State of SA v Simionato

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.