Lombardi v Holroyd City Council

This matter concerned an appeal from a decision of the primary judge regarding liability for subsidence of a footpath. The appellant, Lombardi, had sued both Holroyd City Council and AGL. The dispute centred on whether AGL's excavation and backfilling activities, or an pre-existing two-metre deep pit to the north of the excavation, or a combination of factors, caused the subsidence.

The legal issues before the appellate court were whether the primary judge had erred in finding that the appellant had failed to prove that AGL's actions were the sole or contributing cause of the footpath subsidence, and whether the primary judge had erred in finding that the Council was not liable. Specifically, the court considered whether the primary judge had made an appealable error in assessing the expert evidence regarding causation and in determining the scope of the issues fairly before the court.

The court reasoned that the primary judge was entitled to infer that AGL had excavated a pit of approximately 700-850 millimetres, and that a separate, deeper two-metre pit existed to the north. While expert opinions suggested that deficiencies in backfilling and water ingress caused subsidence, they did not clearly distinguish between the AGL pit and the pre-existing pit, nor identify the source of the water. Consequently, the primary judge was not satisfied that the subsidence was due to AGL's inadequate backfilling. The court found no appealable error in the primary judge's assessment of the evidence, including the possibility that water ingress was facilitated by AGL's work on gas pipes, as this basis of liability was not adequately supported by expert evidence. The finding of no liability against AGL was also fatal to the Council's liability, as no alternative basis for the Council's responsibility was established.

The appeal was dismissed with costs.