CRACKS IN CONCRETE SLABS: THE ONLY ACCEPTABLE TEST AND METHOD OF PROOF
by Chan Kheng Hoe, Head of Construction Law, Chong + Kheng Hoe
Introduction
In Top Forest Wood Sdn Bhd v Vimix Concrete Sdn Bhd (2020), the learned Tee Geok Hock JC sitting as an appeal judge in the Shah Alam High Court had occasion to consider a challenge to the concrete grade supplied.
Facts
Top Forest Wood Sdn Bhd [Top Forest] was in the business of selling timber and wood products. For the purposes of its business, Top Forest owns and operates various warehouses.
Vimix Concrete Sdn Bhd [Vimix] is a ready-mixed concrete supplier and a regular supplier of ready-mixed concrete to Top Forest.
Between 2013 to 2017, Top Forest consistently purchased ready-mixed concrete from Vimix. These purchases were for the purpose of erecting concrete floor slabs at the various warehouses of Top Forest.
Sometime in 2018, Top Forest discovered that one of the concrete floor slabs in one of its warehouses showed substantial signs of cracks. All other concrete floor slabs in other warehouses of Top Forest did not suffer from the same defect. Top Forest requested Vimix to remedy the problem but was ignored.
In December 2018, Top Forest engaged Associated Laboraty Testing Sdn Bhd to test the concrete used in its troubled warehouse. The concrete supplied was supposed to be grade G25. However, tests showed that the concrete floor slab was an average of grade G16.
Top Forest sued for breach of contract, as well as in cheating and deceit.
The findings of the trial court judge
At the Sessions Court where the suit originated, the Sessions Court Judge dismissed Top Forest’s suit. The learned judge found that the suit was mounted 2 years after the concrete was supplied with no complaints beforehand. Furthermore, all delivery orders were signed and acknowledged by Top Forest, showing that there was no complaint at time of delivery.
The appeal
At appeal, the decision of the learned Sessions Court Judge was overturned for the claim in breach of contract. In allowing the appeal, the learned Judicial Commissioner took note that no cube test nor slump test was carried out at time of delivery. Furthermore, “laboratory test of concrete cubes was the only way to test the strength of concrete to assess whether or not it is grade G25”.
The learned Judicial Commissioner made the following observations:
“[25] …it is erroneous for the trial judge to conclude that the mere fact that the Delivery Orders and the invoices issued by the concrete supplier and signed with acknowledgement of receipt by the building owner would constitute the building owner’s acceptance of workability and strength of the concrete supplied. It is the undisputed evidence in the present case (and also a well-known fact of life) that when the ready-mixed concrete is supplied to the construction site and poured on the ground to form a floor slab, the ready-concrete remains fresh and wet at time of delivery and concrete pour, and it will take several days for the ready-mixed concrete to set and gain strength. It is also the undisputed evidence in the present case (and also a well-known reality in the construction industry) that the strength of the concrete can only be assessed by taking concrete cube and testing the cubes at the laboratory after they have achieved set by lapse of several days…(If) the mere acknowledgement of receipt on the Delivery Orders and payment upon the invoices were to constitute a building owner’s satisfaction of workability and quality of the supplied concrete, then no building owner would be able to prove any case of deficiency in quality or breach of supply contract to supply a specified grade of concrete…with the disastrous result that ready-mixed suppliers would be able to escape with impunity by supplying concrete of lower grades or inferior quality, leaving the building owners and occupiers of buildings to suffer the consequences of any collapse of buildings with no recourse or remedy whatsoever against the concrete suppliers…”
The only test of concrete strength
In short, the only acceptable test of concrete strength would be by way of laboratory testing of concrete cubes.
In order to prove that concrete supplied is of the requisite strength or otherwise, a party must:
- appoint an independent third party concrete laboratory tester;
- the tester must collect samples and properly document his process to ensure that the correct samples are taken;
- it does not matter that the tester does not have the requisite academic qualifications if he has many years of relevant experience. In this case, a company with 30 years of track record and a witness with 40 years of practical experience (but without academic qualifications) were deemed to be acceptable experts.
Conclusion
A ready-mixed concrete supplier ought to carry out cube tests on the concrete supplied in order to prevent a delayed claim such as in this case where the claim was mounted 2 years after supply. If the sample cubes were taken at the batching plant, then there must be sufficient and proper documentation to show that the correct batch of concrete was tested.
A purchaser would do well to ensure that cube samples are taken of every batch of concrete supplied and sent for testing. If cracks were to appear subsequently, then the purchaser could undertake testing at that point in time. However, the purchaser would be disadvantaged if there were contemporaneous tests carried out.