DELTA THEATRE CASE.

New Zealand Herald, Volume LXV, Issue 20087, 26 October 1928, Page 17

DELTA THEATRE CASE.

QUESTION OF NEGLIGENCE

FIRST POINT FOR DECISION

REFERENCE TO OLD WELL. I*or tho third day of the hearing, Mr, Justice Blair was engaged yesterday in hearing evidenco in tho claims for damago to tho Delta Theatre, New Lynn, through tho collapse last May of a sewerago tunnel that was being driven close to (ho building. George Vincent Mullengor, owner of the theatre (Mr. Finlny) sues tho New Lynn lown Hoard (Mr. Northcroft) and also William Stevenson and Son, contractors under tho board for tho tunnel work (Messrs. Lowrio and Inder), claiming £1245 damages; and Howard Oakley Browne, lessee of tho theatre (Mr. Leary), claims from the same defendants £2OBO under various headings, iind £SOO as general damages.

Tho cross-examination of F. E. Powell, civil engineer, was continued at considerable length. In reply to Mr. Northcroft, witness said he thought the present piling system should not be permanent. Between May 25 and Juno 7 tho wall had moved slightly. Lack of support from one pile where (ho headstock was not supporting tho building, would create extra strain. A dangerous position arose from leaving this pile without support. The development of events had proved that witness was justified in refusing to lake responsibility for reopening tho theatre. Tho country penetrated by the tunnel was a weak sandstone in the neighbourhood ot tho tunnel mouth, but in tho vicinity >f the theatre it gave way to a wet pug. FOl that reason, and also because the work was approaching tho theatre, a closer system of timbering should have boea adopted. All engineers and contractors feared trouble after last summer's dry spell, and as a matter of fact many slips took place. After such long spells, ■ rainwater penetrated to a great depth into clay formations. It was to tho credit of the strength and stability of tho hall building that it held together as it did although partly unsupported. The Cost of Repairs.

To Mr. Lowrie: Pcrmafient repairs in May, when only temporary work was carried out. would have cost about £IOOO for the engineering portion, but would,now cost £]soo. This was apart from the necessary achite?uiral work. Re-examined by Mr. I'"inlay, witness said it was not easy m May to foresee the amount of extra work that had now to be done. William Thomas, formerly inspector to the town board, was recalled and said the construction at certain piers of the building without the nine inches of enlargement recommended by Mr. Powell, was carried out with his full and consent. lie had, however, no recollection of telling Mr. Powell the work had been done in accordance with his recommendation.

Soon after tho luncheon interval His Honor suggested—partly in view of the facts that a largo mass of evidence was still in sight and that the criminal sessions must begin next Tuesday—that counsel should concentrate attention upon the question whether or not tho subsidence of tho tunnel was due to negligence, leaving the question of damages for after-con-sideration, in the event of negligence being hold to lie proved. To this course counsel for all parties agreed. Mr. Finlay therefore closed his case as regards the point of negligence. Mr. Leary. in opening the case for the plaintiff Browne, intimated his intention [o modifv his client's claim for damages. One clause of the defence filed by the Town Board alleged tho damage was due to structural defects in the building and foundations. His Honor said this question was one of those deferred until that of negligence as to the tunnel was determined. Existence of Well Not Known.

Mr. Northcroft said tho Town Board's attitude was that tho damage to the building arose from certain structural defects, and that if it had been properly erected the merely vertical subsidence ot tho wall would not have affected it. Mr. Leary quoted another ground of defence, that the collapse in the tunnel was partly due to water from tho roof of tho theatre, and water from a broken pipe, being allowed to flow into the soil. He also protested against the late emergence, during that day s evidence, of hints of contribution to tho causes of subsidences bv an old well, the existence of which had hitherto been undisclosed. His client had known nothing whatever about the water pipe until after the collapse, and one witness would say she fust heard tho hiss of escaping water while tho work of shoring up the wall was in progress. It would also be shown that the escape was stopped within eight days. Speaking of the contractors, Mr. Leary said he wished to pay a tribute to Mr. Stevenson inasmuch as, when tho cracking of tho ground was newly discovered, ho showed readiness to do all that appeared necessary. Miss Collard, daughter of the baker whoso shop is next door to tho theatio, gave evidence as to when water first escaped from the pipe. Howard Oakley Browne said he first saw fissures forming on tho Collard propertv on Mnv 13, and ho afterwards heard of the collapse in tho tunnel. Subsidence continued for about ten weeks. Neither Mr. Stevenson nor any official of the board had ever, as far as he remembered, mentioned to him any old well as a factor contributing to the . collapse. Referring to timbers taken from the tunnel, witness said some of Iho joggles showed saw-cuts deeper than the piece of wood taken out. Suggested Effect of Well.

Mr. Northcroft, in outlining tho. case for the Town Hoard, said that with regard to the tunn.'l contract the hoard acted entirely on tho advice of competent, engineers, with the view ot safeguarding tho interests of its townspeople. Tho contractors were men who had a reputation for faithful work and for skill, arid they had experienced overseers in supervision of the tunnel. In the driving work, tho character of tho country did not substantially alter until tho faco was past tho point at which the subsidence actually occurred. Expert calculations showed the weight of the building added only the equivalent of three feet of overburden to the tunnel. The engineers and contractors were only called upon to provide in the timberings for tho support of tho rock driven through, and not for any possiblo broken ground from a cause nearer tho surface.

Evidence would 1)0 led to indicate ihero was an old well from 20ft. to 25ft. in depth somewhere in tho vicinity of tho tunnel. This well had been filled in with debris for many years, and its position could riot now bo exactly located. Tho suggestion was that it had formed virtually an underground reservoir of water Whether that water came from the broken pipe, tho roof of tho theatre, or natural accumulation in tho well, was immaterial, but tho well had become a reservoir above tho tunnel, arid the water with which its debris was sodden would tend to break through. It would bo shown tho tunnel was constructed and supported in conditions that would ordinarily be safe and proper, and his clients' contention was that the collapse was entirely duo to tho gratuitous preseneo of tho well.

T. R. V. Gulliver, civil engineer, with 21 years' experience, and member of tho firm of Gray and Gulliver, engineers to tho Town Board, said the country which set in as the tunnel advanced was a stiff, sandy clay. Ho considered tho contractors' system of timbering was adequate. If there was a disused well in tho' vicinity that would account for tho collapse. The case was adjourned until to-day.