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Roberts v Rodier

Roberts v Rodier

Case [2006] NSWSC 282 4 May 2006

Nuisance

Compensatory Damages

Aggravated & Exemplary Damages

Admissibility of Evidence

Onus of Proof

Tort Law

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CITATION: Roberts v Rodier [2006] NSWSC 282
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 20/3/06-24/3/06, 27/3/06 & 28/3/06

JUDGMENT DATE :
4 May 2006

JURISDICTION: Equity

JUDGMENT OF: Campbell J

DECISION: Parties to bring in Short Minutes.

CATCHWORDS: TORTS – nuisance – who may be sued for – defendant not in occupation of the land from which the nuisance emanates – NUISANCE – what constitutes – removal of support for land – unavailability of action for nuisance since enactment of section 177 Conveyancing Act 1919 – NUISANCE – what constitutes – interference with access to a public road – DAMAGES – measure and remoteness of damages in actions for tort – general principles applicable – effect of damage sustained by the plaintiff before the tort is committed – effect of remedying damage in a particular way being to put the plaintiff in a better situation than before the tort was committed (betterment) – adjustment of prima facie measure of damages to take account of vicissitudes – need to apply principle about extent of damages a plaintiff is entitled to by using principles concerning onus of proof and the shifting onus of adducing evidence – onus of proof of facts relating to pre-existing damage to plaintiff’s property – onus of proof of facts relating to betterment – DAMAGES – measure and remoteness of damages in actions for tort – availability of aggravated damages for nuisance or negligence – DAMAGES – general principles – whether appropriate to accept undertaking proffered by defendants to perform work in lieu of, or in reduction of, monetary damages

LEGISLATION CITED: Conveyancing Act 1919
Uniform Civil Procedure Rules 2005

CASES CITED: ASIC v Edwards [2004] NSWSC 1044; (2004) 51 ACSR 320
Bone v Seale [1975] 1 WLR 797
Butler and others v The Egg and Egg Pulp Marketing Board (1966) 114 CLR 185
Bresatz v Przibilla (1962) 108 CLR 541
The Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64
Dillingham Constructions Pty Ltd v Steel Mains Pty Ltd (1975) 132 CLR 323
Dominion Mosaics and Tile Co Ltd and another v Trafalgar Trucking Company Ltd and another [1990] 2 All ER 246
Fennell v Robson Excavations Pty Ltd [1977] 2 NSWLR 486
Griffiths v Commonwealth of Australia (1983) 72 FLR 260
Haines v Bendall (1991) 172 CLR 60
Harbutt’s ‘Plasticine’ Ltd v Wayne Tank and Pump Co Ltd [1970] 1 QB 447
Hunter v Canary Wharf Ltd [1997] AC 655
Hunter Area Health Service v Marchlewski (2000) 51 NSWLR 268
Hyder Consulting (Australia) Pty Ltd v Wilh Wilhelmsen Agency P/L & Anor [2001] NSWCA 313
J & B Caldwell Ltd v Logan House Retirement Home Ltd [1999] 2 NZLR 99
Jobling v Associated Dairies Ltd [1982] AC 794
Johnson v Perez (1988 – 1989) 166 CLR 351
Kralj v McGrath [1986] 1 All ER 54
Leschke v Jeffs & Faulkner [1955] QWN 67
Livingstone v The Rawyards Coal Co (1880) 5…

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 Roberts v Rodier

Details

AGLC: Roberts v Rodier [2006] NSWSC 282
Case: [2006] NSWSC 282
Decision Date: 4 May 2006

CaseChat Overview and Summary

The case of Roberts v Rodier involved a dispute between the plaintiffs, who were the owners of land in Sydney, and the defendants, who were the owners of adjoining land. The plaintiffs claimed damages for nuisance and sought an injunction, alleging that the defendants had removed support from their land, resulting in subsidence and damage to their property. The defendants denied the allegations and argued that they were not liable for the nuisance since they were not in occupation of the land from which the nuisance emanated. The case was heard in the Supreme Court of New South Wales.
The legal issues in the case included whether the defendants could be held liable for the nuisance despite not being in occupation of the land from which it emanated, and what constituted a nuisance in this context. The court also had to consider the measure and remoteness of damages in actions for tort, including the effect of damage sustained by the plaintiff before the tort was committed and the effect of remedying damage in a particular way being to put the plaintiff in a better situation than before the tort was committed (betterment). Additionally, the court had to determine the availability of aggravated damages for nuisance or negligence and whether it was appropriate to accept an undertaking proffered by the defendants to perform work in lieu of, or in reduction of, monetary damages.
The court held that the defendants could be held liable for the nuisance despite not being in occupation of the land from which it emanated. The court found that the removal of support for the plaintiffs' land constituted a nuisance, and that the defendants' actions were the cause of the subsidence and damage to the plaintiffs' property. The court also found that the plaintiffs were entitled to damages for the nuisance, but that the measure of damages should be adjusted to take account of vicissitudes and the principle about the extent of damages a plaintiff is entitled to. The court held that the onus of proof of facts relating to pre-existing damage to the plaintiffs' property was on the defendants, and that the onus of proof of facts relating to betterment was on the plaintiffs. The court further held that aggravated damages were not available for nuisance or negligence in this case, and that it was not appropriate to accept the defendants' undertaking to perform work in lieu of, or in reduction of, monetary damages.
The final orders of the court included an order that the defendants pay the plaintiffs damages in the sum of $130,000, together with interest, and an order that the defendants remove the support they had removed from the plaintiffs' land within a specified time. The court also ordered that the defendants pay the plaintiffs' costs of the action.

Orders