Platform on concrete and steel in construction
In my previous columns, I have devoted considerable attention to case law regarding ‘pop-outs’ in precast concrete elements. This time, I will discuss a recent ruling by the Arbitration Board for Construction Matters (No. 37,937, June 2026) regarding another common defect in concrete products: spalling/‘scaling.’.
In this case, the contractor built a parking garage on behalf of the client. The parking garage has an (uncovered) parking deck that is accessible via a ramp. The parking deck consists of steel columns and beams on which concrete elements have been laid. The top layer of those concrete elements began to show signs of damage (flaking/scaling) within approximately nine months after the structure was put into use—following a period of freezing temperatures. The client demanded that the contractor repair the parking deck by replacing the concrete elements. The contractor did not comply with this demand, and the client subsequently had the parking deck repaired by another contractor. This repair consisted of applying a new top layer/coating. The client is seeking reimbursement of the repair costs it incurred in the amount of €273,000, arguing that the contractor delivered a defective parking deck.
Both the contractor and the client have commissioned several expert reports and repair recommendations. The alleged defect is described in the submitted reports as frost damage—also known as scaling—which occurs primarily on horizontal surfaces that are regularly exposed to water saturation in combination with freezing and de-icing salts. The arbitrators, in agreement with the experts consulted in this case, are of the opinion that some degree of scaling will always occur when concrete is used in outdoor conditions. In addition to weather conditions, the extent to which this occurs is significantly influenced by the floor’s design, the structure of the concrete surface, and the manner of use. The latter includes measures such as snow removal to prevent water saturation and the use of de-icing salts. With a sufficient number of freeze-thaw cycles, saturated concrete—regardless of its quality—will eventually always sustain freeze damage. This means that the occurrence of scaling does not necessarily indicate a defect. A defect can only be said to exist if the extent of the scaling—considered in the context of the expectations the customer may have had under the contract and the other factors contributing to its occurrence—is excessive.
The arbitrators are of the opinion that, given that the client referred to a reference project in which scaling occurs only to a limited extent, the client was entitled to have certain expectations regarding the extent to which scaling would occur in the work at issue. Taking into account, among other things, the comparison of the photographs of the reference project with those of the work performed by the contractor, the arbitrators find that the scaling in the present case is such that those expectations have not been met. To that extent, there has been a breach of contract.
Based on that ruling, the client is not yet entitled to compensation for the full amount of €273,000 that it claimed. The arbitrators have determined that this defect would have been sufficiently remedied had a treatment with Hydro Seal BE been carried out after the first winter and repeated after approximately four years. Hydro Seal BE is a high-quality silicate-based densifying agent that penetrates deep into the concrete and forms a chemical bond with the substrate. Because the pore structure becomes denser and capillary action is reduced, the absorption of water and harmful salts into the substrate is minimized. This helps slow down aging processes. Given the nature and scope of such repair work, the arbitrators awarded ‘only’ €40,000, which is roughly 1/7 of the claimed repair costs. It can therefore be said that this case essentially has only losers.
