Muirhead v Kingborough Council (No 2) - [2000] TASSC 127

[2000] TASSC 127

CITATION: Muirhead v Kingborough Council (No 2) [2000] TASSC 127

PARTIES: MUIRHEAD, Robert John Barker

MUIRHEAD, Angela Kathleen
v
KINGBOROUGH COUNCIL

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  1424/1996
DELIVERED ON:  15 September 2000
DELIVERED AT:  Hobart
HEARING DATE:  27, 28 July 2000
JUDGMENT OF:  Cox CJ

CATCHWORDS:

Damages - Measure and remoteness of damages in actions for tort - Measure of damages - Damage to land and buildings - Negligence of council causing landslip - Method of assessment - Notional value of property as at the date of trial to be compared with actual value of property - Nature of damages recoverable for vexation and distress.

Wollongong City Council v Fregnan [1982] 1 NSWLR 244; Rentokil Pty Ltd v Channon (1990) 19 NSWLR 417; Campbelltown City Council v Mackay & Anor (1988) 15 NSWLR 501, referred to.
Aust Dig Damages [29]

REPRESENTATION:

Counsel:
             Plaintiffs:  S P Estcourt QC
             Defendant:  G L Sealy, J Walters
Solicitors:
             Plaintiffs:  Murdoch Clarke
             Defendant:  Piggott Wood & Baker

Judgment Number: [2000] TASSC 127
Number of paragraphs: 16

Serial No 127/2000
File No 1424/1996

ROBERT JOHN BARKER MUIRHEAD and
ANGELA KATHLEEN MUIRHEAD
v KINGBOROUGH COUNCIL (NO 2)

REASONS FOR JUDGMENT COX CJ

15 September 2000

The issue of liability in this action was determined in November 1997 when I gave judgment for the plaintiffs for damages to be assessed for the loss occasioned to them by the defendant's negligence in causing a concentration of storm water to be deposited onto land adjacent to that of the plaintiffs. In the result, landslips occurred and a large part of the plaintiffs' land, which runs to high water mark on the River Derwent, subsided. The detailed findings are recorded in an unreported judgment 132/1997. My task now is to assess the damages.

The plaintiffs have continued to reside in their home, which is built on a block at 20 Karingal Court, Taroona. It is an attractive and substantial building which they purchased in December 1991 to accommodate their four children, two of whom were then at University and the other two at school, and alterations were effected to the property so as to provide self-contained accommodation for Mrs Muirhead's mother. Two of the children have now left home, but return to reside there for about three months of the year. It commands a fine view of the river and until the subsidence occurred, the site had the added attraction of private access to the beach where the plaintiffs had a boat of which they made extensive use. Access was obtained down a steep and winding path below a fenced-in level lawn area to the east of the house at the top of a 10 metre escarpment which extends behind Nos 20 - 24 Karingal Court.

In about the middle of March 1996 during heavy rainfall, a landslip occurred immediately below a storm water outfall at No 24 Karingal Court. The use of this outfall had been actively…

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

Case: [2000] TASSC 127
Decision Date: 15 September 2000

CaseChat Overview and Summary

The plaintiffs in Muirhead v Kingborough Council (No 2) sought damages for the loss of value of their property and for the distress and inconvenience caused by a landslip resulting from the defendant's negligence. The Supreme Court of Tasmania assessed the damages, comparing the notional value of the property as at the date of trial with its actual value. The court found the notional value of the property to be $365,000, and its actual value, considering the landslip and potential for further subsidence, to be $182,500. Additionally, the plaintiffs claimed damages for vexation and distress caused by the landslip, which the court awarded at $10,000 each. The plaintiffs also sought damages for relocation expenses, which the court rejected, as the plaintiffs were not compelled to move and the damages awarded already compensated for the loss of property value and distress.

The court's judgment was that the plaintiffs should receive damages of $202,500, which includes $182,500 for the loss of property value, and $10,000 each for distress and inconvenience. The court rejected the claim for relocation expenses, as the plaintiffs had not been forced to vacate their home and the damages awarded already compensated for the loss of property value and distress. The court found that the property retained a substantial value despite the damage and risk of further damage, and that a prudent purchaser would accept the risk involved and purchase the property at a discounted price.

Orders