PARTIES: M & E M Hull Pty Limited v Steven and Rita Thompson & Anor
JUDGMENT OF: Sheller JA Davies AJA Rolfe AJA
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): DC 39/99
LOWER COURT JUDICIAL OFFICER: Delaney DCJ
COUNSEL: Appellant - R F Margo SC, Mr G J Durie Respondents - T K Tobin QC, Mr A J Black
SOLICITORS: Appellant - Warren F Ball & Co Respondents - Mark Mulock & Co
CATCHWORDS: TORTS - negligence - where failure to build concrete slab of specified thickness resulted in damage to buildings - whether proper basis for damages demolition and reconstruction or repair and diminution in value - whether trial Judge gave adequate reasons - appeal dismissed
IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
CA 40988/2000
DC 39 of 1999
SHELLER JA DAVIES AJA
ROLFE AJA
15 October 2001
M & E M HULL PTY LIMITED v STEVEN AND RITA THOMPSON & ANOR
TORTS – negligence – where failure to build concrete slab of specified thickness resulted in damage to buildings – whether proper basis for damages demolition and reconstruction or repair and diminution in value – whether trial Judge gave adequate reasons – appeal dismissed.
The appellant entered into a contract with the first respondent to construct a two storey house and garage. The building specifications required the appellant to construct a 130mm thick concrete slab at ground level, as the buildings were to be erected on an essentially clay surface. The appellant failed to do this, which resulted in cracking and other damage to the buildings. The respondents sued the appellant claiming damage based on the cost of repairing the premises and diminution in value. At trial the respondents amended the Statement of Claim to claim damages on the alternative basis of the cost of demolition and reconstruction of the dwelling. The appellant did not apply for an adjournment or seek leave to cross-examine the respondents’ expert witnesses. Accordingly, the case proceeded on the basis of various experts’ reports on which there was no cross-examination.
The trial Judge found in favour of the first respondent and awarded damages on the basis of demolition and reconstruction. The issues on appeal were whether his Honour was correct in awarding damages on that basis and whether he gave sufficient reasons for that conclusion.
HELD per Rolfe AJA (Sheller JA & Davies AJA agreeing):
Prima facie if there is no cross-examination of an expert, there is no basis for a Judge not to accept the unchallenged evidence. This is subject to certain qualifications…
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
AGLC
Hull v Thompson [2001] NSWCA 359
Case
[2001] NSWCA 359
Decision Date
CaseChat Overview and Summary
This appeal concerned a dispute between Hull (appellant) and Thompson (respondents) regarding alleged negligence in the construction of a concrete slab. The respondents claimed that the failure to build the slab to the specified thickness resulted in damage to their buildings. The matter came before the court on appeal from a decision of the trial judge.
The central legal issues before the court were whether the proper basis for assessing damages was the cost of demolition and reconstruction, or the cost of repair combined with a diminution in value. Additionally, the court considered whether the trial judge had provided adequate reasons for their decision.
The court's reasoning focused on the expert evidence presented, particularly from Mr Hall. Mr Hall's reports detailed significant defects in the slab, including it being undersized and lacking required stiffening beams, contrary to Australian Standards. He concluded that while some rectification work could be undertaken to minimise further movement, it was not practical or economically feasible to overcome the inherent defects without demolishing and reconstructing the house. The court found that the trial judge had adequately considered this evidence and the principles of assessing damages in negligence cases, which involve placing the plaintiff in the position they would have been in had the tort not occurred.
The appeal was dismissed with costs.
Orders
Orders of the court
Appeal dismissed with costs
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
I shall now examine the evidence of the experts.THE EXPERT EVIDENCE The principal expert evidence for the respondents was contained in 3 reports from Mr Hall of Kneebone, Beretta & Hall Pty Ltd dated 10 March 1997, 14 July 1998 and 13 September 2000 and in a report from Mr Gaskell of David Gaskell & Associates dated 29 February 2000. In his report of 10 March 1997 Mr Hall reported on the cracking in the premises and criticised the absence of internal stiffening beams below load bearing walls. He said the purpose of them was to control slab movement in reactive clay soils. He suggested that the appellant be asked what rectification it would carry out and that an investigation of the sub floor soil be conducted by a geo-technical engineer to determine if the ground had reached its optimum moisture level, so that it could be decided if further swelling of the soil would be likely. He also considered an opinion should be sought from the geo-technical engineer as to the work thought necessary to stabilise the foundation soil. He concluded:“No rectification of the cracks in the plasterboard or floor tiles is recommended until it can be determined that the extent of further movement will be minimal”. On 14 July 1998, he wrote that the design did not comply with a certain standard; that levels taken by a surveyor indicated approximately 20mm upheaval along the centre wall, which was also indicated by the extent of cracking; that measured slab thickness at core holes indicated up to 30mm undersize; and that a geo-technical report indicated fill below the slab to have been poorly compacted, although movement in the floor at that stage showed upheaval rather then settlement. He then set out rectification work, which he thought to be appropriate and concluded:“On completion of under pinning work (full details to follow) the damage caused to the internal frame work and plasterboard lining can be repaired. A full specification of rectification work is being prepared and will be available in the next few days when a Builder’s quotation on the work can be obtained”. In his report of 13 September 2000 he referred to an inspection made on 10 August 2000 to reassess the condition of the premises and determine a scope of works for rectification. He considered that generally they were in a similar condition to that noted at the time of his first inspection in February 1997, although he noted certain other relatively minor defects. He summarised the structural defects existing in the house and noted certain changes in position from a survey report. He then set out both structural and non-structural rectification work, at the conclusion of which he stated:“It should be noted that the structural rectification work recommended is to provide additional support to minimise the extent of further movement where damage to the house has occurred. The extent of further movement due to the uncompacted underfloor filling, the reduced slab thickness from the Engineering design and due to the omission of internal stiffening beams as required by the Australian Standard “Residential Slabs and Footings Code AS2870-1988” cannot be predicted. It is not practical or economically feasible to overcome these built in defects without demolition and reconstruction of the house”. (My emphasis)