Roberts v Rodier [2006] NSWSC 282

New South Wales Supreme Court

CITATION : Roberts v Rodier [2006] NSWSC 282 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 20/3/06-24/3/06, 27/3/06 & 28/3/06

JUDGMENT DATE : 4 May 2006

JURISDICTION : Equity

JUDGMENT OF : Campbell J

DECISION : Parties to bring in Short Minutes.

CATCHWORDS : TORTS – nuisance – who may be sued for – defendant not in occupation of the land from which the nuisance emanates – NUISANCE – what constitutes – removal of support for land – unavailability of action for nuisance since enactment of section 177 Conveyancing Act 1919 – NUISANCE – what constitutes – interference with access to a public road – DAMAGES – measure and remoteness of damages in actions for tort – general principles applicable – effect of damage sustained by the plaintiff before the tort is committed – effect of remedying damage in a particular way being to put the plaintiff in a better situation than before the tort was committed (betterment) – adjustment of prima facie measure of damages to take account of vicissitudes – need to apply principle about extent of damages a plaintiff is entitled to by using principles concerning onus of proof and the shifting onus of adducing evidence – onus of proof of facts relating to pre-existing damage to plaintiff's property – onus of proof of facts relating to betterment – DAMAGES – measure and remoteness of damages in actions for tort – availability of aggravated damages for nuisance or negligence – DAMAGES – general principles – whether appropriate to accept undertaking proffered by defendants to perform work in lieu of, or in reduction of, monetary damages

LEGISLATION CITED : Conveyancing Act 1919 Uniform Civil Procedure Rules 2005