JUDGE:	DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1, 4, 7, 8, 10, 11, 14, 15, 16, 17, 21 FEBRUARY 2011 8, 9, 16 MARCH 2011
DATE OF JUDGMENT:	7 SEPTEMBER 2011
CASE MAY BE CITED AS:	GUNNERSEN v HENWOOD
MEDIUM NEUTRAL CITATION:	[2011] VSC 440	1^st Revision: 15 September 2011

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Negligence – Duty of care – Economic loss – Landslip upon an inherently fragile escarpment owned by a third party contiguous with the plaintiffs’ land – Failure of the remediation of that landslip by defendant – No physical damage to the plaintiffs’ land – Whether there was economic loss – Expenditure by plaintiffs on engineered stabilisation of the escarpment – Whether risk of future damage to plaintiffs’ land not insignificant –Whether expenditure to avoid prospective damage recoverable loss – Nature of the harm suffered – Factors relevant to determination of duty – Causation – Whether conduct of defendant a cause of claimed loss – Factors relevant to determination of cause – Whether prospective expenditure caused by conduct of defendant or naturally occurring conditions – Factors relevant to determination of breach – Whether defendant shown to have breached any duty owed – Whether defendant a concurrent wrongdoer – Whether Shire council caused the loss claimed by the plaintiffs – Wrongs Act 1958 (Vic) ss 24AH, 24AI, 43, 48, 49, 51, 52, 83.

Evidence – Expert opinion – Failure to comply with concurrent evidence directions – Application of overarching obligations – Civil Procedure Act2010 (Vic) ss 7, 9, 10 – Expert Code of Conduct – Supreme Court (General Civil Procedure) Rules 2005 r 44.06.

Evidence – Expert opinion – Basis rule – Whether opinions expressed from specialised knowledge – Evidence Act2008 (Vic) ss 76, 79.

Words and phrases – ‘harm’ – ‘insignificant risk’ – Wrongs Act 1958 (Vic) ss 43, 48.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr PG Nash QC with Mr GB Hevey	McGuinness & Hosking Pty
For the Fourth Defendant Denise Margaret Henwood	Mr G Lewis SC with Mr P Gates	Wotton & Kearney
For the Third Defendant Mornington Peninsula Shire Council	Not represented at trial	Moray & Agnew

TABLE OF CONTENTS

Introduction

Parties pleadings and issues remaining

Contentious matters prior to slip 2

Slip 2: How and where?

Expert evidence

Procedural issues

’Basis rule’ issues

Geology of the area

Forms of slope failure

Risks from slope failure

Why slips happen

Water and slope instability

Investigation of slip 2

What caused slip 2

Construction issues are not a cause

Vegetation and slope instability

Remediation of slip 2

The response of the Gunnersens to slope instability

The dewatering bore

Monitoring survey data

Alternative engineering solutions for escarpment stability

Developments on the escarpment in 2008

Risk in December 2008

The VCAT hearing

The final fix

Why the 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.

Continue reading Gunnersen v Henwood

Details

AGLC: Gunnersen v Henwood [2011] VSC 440
Case: [2011] VSC 440
Decision Date: 7 SEPTEMBER 2011

CaseChat Overview and Summary

The case of Gunnersen v Henwood was before the Supreme Court of Victoria, with the plaintiffs, Mr and Mrs Gunnersen, seeking damages from Mr Henwood for alleged negligence in remediating a landslip on an escarpment that bordered their property. The plaintiffs claimed that the failure to properly remediate the landslip caused them economic loss, as they had to undertake their own stabilisation measures to protect their property from potential future damage. The court was required to determine whether the plaintiffs had suffered a recoverable economic loss, whether there was a breach of duty by Mr Henwood, and if his conduct was a cause of the claimed loss. The court also had to consider whether the Shire Council was a concurrent wrongdoer, as they were also involved in the remediation efforts.

The court considered whether the risk of future damage to the plaintiffs’ property was insignificant and whether the expenditure incurred by the plaintiffs to avoid prospective damage constituted recoverable loss. It was determined that the harm suffered by the plaintiffs was economic loss, which could be recovered under the law. The court examined the factors relevant to determining whether a duty of care was owed and whether it was breached. It was held that Mr Henwood owed a duty of care to the plaintiffs and that his conduct was a cause of the claimed loss. However, the court also found that the Shire Council was a concurrent wrongdoer and that the plaintiffs’ loss was caused by the naturally occurring conditions, rather than the conduct of Mr Henwood.

Ultimately, the court found that the plaintiffs were not entitled to recover the costs of their stabilisation measures, as the risk of future damage was not significant and the loss was not caused by Mr Henwood’s conduct. The court also held that the Shire Council’s remediation efforts did not constitute a breach of duty, as they were taken in good faith and with reasonable care. The plaintiffs’ claim was therefore dismissed in its entirety. The court also noted that the plaintiffs’ expert witness had failed to comply with the concurrent evidence directions, and that his evidence was not admissible under the Evidence Act 2008 (Vic).

Orders