Jandon Constructions (A Firm) & Ors v Lyons & Anor

[1999] WASCA 310

Western Australia Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Torts
2. › Negligence
3. › Defective building work
4. › Measure of damages
5. › Whether cost of demolition and reconstruction or cost of rectification
6. › Whether remedial work constituted a 'doubtful remedy'
7. › Reasonableness of proposed remedial measures
1. Damages
2. › Measure of damages
3. › Defective building work
4. › Cost of reinstatement versus cost of repair
5. › Doubtful remedy
6. › Whether trial judge's assessment was against the weight of evidence
1. Appeal
2. › Standard of appellate review
3. › Findings of fact by trial judge
4. › Advantage of trial judge in assessing demeanour and tone of expert witnesses
5. › Whether findings against the weight of evidence
1. Practice and Procedure
2. › Pleadings
3. › Claim limited to cost of demolition and reconstruction
4. › Whether court may award damages on alternative basis not pleaded
5. › Whether respondents entitled to rectification damages despite not pleading that measure

Quick Take

Where expert evidence establishes that proposed remedial work for defective building construction involves significant uncertainty — particularly where the building is in a seismic zone and the proposed remedy (jointing) would weaken the structure — a trial judge is entitled to find that anything short of demolition and rebuilding is a 'doubtful remedy' and to award damages on the basis of demolition and reconstruction costs. The advantage of the trial judge in assessing the demeanour and tone of expert witnesses is particularly significant where the transcript reveals equivocal or qualified answers.