Kirkby v Coote

[2006] QCA 61

SUPREME COURT OF QUEENSLAND

CITATION:

Kirkby & Anor v Coote & Ors  [2006] QCA 61

PARTIES:

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

FILE NO/S:

Appeal No 6134 of 2005
SC No 4250 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

10 March 2006

DELIVERED AT:

Brisbane

HEARING DATE:

24 February 2006

JUDGES:

Williams and Keane JJA and McMurdo J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Appeal dismissed1.   

The appellants to pay the respondents' costs of the appeal to be assessed on the standard basis2.   

CATCHWORDS:

DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - DAMAGE TO LAND AND BUILDINGS - where pole house designed by appellants was built for respondents on steeply sloping land - where some of the footings of house subsided and failed following heavy rain - where learned trial judge found the appellants negligent and awarded damages to respondents assessed on basis of reasonable cost of demolition and reconstruction of house - where appellants did not challenge finding of negligence on appeal but challenged assessment of damages - where dispute over learned trial judges' finding on the adequacy of those footings which had not failed - where dispute over the risk of failure of the remaining footings - whether the learned trial judge erred in assessing damages on the basis of the reasonable cost of demolition and reconstruction

Abalos v Australian Postal Commission (1990) 171 CLR 167, cited
Bellgrove v Eldridge (1954) 90 CLR 613, applied
J-Corp Pty Ltd v Gilmour [2005] WASCA 136; FUL 60 of 2003, 27 July 2005, cited
John Pfeiffer Pty Ltd v Canny (1981) 148 CLR 218, cited
Lyons v Jandon Constructions (a firm), unreported, Supreme Court of Western Australia, No 2328 of 1997, 20 July 1998, considered
Ruxley Electronics & Construction Limited v Forsyth [1996] AC 344, considered

COUNSEL:

P H Morrison QC, with S T Farrell, for the appellants
T Matthews, with M H Hindman, for the respondents

SOLICITORS:

Barry & Nilsson for the appellants
Dibbs Abbott Stillman for the respondents

1. WILLIAMS JA: I have had the advantage of reading the reasons for judgment of Keane JA wherein all relevant facts are set out.  I agree with his reasoning and with the orders proposed, but wish to add some brief reasons for arriving at that conclusion. 

1. The learned trial judge found that “land slips are not uncommon in the steep natural and cut slopes of the area”, and that finding was not challenged. 

1. Murdoch carried out an extensive geological survey of the subject site before making his recommendations with respect to the type of foundations for the house proposed to be built on the site.  Both Murdoch reports were…