Bowen v Stavroulakis [2020] NSWDC 20

Bowen v Stavroulakis [2020] NSWDC 20

The plaintiffs failed to establish, on the balance of probabilities, that the excavation works by the defendants caused the damage to their property. The court preferred the defendants' expert evidence that the works were outside the zone of influence and the more probable cause was stormwater from the plaintiffs' own downpipe. Accordingly, causation was not proven, so the claim for damages in negligence and for breach of statutory duty failed, notwithstanding that the defendants had breached their duty of care regarding precautions taken during excavation.

Jurisdiction
Australia
Judgment Date
21 February 2020
Procedural Posture
Civil / Principal Judgment After Final Hearing
Outcome
Judgment for the defendants; plaintiffs' claim dismissed.
Legal Topics
['negligence' 'duty of Care' 'breach of Statutory Duty' 'support of Land' 'contributory Negligence' 'apportionment of Liability' 'damages' 'causation']
['tort Law' 'property Law' 'building & Construction Law'] ['negligence' 'duty of Care' 'breach of Statutory Duty' 'support of Land' 'contributory Negligence' 'apportionment of Liability' 'damages' 'causation']

Case Brief

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Procedural Posture

Civil / Principal Judgment After Final Hearing

Legal Issues

  1. 1 ["Whether excavation works by the defendants caused damage to the plaintiffs' property" 'Whether omission to provide shoring caused the damage' 'Whether stormwater from a downpipe was the sole cause of damage' 'Whether it was negligent to carry out excavation without shoring' 'Appropriate rectification works and quantum' 'Contributory negligence of the plaintiffs' 'Proportionate liability and the involvement of concurrent wrongdoer']

Ratio Decidendi

The plaintiffs failed to establish, on the balance of probabilities, that the excavation works by the defendants caused the damage to their property. The court preferred the defendants' expert evidence that the works were outside the zone of influence and the more probable cause was stormwater from the plaintiffs' own downpipe. Accordingly, causation was not proven, so the claim for damages in negligence and for breach of statutory duty failed, notwithstanding that the defendants had breached their duty of care regarding precautions taken during excavation.

Court Disposition

Judgment for the defendants; plaintiffs' claim dismissed.

Orders

  • ['Verdict and judgment for the defendants' "Plaintiffs to pay the defendants' costs" 'Liberty to apply within 14 days for variation to costs order' 'Exhibits may be returned within 28 days']