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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- Case
- [2005] SASC 412
- Decision Date
CaseChat Overview and Summary
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.
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