Bijok v S J Weir P/L - [2011] SADC 20

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
BIJOK & ANOR v S J WEIR P/L
[2011] SADC 20
Judgment of His Honour Judge Boylan
23 February 2011
TORTS - NUISANCE
TORTS - NEGLIGENCE
Defendant builder excavated next to plaintiffs' boundary without adequate retaining structure. Plaintiffs' land subsided causing damage to plaintiffs' buildings. - Whether builder had constructed retaining wall in accordance with engineer's designs - whether weight of building on plaintiffs' land caused subsidence.
Held, defendant builder solely liable in both nuisance and negligence - no apportionment of liability.
Walker v Adelaide City Corporation (2004) 88 SASR 225 at 254 at [256] ff per Perry J, applied.

BIJOK & ANOR v S J WEIR P/L
[2011] SADC 20

Parts of John and Maria Bijok’s premises, especially their carport and driveway, were damaged while the defendant builder was excavating on land next door. Mr and Mrs Bijok now claim damages from the building company, which denies liability, claiming that the engineers who designed retaining walls used during the excavation works are to blame.
In my judgment, the builder is solely liable for the damage and I now set out my reasons for reaching that conclusion.
The Site
Mr and Mrs Bijok live at 2A King Street, Glenelg. Their house is in the section of King Street which runs east to west between the Patawalonga and North Esplanade. Before it was built up, the area consisted mainly of sand dunes. Accordingly, when the Bijoks built their house in 1967, the block was retained by a wall in a square U shape on all sides except for the frontage to King Street. The Bijoks were well aware when they built their house that the sandy soil could be unstable.
The Bijok house sits in the middle of the block. On the eastern boundary their concrete driveway runs from King Street up to a brick carport which has a concrete floor. South of the carport is another short section of driveway and then a brick garage. The driveway, carport and garage are slightly higher than the land immediately to the east.
In 2002 developers acquired the properties between the Bijoks’ and the Patawalonga and built there an apartment building named ‘The Moorings’, which was completed at the end of 2004.
The developers were Patawalonga Holdings Pty Ltd and ABA Glenelg North Pty Ltd. Both of those companies have earlier been defendants in these proceedings but Notices of Discontinuance were filed. The builder was S J Weir Pty Ltd which is the remaining defendant, its relevant director being Mr Robert Weir. His site manager was Mr Andrew Thiele. The engineer was Meinhardt PT Design Pty Ltd, its relevant director being Mr André Vreudenburg who was assisted by another engineer, Mr Daniel Lee.
The Central Issue
The plans for ‘The Moorings’ included a basement carport with an access ramp adjacent the Bijoks’ eastern boundary. Construction of the ramp required extensive excavation along that boundary which, in turn, required a temporary retaining structure to prevent movement of soil…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] SADC 20
Decision Date: 23 February 2011

CaseChat Overview and Summary

In Bijok v S J Weir P/L, the plaintiffs sought damages for subsidence and structural damage to their property, allegedly caused by the defendant builder's excavation activities. The case was heard by the Supreme Court of Victoria. The plaintiffs contended that the defendant had excavated next to their property boundary without implementing a proper retaining structure, resulting in the land subsiding and damaging their buildings. The defendant argued that it had followed the engineer's designs and that the subsidence was due to the weight of the building on the plaintiffs' land.

The legal issues before the court were whether the defendant had constructed the retaining wall in accordance with the engineer's designs and whether the weight of the building on the plaintiffs' land contributed to the subsidence. The court needed to assess the adequacy of the retaining wall and the cause of the subsidence to determine liability. The court examined the evidence regarding the design specifications, the builder's actions, and expert opinions on the cause of the subsidence.

The court found that the retaining wall was not constructed as per the engineer's designs, leading to the subsidence of the plaintiffs' land. The court also determined that the weight of the building on the plaintiffs' land did not cause the subsidence. Consequently, the builder was held liable for the damage caused to the plaintiffs' property. The court ordered the builder to pay damages to the plaintiffs for the subsidence and structural damage to their buildings. The exact amount of damages was to be determined in further proceedings.

Orders