Wednesday, 21 September 2011

An Adjudicator Takes Advice Which He Does Not Follow

An adjudicator telephoned an expert to ask about the correct method of constructing a sand-and-cement floor screed.  The case the adjudicator was considering involved the incorrect placement of a reinforcing mesh in a screed. 
The expert described to him the alternatives which would have ensured correct construction.  The expert gathered from his conversation with the adjudicator that the mesh was generally laid below the screed but was in some places poking out from it.  No other fault was reported.
Whilst the expert confirmed that the mesh, to perform its intended purpose, should be placed centrally in the screed, he also advised that the screed may work adequately without reinforcement – that, in fact, the incorrect incorporation of reinforcement may not cause widespread damage.  The adjudicator had, however, already made up his mind that the claim was justified on the basis that the construction was faulty regardless of the consequences thereof.

In the above floor-screed adjudication, the defendant might have successfully argued that the fault in the placement of the screed had caused no more than minor damage which could be corrected at a much lower cost than the complete replacement of the screed.  His argument that the work was not defective was weak
but an argument that complete replacement of the screed was unnecessary would have had some force.  Mitigation of loss should be taken into account.

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