MORGAN v LAKE MACQUARIE CITY COUNCIL; LAKE MACQUARIE CITY COUNCIL v HICKS [1993] NSWCA 184

MORGAN v_ LAKE MACQUARIE CITY COUNCIL; LAKE MACQUARIE CITY COUNCIL v HICKS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL COMMON LAW DIVISION

CLARKE, HANDLEY and CRIPPS JJA

7-9 June 1993, 2 September 1993

[1993] NSWCA 184

NUISANCE — NEGLIGENCE — DAMAGES

Subdivision of land — excavation work near crest of hill — use of excavated material to fill gully — building works on crest of hill and below gully — gully vacant land sold to Council by developer — public reserve — landslip in 1983 — some remedial work carried out by Council — further slippage — resolution to carry out work in 1990 — further landslip — damage to premises.

Nuisance — right to support claimed by landholders on crest of hill — failure of Council to secure stability of lands.

Negligence — claim by downslope property owners — appeals by Council against judgment below — reasonableness of response by Council to danger — Held: Council acted unreasonably in failing to act as advised by experts.

Damages — tortfeasor may not profit from his own wrong — damages calculated without reference to the decrease in original value occasioned by presence of risk created/adopted by tortfeasor.

Subdivision of land — excavation work near crest of hill — use of excavated material to fill gully — building works on crest of hill and below gully — gully vacant land sold to Council by developer — public reserve — landslip in 1983 — some remedial work carried out by Council — further slippage — resolution to carry out work in 1990 — further landslip — damage to premises.

Nuisance — right to support claimed by landholders on crest of hill — failure of Council to secure stability of lands.

Negligence — claim by downslope property owners — appeals by Council against judgment below — reasonableness of response by Council to danger — Held: Council acted unreasonably in failing to act as advised by experts.