Plumbing faults under scrutiny

By Ross Brown, GDLP, LLB, Assoc Dip Eng*

With more than 25 years' experience in Australia and the South Pacific and legal qualifications, Ross Brown's expertise is often called on where plumbing services have failed.

The failure is generally spectacular and catastrophic, with significant property damage, substantial financial loss and sometimes loss of life.

Resolve highlights two cases that required Ross's expertise and recommendations to instructing lawyers.

Medical gas services deaths

Transporting large, heavy bottles of medical gases to a hospital's operating theatre is considered inconvenient and inefficient. One hospital decided to expand its pipe network to its operating theatre and other outlets to give medical staff easy access to gases required for medical procedures.

The hospital engaged a specialist medical contractor to install new pipes into the operating theatre. The new pipework expanded existing pipework installed by another contractor. Unbeknown to the second contractor, piping from the initial installation was incorrectly labelled. The second contractor labelled the new pipework consistent with the older pipework.

Consequently nitrous oxide was supplied to an outlet labelled as oxygen. Once the pipes were installed, tests were not conducted to ensure correct installation and labelling. Soon after the new pipe installation was completed, several mysterious patient fatalities in the operating theatre puzzled medical staff.

During a coronial investigation, the coroner asked NSW Police to investigate the fatalities.

NSW Police engaged Ross Brown to investigate the pipework installation and determine if there were any compliance breaches of legislation or Australian standards.

The investigation revealed:

• The pipework was installed by two different contractors
• It was incorrectly labelled by the first contractor and subsequently by the second
• The pipework delivered another medical gas to an outlet labelled as oxygen
• The labelling was not completed in accordance with the relevant Australian standard
• Pipework testing was not conducted in accordance with the relevant Australian standard
• Testing of gas supplied to the operating theatre was not completed. Had testing been done, as required by the Australian standard, any incorrect gas supplied or other faults would have been identified and rectified before the facility became operational.

The evidence was presented to the coroner and was consistent with other experts engaged to conduct separate independent investigations.

Faulty plumbing and its role in a medical centre flood

One week night after work hours, a medical centre housing expensive equipment, including xray and magnetic resonance imaging (MRI) machines, flooded.

The cause was a burst water pipe installed by a contractor engaged by the building owner to provide a cooling circuit for an MRI machine and associated equipment. Thousands of litres of water damaged the MRI machine and other equipment and flooded the medical centre's entire ground floor.

Ross was engaged to investigate the pipework's failure so the medical centre's insurer could consider whether recovery proceedings could start against the pipework contractor.

The investigation included a site inspection of the medical centre and associated areas, a review of the failed plumbing pipework, and an assessment of the workmanship and its compliance with Australian standards, manufacturer's requirements and industry practices.

The investigation revealed:

• The pipework was not cut and prepared in accordance with the manufacturer’s requirements, leaving dangerously sharp edges. The edges damaged pipework joints during the initial installation, enabling them to separate and cause the sealant mechanism to fail prematurely.
• The pipework was not adequately fixed and restrained, as instructed by the manufacturer. That allowed the pipe to move substantially during the ordinary transfer of fluids. The poorly prepared and sealed pipework was able to move to the extent it entirely separated at service joints, so substantial volumes of water discharged and flooded the ground floor.

That information was tabled as an expert report for the solicitor and the insurer and used to prepare litigation for recovery of the loss from the contractor.

Ultimately, the matter was settled on favourable terms for the insured medical centre against the contractor.

Conclusion and recommendations

Both matters benefitted from substantial discussions between the instructing solicitor and the expert before a letter of instruction was issued.

Letters of instruction are often not discussed with experts before being issued, leaving experts wondering about the relevance of questions posed; the context in which questions should be answered; and why questions experts thought would be relevant have not been asked.

Conversely, an instructing solicitor, on receiving a final or draft report, reads it with a confused disposition, wondering why the expert did not consider the questions posed in the manner the instructing solicitor intended and whether they have selected the most appropriate expert for the matter.

By discussing a matter before issuing a letter of instruction, legal professionals and experts, having separate, but complementary skills (the expert in the subject matter, the solicitor in communication), can usually assist one another to ensure the letter of instruction leading to the report ultimately produced by the expert is:

• Relevant
• Admissible
• Concise, as far as practicable
• Easily understood by the court and other parties.

Notwithstanding the tests of admissibility required by the Expert Code of Conduct, an expert report that does not convey ideas in a succinct, readily understandable manner will carry less weight than one which does.

Provided the solicitor and/or barrister do not influence the substance of the expert report, there is no issue in conversing with the expert before issuing a letter of instruction or after reviewing a draft report.

If the views proffered by an expert are not as expected, challenge them. The best prepared expert reports are invariably the product of robust debate between the expert and instructing parties. It is prudent and economical to test any expert views before trial, lest any cogent challenge to the expert's views becomes inconveniently revealed.

*Ross Brown is a Unisearch expert, a registered plumber, drainer and gasfitter and a legal expert focusing on building services and hydraulic and fire protection engineering. He has successfully assisted many private clients, government agencies, solicitors, barristers, loss adjusters and insurers. Ross is a member of the Law Society of NSW, the Forensic Engineers Society of Australia, Master Plumbers NSW, the Institute of Gas Engineers Australia and the Institute of Strata Title Management.

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