anti-drag system (“ADS”) was necessary to reduce friction between the top of the decks and the ground above. The ADS comprised pairs of steel sheets, each one metre wide, sandwiched along the length of the Underpass. An anchor headwall beam was built first, to hold the ADS sheets. The decks were then jacked beneath the beam. During the jacking process, the steel sheets were slid along each other to reduce the force needed to push the decks into position. Bentonite slurry was injected above the tops of the decks to lubricate them during installation. Following completion of the jacking process, in situ concrete head walls were constructed.
The Underpass was completed in March 2012. In April 2012 signs of leakage were observed at the west end of the Underpass, including rust staining on the headwall beam at the west end of the Underpass, icicles above the carriageway and fine cracking to the concrete face of the headwall. In 2013 remedial works were carried out.
On 12 June 2017, the JV issued these proceedings against Atkins for breach of contract and/or negligence in carrying out the design of the structures. Damages are claimed in the sum of £802,475.35 in respect of remedial works to the Bridge and £122,559.82 in respect of remedial works to the Underpass.
The JV's case in respect of the Bridge is that Atkins failed to design or specify any adequate system of drainage of sub-surface water from above or adjacent to the membranes. This permitted excessive water penetration into the chalk fill, causing softening and collapse compression of parts of the general chalk fill of the embankment approaches, resulting in differential settlement of the carriageways.
Atkins disputes liability. Its case is that in general the pattern of settlement was not collapse settlement but foundation settlement that was expected in such construction. Atkins provided for adequate sub-surface drainage in its design by incorporating 6N fill on top of the HDPE membrane and specifying that the membrane should be laid to a fall of 1:40 away from the abutments. The design intent was that most sub-surface water would flow into the 6N fill and be dissipated into the sides of the embankment or the fill in the embankments. Local depressions were caused by workmanship issues, namely, the JV's failure to lay the membrane to the required line and fall, the placement of chalk fill over the membrane beyond the edge of the EPC blocks and behind the wing walls, with the result that water was permitted to collect in the chalk fill in the side slopes, and poor compaction and handling of the chalk fill.
The JV's case in respect of the Underpass is that the water leakage was caused by Atkins' failure to design or specify an adequate waterproofing system for the joints between the elements at the west end of the Underpass. The JV acknowledges that there were deficiencies in its workmanship, namely, voids in the grout fill, but its position is that properly applied grout would not have prevented the leakage that occurred.
Atkins disputes liability. Its case is that leakage was caused by matters for which the JV was responsible, namely, failure to remove parts of the ADS sheets from the end of the construction, and failure properly to install grout in the 100mm void between the roof section nearest the end of the Underpass and the headwall anchor beam.
Subject to issues on liability and causation, quantum has been agreed.
Evidence
The following witnesses gave evidence at the trial:
i) Mark Pritchard, the JV's design manager for the contractor designed elements of the project;
ii) Santiago Daniele, the JV site agent for the construction of the Underpass;
iii) David Ongley of Crawford & Co Adjusters (UK) Ltd, the loss adjuster for claims made in respect of the remedial works;
iv) Christopher Fry, technical director of Atkins and lead engineer for the Bridge;
v) Tomasz Kucki of Atkins, design team engineer in respect of the Bridge and the Underpass;
vi) Wai Hung Wales Cheung of Atkins, project manager for the Bridge.
The Court had the benefit of written and oral evidence from the following experts:
i) Robert Jessep of Robert Jessep & Partners Ltd, engineering expert for the JV;
ii) Tony Bracegirdle of Geotechnical Consulting Group, engineering expert for Atkins.
This case was prepared and conducted impeccably on both sides. Counsel had an impressive command of the factual and technical details relevant to the issues. Their careful preparation was evident from their skilful cross-examination of the witnesses. Unfortunately, an accident suffered by the claimant's counsel during the trial resulted in an unforeseen adjournment and delay in resuming the hearing in two further tranches. The Court is very grateful to all concerned for their understanding, patience and cooperation to facilitate timely and efficient completion of the hearing.
The Subcontract
On 27 August 2009 KCC and the JV entered into the Main Contract under which the JV agreed to carry out the construction of new dual carriageway roads, namely the A256 and the A299.
The Main Contract was the NEC3 Engineering and Construction Contract, 2005 edition (with amendments to June 2006), incorporating Option A and other agreed options. The Main Contract provided that the detailed designs of the structures were Contractor Designed Elements for which the JV was responsible.
The specification for the main contract works was set out in volume 2A of the Works Information Documents. The structures to be designed by the JV, set out in volume 2B, included the Bridge and the Underpass. Drawings for the works were set out in volume 2D.
On 17 December 2009 the JV and Atkins entered into the Subcontract (made under seal) whereby Atkins agreed to carry out the design elements of the Main Contract, including the permanent civil and structural design...
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