State of SA v Simionato

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SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

STATE OF SA v SIMIONATO & ORS

Judgment of The Full Court

(The Honourable Justice Debelle, The Honourable Justice Nyland and The Honourable Justice Besanko)

2 November 2005

TORTS - NEGLIGENCE

TORTS - NUISANCE

DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT

Appeal from District Court orders that appellant pay damages to respondents for damage to respondents’ dwellings – respondents’ dwellings adjoined park – appellant through its agents landscaped park with native plantings in 1988 or 1989 – park transferred to council in 1991 – respondents noticed cracking in dwellings in 1995 – cracking result of soil desiccation – respondents sued appellant and council – in preliminary judgment in District Court council held not liable by virtue of Local Government Act 1934 s 315 – no appeal against that judgment.

Questions on appeal: whether judge erred in finding that roots of plantings had penetrated soil beneath respondents’ dwellings and caused desiccation – whether judge erred in holding that appellant owed respondents duty of care in negligence – whether judge erred in finding that appellant had breached duty of care – whether judge’s orders could be upheld on alternative basis that appellant liable to respondents in nuisance – whether judge erred in relation to award of damages.

Held, dismissing appeal in case of first and second respondents, and allowing it for purposes of reducing award of damages in case of third respondent: finding that desiccation caused by encroaching roots open – no actionable nuisance established prior to transfer of land in 1991 – in those circumstances, appellant not liable in nuisance – finding that appellant owed respondents duty of care in negligence upheld – non-compliance with landscape plan – breach of duty of care – breach causative of desiccation and, therefore, of respondents’ loss and damage – first and second respondents’ award of damages for cost of remedial work and for diminution in value of dwelling upheld – third respondent's award of damages varied – investment property – remedial work would add no value to land – damages awarded for diminution in value and conveyancing costs only.

Local Government Act 1934 s 315, referred to.
Acton v Blundell (1843) 12 M & W 324; 152 ER 1223; Mayor of Bradford v Pickles [1895] AC 587; Popplewell v Hodkinson (1869) LR 4 Ex 248; Xuereb v Viola (1990) Aust Torts Reports 81-012; Chasemore v Richards (1859) 7 HL Cas 349; 11 ER 140; Butler v Standard Telephones and Cables Ltd [1940] 1 KB 399; McCombe v Read [1955] 2 QB 429; Davey v Harrow Corporation [1958] 1 QB 60; Peisley v Ashfield Municipal Council (1970) 21 LGRA 243; Barton v Chhibber (1988) Aust Torts Reports 80-185; White v Jameson (1874) LR 18 Eq 303; Richmond City Council v Scantelbury [1991] 2 VR 38; Cambridge Water Co v Eastern Counties Leather Plc [1994] 2 AC 264; Roswell v Prior (1700) 12 Mod 635; 88 ER…

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Details
Case
[2005] SASC 412
Decision Date

CaseChat Overview and Summary

The State of South Australia appealed against orders of the District Court that it pay damages to the respondents for damage to their dwellings. The respondents' dwellings were adjacent to the North-East Busway Reserve, which the appellant had landscaped with native plantings in 1988 or 1989. The appellant transferred the reserve to the council in 1991. The respondents noticed cracking in their dwellings in 1995, which resulted from soil desiccation caused by the roots of the plantings. The respondents sued the appellant and the council. The District Court found the council not liable and the respondents were awarded damages by the District Court. The appellant challenged the findings and orders of the District Court on appeal.

The central legal issues were whether the roots of the plantings had penetrated the soil beneath the respondents' dwellings and caused desiccation, whether the appellant owed the respondents a duty of care in negligence, whether the appellant breached that duty of care, and whether the judge's orders could be upheld on the alternative basis that the appellant was liable in nuisance. The appeal also challenged the judge's award of damages.

The court found that the roots of the plantings had penetrated the soil beneath the respondents' dwellings and caused desiccation. The court upheld the finding that the appellant owed the respondents a duty of care in negligence and that the appellant breached that duty of care. The court found that the non-compliance with the landscape plan was the breach of duty of care. The court held that the breach was causative of the desiccation and, therefore, of the respondents' loss and damage. The court dismissed the appeal in relation to the first and second respondents and allowed it in relation to the third respondent. The court reduced the award of damages to the third respondent from $318,693 to $186,570. The court dismissed the third respondent's application to call further evidence and ordered that the parties be heard on the question of costs.

Orders

Orders of the court

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Background

Background to the litigation

In February 2004 the respondents’ action against the appellant proceeded to trial before his Honour Judge Herriman in the District Court.The background facts Kevin Road, Modbury, runs in a north/south direction. There is a cul-de-sac at the southern end. No 8 Kevin Road is at the southern end of the road on the eastern side. The dwelling faces in a westerly direction. No 7 Kevin Road is opposite No 8 and the dwelling faces in an easterly direction. The dwelling on No 8 was built in about 1976 and the dwelling on No 7 Kevin Road was built in the late 1960’s. The first and second respondents have lived at No 8 Kevin Road since it was constructed. The third respondent has never lived at No 7 Kevin Road. She purchased the property as an investment in about 1980 and she let it to tenants more or less continuously from 1980 to 1995. It has remained vacant since 1995. Both of the properties have fences on their southern boundary, and both have driveways to the north of the dwelling. In the case of No 8 Kevin Road, the distance between the southern fence and southern wall of the dwelling is about one metre, and in the case of No 7 the distance is about one-and-a-half metres. Immediately to the south of the southern boundary of each property is the North-East Busway Reserve. In about 1980 the appellant, through one of its agencies, began to incorporate the reserve into what was then described as the North-East Busway Project (“the Project”), which involved the creation of a dedicated bus route to the north-eastern suburbs of Adelaide. The judge described the work involved as follows:The plan involved the excavation of a substantial east‑west ditch, or valley, to the south of Kevin Road and the construction within it of a permanent way for the bus route. The earthworks were thus substantial and resulted in a land contour that was convex in shape and descended southwards from the southern fences of Nos 7 and 8, gradually, at first, over a lineal distance of about ten or eleven metres, but thereafter quite sharply over a similar distance to the busway platform. The upper level of the slope was separated by a wire fence from the steeper, lower section and was set aside for public use. It was designed and implemented as a meandering, undulating, paved bike and walking track (“the track”) within a planted, park‑like setting, the whole area being described as “the linear park”. It is accessible, inter alia, from a pathway at the cul‑de‑sac end of Kevin Road and, at one point just to the east of that point, the track separates into northern (upper) and southern (lower) arms. The linear park is thus a continuous stretch of public land fringing the bus route (itself now known as “the O’Bahn”). The linear park was designed, constructed and landscaped by the appellant between about 1980 and 1989. The work was carried out by the appellant through its own agencies and by consultants or contractors engaged by the appellant. The planting of the vegetation in the park occurred in 1988 or 1989. In July 1991 the linear park in its completed state was transferred to the council. The appellant retained ownership of the O’Bahn route.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

There is no reason to interfere with the award for loss of rental. The award of general damages of $3,000 was challenged by the appellant on the basis that the rectification work should have been carried out earlier. In view of the approach I have taken to damages that challenge must fail.Conclusions The appeal by the State of South Australia in relation to the award made in favour of the first and second respondents must be dismissed. The appeal by the State of South Australia in relation to the award made in favour of the third respondent must be allowed and the judgment sum reduced from $318,693 to $186,570. The third respondent’s application to call further evidence must be dismissed. The parties should be heard on the question of costs.

Ratio Decidendi

Legal Principle Established

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