Wednesday, 21 September 2011

An Arbitrator Takes Advice

Ordinarily a tribunal – whether judicial, arbitral or adjudicatory – may obtain technical advice at need through the appointment of experts.  In this way, the tribunal need not contain members who are personally familiar with all aspects of the type of construction which is in dispute.  Expert witnesses may assist the tribunal properly to understand the technical matters they are asked to decide.  Expert witnesses are distinct from witnesses of fact in that they are allowed to provide evidence of opinion. This may involve interpretation and reliance on hearsay.
Arbitrators and adjudicators have taken expert advice outside the formal boundaries of the tribunal over which they preside. This happened quite recently where an arbitrator, outside the hearing, telephoned an expert for technical advice.
He described the complaints which were alleged against the builder and asked the expert to explain to him what these complaints meant in terms of the behaviour of a roof.
The arbitration concerned the noise caused in attic rooms by the movement (chatter) of the roof tiles in wind.  The complaint, as expressed in the referral to the arbitrator, was simply that the chattering tiles caused annoyance to residents.  No measurements of noise levels caused by chatter or of ambient noise levels, were given.  The use of the rooms within which noise nuisance was reportedly caused was not stated.  The specification for the building work, which the arbitrator had read, was as silent on acoustic performance as the completed roof was allegedly noisy.
There appeared to the expert to be, in the submission made to the arbitrator, no statement of defective work.  The complainant had identified something which might be symptomatic of a defect but had not followed this through to positively identify any fault in the work.  He had described a nuisance without quantifying, by measurement, the annoyance caused – for example, by showing that the noise in the rooms, in relation to their intended use and the background noise levels, exceeded that which written authority gave as acceptable.  There was probably a good case to be made but the evidence necessary to drive the claim home had not been collected and submitted to the arbitrator.
Roof tiles may move to dissipate wind load and, in so doing, may generate noise.  If lightweight construction is used to form attic rooms, this noise may be audible in the rooms.  The movement of the tiles and the audibility of the sound made was alleged, but this was not conclusive evidence of defective construction or of the need for remedy.
Had the expert been asked to provide this advice in an open hearing in front of the claimant and defendant, the claimant might have had an opportunity to amend his claim in the light of the technical advice obtained from the expert and the defendant and claimant might have been able to address properly the real technical issues in front of the arbitrator. As it was, the claimant’s case was being explained to the arbitrator in a private conversation, depriving both the claimant and the defendant of the opportunity to challenge the expert advice at source.
In the above ‘noisy-roof’ arbitration there was a lack of objective evidence and, although there may have been defects requiring correction, these were probably to do with the design of the attic rooms, not the construction of the roof.  Because this was not properly investigated or understood, it was not properly pleaded. 
The arbitrator has to try the pleaded case, not the case that should have been pleaded. The behaviour of the roof was said to annoy occupants of attic rooms.  These occupants could be exceptionally sensitive to noise or the noise could be loud enough to trouble the partially deaf.  With no objective assessment of sound levels, it would not be safe to conclude that the roof was abnormally noisy – in which case the noise nuisance may not be symptomatic of a defect.  As no evidence of fault in the construction was submitted other than that to be inferred from the annoyance its behaviour was causing, the claim was not sustainable. 
A correctly functioning tiled roof may not be silent under wind load.  A correctly designed attic room would take this into account and be built so as to adequately attenuate incoming noise.  Traditional lath and plaster used historically in attic construction in the UK has a density 2 to 3 times that of most plasterboards.  It is formed in situ in lime reinforced with combed hair to make a continuous, flexible, dense roof lining.  Typically, this will better attenuate sound transmission than will lightweight, foamed-plastic, thermal insulants and modern plasterboards.  This may well have been at the root of the problem.

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