Kirkby v Coote

Case [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…

Continue reading Kirkby v Coote

Sign in free to access the full text

Details
AGLC
Kirkby v Coote [2006] QCA 61
Case
[2006] QCA 61
Decision Date

CaseChat Overview and Summary

Kirkby v Coote involved a dispute between the appellants, who designed a pole house for the respondents, and the respondents, who were the owners of the house. The house was built on steeply sloping land and some of its footings subsided and failed following heavy rain. The respondents sued the appellants for damages for negligence. The primary issue before the court was whether the trial judge erred in assessing damages on the basis of the reasonable cost of demolition and reconstruction of the house. The appellants did not challenge the finding of negligence but contested the assessment of damages.

The court considered the legal principles governing the measure of damages for negligence. It noted that the trial judge had assessed damages based on the reasonable cost of demolition and reconstruction, which was the appropriate measure of damages for damage to land and buildings. The court also examined the adequacy of the footings and whether the risk of failure of the remaining footings was foreseeable. The court found that the trial judge's assessment of damages was not erroneous, as the risk of failure of the remaining footings was foreseeable and the cost of demolition and reconstruction was a reasonable measure of damages.

The court held that the trial judge had not erred in assessing damages on the basis of the reasonable cost of demolition and reconstruction of the house. The court found that the risk of failure of the remaining footings was foreseeable and that the cost of demolition and reconstruction was a reasonable measure of damages. The appeal was dismissed, and the appellants were ordered to pay the respondents' costs of the appeal.

1 Kirkby v Coote [2022] WASCA 38 at [11] per King J.
2 Ibid at [11].

Orders

Orders of the court

Appeal dismissed1.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.