TUESDAY. SEPTEMBER 27.
[Before His Honor Sir Charles Cooper, Chief; Justice.] The Adelaide Waterworks Commissioners v. FROST and WATSON.
Mr. Fenn, at the opening of the Court to-day, addressed the Jury for the defence. He said that considering the ex- traordinary demand and the extraordinary manner in which it had been brought before the Jury, he felt he was bound to make some comments on the case. He considered it a case of cast importance, not only in the nature of the claim, but also in reference to the character of the defendants, as it might have an influence to their prejudice in future contracts, :ind the large sum sought to be recovered from them was a most serious matter. It was a prosecution on the
part of the Crown, and the head of the Government appeared in Court as an advocate in the case, and! therefore he, Mr. Fenn, waa laboring under no ordinary difficulty, as the case was brought by the Government, supported by the Govern- ment, and all the talent of the bar had been retained on the part of the plaintiffs. Mr. Fenn said the most remarkable feature in the case was, that nothing bad been brought for- ward by the plaintiffs showing the state of the foundations, and it was only in cross-examination that anything could be got about them. He, however, would bring evidence to show the real cause of the work being defec- tive. He did not mean to say that the engineer was incompetent, but the work was a new work, nothing of the sort having been previously performed in the colony. The stream of the Torrens was at times a mountain torrent, and they all knew that many attempts had been made, without effect, to resist the river, such as the city and other bridges, which had been washed away, aud therefore it was no great wonder that there was not as yet sufficient knowledge in the colony to plan an erection capable of resisting the river. The defence that he should rely upon was, that the defendants undertook to do the work under the supervision of the nominee of the plaintiffs, who overlooked it
from day to day as it was going on. The engineer had power to order the work to be done, and also to alter it, and portions were so altered ; and these being the facts, he contended the plaintiffs could not now turn round and say, 'Oh, no we don't approve of the work.' If that were allowed, it appeared to him that it would be nothing but a fraud upon tbe contractors. The plaintiffs he coutended had blinked the question. They said to the defendant, ' You have undertaken the work under our nominee,' and when he certifies that the work is done, they say ' we will put that aside ; we don't care what he says ; we will see that you have done it according to the contract. After twelve months had expired from its completion, and when the weir was full of water, they get some one else to examine the work, and then say they don't recognise their engineer, under whose supervision the work was done. If that were to be the law, then he would say that no contractor could be safe, if he should be answerable for defects discovered in the way those in question were. Mr. Fenn then alluded to some words used by the Attorney-General, insinuating that there had been cheating on the part of the defendants. According to the contract, he said, the defendants were bound to put good materials and workmanship in the structure, but all the skill was to be supplied by the engineers, and of that he only was to be the judge, and answerable for it; but he would not say, therefore, that the engineer could be accused of cheating. It was a term, he thought, should not be applied either to the contractors or engineer. Mr. Fenn referred to the contract to show that the engineer was to be the arbiter between the parties, and that the defendants were entirely in the hands of the Commissioners by giving the engineer power to reject the work. It was not in evidence that the engineer had objected to the work; and according to the rule of law, that the exception proves the rule, it should be inferred that if he did not object to it, he approved of it, and his approval would be tantamount to an admission that it was done according to the contract Mr. Fenn argued at great length upon tlie evidence produced with reference to the defects in the work, and then called his witnesses. George E. Hamilton, late Engineer of the Waterworks, was examined and stated that be was present when the foundations were cleared for the concrete base, and was present almost daily till it was completed. He stated that the concrete was composed of five parts gravel and one of lime and a sufficient quantity of sand. He directed the making of the first lot as a sample of the concrete to be used. After tlie foundation was laid a Clerk of Works was appointed, and did the duties of Assis- tant Engineer, as described in the specification, who was to report if the work was not properly done. He noticed water in the foundation, springs, some coming through fissures of the rocks. He was not there when the superstructure was begun ; some little time elapsed before he saw it again. It was three courses up when he saw it again. Thought he was absent more than a week after the con- crete fouudation was laid. Each course was a foot high. Some of his visits only extended about 10 minutes on the works, because, as he had a Clerk of Works, he took it for granted that everything would be going on right. Sometimes he was more than a week away. Every time he went up there he generally looked at the work, but not very minutely. On those occasions if he did not go on the work he passed it. He saw some of the ashler work. He did not always approve of the stones for the rubble work. On one occasion he saw two large stones in the rubble, and, on enquiry, found they had been put in while the Clerk of the Works was at dinner. He had them taken out and the men who put them there he directed to be discharged. The first time he saw the superstructure, thinking the stones used for the rubble work too small, he ordered larger ones to be used. The mortar had the proper appearance of being good. The lime used ap- peared to be well burnt, and which he approved of. As to the ashler-work, each stone could not always be seen, as when work of that sort was going on, it was mostly covered with barrows and other things employed on the works. He remembered causing two stones of the ashler work to be removed. He did not usually make minute in- spections, as he had a Clerk of Works there, who he presumed, if any thing were going on wrong would report to him. After the work had got up three courses, the clerk called his attention to some bad cement on the face of the ashler, and he directed its removal. He presumed it was removed. After the ashler-work was completed, it looked exceedingly welL If there had been occasion to com- plain of the work he should have done so. When it was completed it appeared to be a good piece of work, and he ex- pressed his opinion that it was well done. In about a fort- night after completion the first flood came over it two feet nine inches, which the weir stood well. When making the foundation, they were never interrupted In laying the con crete base, only the trouble ef keeping the pumps going night and day. When the concrete was laid it became quite dry aud solid. The pumping was in the hands of the Com- missioners up to the completion of the foundations, and did not hold the contractor responsible. By the Attorney-General— Never sanctioned any deviation from the specifications. 'He was not aware that he had sanc- tioned any deviations besides those he had spoken of. He never ordered any large stones to be laid in the foundation. He noticed two on one occasion, one weighing about one ton and the other heavier. They were laid in the deep part of the concrete, lying on the concrete and surroundjd by it. He did not remember seeing a crowbar thrust into a bed of sand in
the foundation, and ordering it to remain as it stood. He recollected ordering some loose stuff at one of the corners to be taken out, which was done by one of the contractors. Did not know of, nor ever sanctioned, large stones being laid through the structure. Never sanctioned tbe manner in which the rubble had been laid, nor had he any intimation tliat the rubble was put in improperly. The reports of the Clerk of the Works, both verbally and written, were that the work was beiug done according to the specifications. He never by observation, by hearing, or any avenue of knowledge or in formation, knew that the work was being improperly done, except in those cases previously alluded to. The water was most effectually kept out while the base was being laid. The clerk to the works was appointed when the base was com- pleted, and after that the defendants had the duty of keeping the water away, and were paid for it about a fortnight after wards. The contractors never applied to him as to the ashler work not beiug properly imbedded and set in cement. At the time of the second flood, when a part of the work slipped, he first became aware that the face of the ashler work had not been brought to its proper batter. After the second flood a large portion of the ashler work near the north end slipped. The weir was then completed. Believed the whole of the ashler-work was imbedded. If the work had been kept dry while the concrete was laying, it would have been impervious. If a clerk of the works was inatten- tive, there might be great deviation in the materials and design. By Mr. Fenn— It was the duty of the contractors to keep off the water, and he (witness) . never saw any water. The measures taken by them were quite satisfactory to him. He considered in that respect they did all they were bound to do. If they had neglected it he must have seen it. Had never been near the works since. the commencement of its being pulled to pieces. The slip was caused by the stones at the foundation in the rock formation being improperly laid. He was not present when that part of the foundation was laid. He saw tbe slip a day afcer it occurred, and saw a stone forced out at the lower part of the ashler-work. It was impossible that it could have been forced out by the water within the weir. When the weir was oompleted he said the work would be a lasting credit to the contractors. By His Honor, at the suggestion of Mr. Fenn : It was one of the most difficult things in the category of eagineering to deal with mountain torrents. The concrete base, when laid, was perfectly solid and hard, and could not be affected by water. He never saw any of the concrete core put in. At the request of the Attorney-General, His Honor asked Mr. Hamilton if he did not require peculiar care and honesty on the part of those carrying jut a contract In a work of that kind, to which he replied in the affirmative. At the request of Mr. Fenn, the Witness was asked by His Honor if it did not require some peculiar skill and science to design and plan such a structure, which he also answered, in the affirmative. G. S. Kingston stated that he had seen the design, and ex- amined the weir. The design was good, but the site was not. The weir was quite good with one exception, and that was, that the. lime was not hydraulic, and therefore wherever exposed to water would not set, and would
wash away, leaving nothing bat gravel; the water would come in, and, of course, the lime being washed out, the stones not being supported, would fall. Water would have the same effect on mortar; it would not set at all. Concrete was generally made with shingle, some times large stones. If large stones were used, they would resist pressure, if cemented in a mass. By the Attorney -General —No concrete could have set, as he had heard by the evidence, springs were bubbling up where it was laid ; cement should have been used. As an illustration, when forming the vault for Bishop Murphy, he had to use cement, and had a great deal of trouble in keeping the water out. If con- crete were once set, it would last a long time. If water rose up into the concrete it could not be said to be a running stream if it could not get out. Excepting where the springs existed the lime used would be sufflcient for the concrete. G. M. Waterhonse, formerly one of the Commissioners, stated that from a report from the engineer, he inspected the weir and expressed it as his opinion that the foundation, was defective, as the rock had a splintered surface, allowing tbe water to go under the weir. The Engineer was directed to take out the defective work and make it entirely good. Afterwards the Engineer reported that he had made the work good, and he (witness) about two months afterwards went to the works, and on inspection found that the mortar used for the repairs was good bnt all the rest bad ; nothing but sand and not mortar at alL By the Attorney-General —There were two examinations; the first was when the stones were lying exposed ; the Board gave Mr. Hamilton instructions to make that part of the work good. To a question whether there was any resolution of the Board directing the work to be done, the witness answered that there was no doubt that when he had corrected all the parts directed to he made, he reported that they were all satisftorily done- That had reference to some of the rubble masonry and ashler work which had both come oat When it was opened on the second occasion Mr. England wm present'; at that time there was a hole in the side, and fi dm curiosity theyhad the hole enlarged, a ad found that the whole except that part put in by Mr. Hamilton, wns nothing but sand. The facing- was only Irwo or three inches deep in cement. With regard to the stones being oat, he was of opinion that the water rose inside the weir to the fop, and that it was the great weight inside that forced the stones out. William Hanson, civil engineer, stated that he reported --n the state of the weir, and was of opinion that at a moderate cost it might be made serviceable for i;hc purpose. By the Attorney-General — It could be made to answer by puddling the back of the weir by a facing of dry walling, which would cost about £600. As to the ashler-work, hia impression was that the stones would have answered if the ' work- had been carried out according to the specification. Had he been building a weir he would not haye trusted to such workmanship as he had heard described. He should hare insisted on something bettei. If the water rose from the foundations, nothing but pure water could come up, therefore it was impossible to take up mud and earth. He had seen the work since its being pulled to pieces. Mr. Andrews cross-examined this witness, at the conclu- sion of which he suggested to His Honor an adjournment, as the examination of his next witness, the Clerk of Works, would occupy two or three hours, and he had 15 more wit- nesses to produce. The Court adjourned to the following day, at 10 o'clock.