Kirkby and Anor. v Coote - [2005] QSC 197

SUPREME COURT OF QUEENSLAND

CITATION:

Kirkby & Anor. v. Coote & Ors [2005] QSC 197

PARTIES:

SYDNEY KIRKBY and JUDITH LANG
(plaintiffs)
v.
JOHN WALTER COOTE
(first defendant)
and
JOHN TITMUS
(second defendant)
and
ROWEN MEYER & ASSOCIATES PTY LTD
ACN 055 454 012
(third defendant)

FILE NO:

4250 of 2003

DIVISION:

Trial

PROCEEDING:

Claim

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

30 June 2005

DELIVERED AT:

Brisbane

HEARING DATE:

14, 15, 16, 17, 18 February; 10, 30 March 2005

JUDGE:

Helman J.

CATCHWORDS:

TORTS – NEGLIGENCE – DUTY OF CARE – DAMAGES – poles of house built on steeply-sloping land settled causing damage to house - where second defendant engineer failed to provide footing design in accordance with geologist’s report - whether risk that all footings inadequate and house at risk of suffering further substantial damage if another landslip – whether defect can be rectified by underpinning whole of house or demolishing and rebuilding it - whether third defendant vicariously liable as employer of second defendant at time footings certificate provided

Bellgrove v. Eldridge (1954) 90 C.L.R. 613
Lyons v. Jandon [1998] WASC 224
Malec v J.C. Hutton Pty Ltd (1990) 169 C.L.R. 638

London Congregational Union Inc. v. Harriss & Harriss [1985] 1 All E.R. 335; [1988] 1 All E.R. 15

COUNSEL:

Mr T. Matthews for the plaintiffs
Messrs K.C. Fleming Q.C. and S.T. Farrell for the defendants

SOLICITORS:

Dibbs Barker Gosling for the plaintiffs
Barry & Nilsson Lawyers for the defendants

In October 1993 the building of a still-standing, three-storey timber-framed pole house began on steeply-sloping land owned by the plaintiffs at 13 Rosewood Rise, Flaxton, near Mapleton, in the Maroochy shire: lot 6 on registered plan no. 838739 in the County of March, Parish of Kenilworth. On 28 April 1994 the house had reached the stage of practical completion and the plaintiffs moved in (and have lived there ever since). All went well until 9 February 1999 when, after 1,180 mm of rain had fallen at the plaintiffs’ property in a little over a week, a loud noise was heard and it was found that a number of footings on the south-eastern, downslope, side of the house had subsided causing substantial damage to the house. Eleven footings had failed: those of poles numbered 2 to 8 inclusive and of steel posts immediately inside poles numbered 2, 3, 4 and 6 on a drawing (no. 2000-066-5) dated 10 January 2001 prepared by Hughes, Beal & Wright Pty Ltd, consulting engineers: exhibit 4, p. 251. Photographs of the house, which I viewed in the presence of counsel on

15 February 2005, can be seen in exhibits 12 and 13. It is at the end of

Rosewood Rise. A steep driveway leads down to it. Below the house there is a State forest. The Flaxton area is on the crest of a line of steep ridges and is subject to

high-intensity short-duration summer storms.

Mr Kirkby, a retired mapping surveyor, and his wife Ms Lang, intend living at

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 Kirkby and Anor. v Coote

Details

AGLC: Kirkby and Anor. v Coote [2005] QSC 197
Case: [2005] QSC 197
Decision Date: 30 June 2005

CaseChat Overview and Summary

Kirkby and Anor. v Coote involved a dispute between the plaintiffs, the Kirkbys, and the defendants, including Coote and others, over damage to a house caused by landslip. The plaintiffs' house was built on steeply-sloping land, leading to settlement and damage. The central issue was whether the second defendant, an engineer, breached their duty of care by not designing footings in accordance with a geologist’s report. Additionally, the court needed to determine if the risk of further substantial damage due to an inadequate footing design could be rectified by underpinning the house or by demolishing and rebuilding it. Finally, the court had to decide if the third defendant, as the employer of the engineer, was vicariously liable for the engineer’s actions when providing the footings certificate.

The court examined the relationship between the parties and the engineer's duty of care. It found that the engineer's failure to follow the geologist’s recommendations constituted a breach of duty, given the risk of further damage from a landslip. The court held that the defect could potentially be rectified by underpinning the entire house. However, the court found the third defendant not vicariously liable, as the engineer was not acting within the scope of their employment when the footings certificate was provided.

In summary, the court found the engineer liable for breach of duty of care, held that the defect could be rectified by underpinning the house, and determined the third defendant was not vicariously liable. The court ordered the second defendant to rectify the defect by underpinning the house, and the third defendant was absolved of any vicarious liability.

Orders