Kirkby & Anor v Coote & Ors

[2006] QCA 61

Queensland Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Damages
2. › Measure and remoteness of damages in actions for tort
3. › Measure of damages
4. › Damage to land and buildings
5. › Defective foundations
6. › Whether reasonable cost of demolition and reconstruction appropriate where risk of further failure real but not quantifiable
7. › Bellgrove v Eldridge (1954) 90 CLR 613 applied
1. Damages
2. › Measure and remoteness of damages in actions for tort
3. › Measure of damages
4. › Damage to land and buildings
5. › Reasonableness qualification
6. › Whether partial underpinning constitutes a 'doubtful remedy'
7. › Whether plaintiff required to bear risk of further structural failure
1. Negligence
2. › Professional negligence
3. › Engineers
4. › Design of footings for pole house on steeply sloping land
5. › Failure to follow geologist's recommendations
6. › Assessment of damages
1. Appeal
2. › Standard of appellate review
3. › Findings of fact by trial judge
4. › Preference for expert evidence
5. › Whether finding reasonably open on the evidence

Quick Take

Where defective foundations give rise to a real (not fanciful) risk to the stability of a house, even if the risk cannot be quantified and is not probable, the plaintiff is entitled to damages assessed on the basis of demolition and reconstruction if that is the only way to eliminate the risk. Partial underpinning that would leave a residual risk of structural failure is a 'doubtful remedy' within Bellgrove v Eldridge. The threshold of compensable risk in negligence corresponds with the level of risk by which the duty of care was defined.