Gunnersen v Henwood

The plaintiffs, Gunnersen, sought compensation from the defendant, Henwood, for economic loss they suffered due to a landslip on an escarpment that was adjacent to their property. The landslip occurred on land owned by a third party, and the plaintiffs alleged that Henwood's failure to remediate the landslip caused them economic loss. The case was heard in the Supreme Court of Victoria. The primary issue before the court was whether the plaintiffs could recover economic loss due to the risk of future damage to their property caused by the landslip, which was not physically damaging at the time. The court also needed to determine if Henwood had breached a duty of care owed to the plaintiffs, and if so, whether the breach caused the claimed loss. Additionally, the court considered whether Henwood was a concurrent wrongdoer, and if the Shire Council, which owned the land where the landslip occurred, was also responsible for the plaintiffs' loss.

The court found that the plaintiffs could recover economic loss due to the risk of future damage to their property, provided that the risk was not insignificant. The court held that the risk of future damage to the plaintiffs' property was not insignificant, and therefore, the plaintiffs' expenditure on engineered stabilisation of the escarpment was a recoverable loss. The court also held that Henwood had breached a duty of care owed to the plaintiffs by failing to remediate the landslip. The court found that Henwood's conduct was a cause of the claimed loss, and that the prospective expenditure was caused by Henwood's conduct rather than naturally occurring conditions. The court further held that Henwood was a concurrent wrongdoer, and that the Shire Council was also responsible for the plaintiffs' loss.

The court ordered Henwood to pay damages to the plaintiffs for the economic loss they suffered due to the landslip. The court also held that the Shire Council was jointly liable with Henwood for the damages awarded to the plaintiffs. The court found that Henwood had failed to comply with concurrent evidence directions and the overarching obligations under the Civil Procedure Act 2010 (Vic), and that the expert opinions provided by the parties did not comply with the Evidence Act 2008 (Vic). The court held that the expert evidence was not admissible, and that the plaintiffs' claims were not supported by the evidence. The court ordered the parties to pay their own costs of the proceedings.