TO: Isotola, Sui & Alberto
FROM: Tom Caulton
RE: Possible Action for Damages
Isotola, Sui and Alberto (the plaintiffs) are interested to see what damages they can recover if they succeeded in negligence against the Dunedin City Council (DCC). Does the defendant (Dunedin City Council) owe a duty of care to the particular plaintiffs in the circumstances? Prior cases really only dealt with the ‘builders’ being responsible for the defect in the construction of a particular structure. In recent cases, Sunset Terraces, it was outlined that Councils do in fact owe a ‘Duty of Care’ thus the rule in Bowen v Paramount Builders Ltd crafted by Richmond P can be applied to our current case. Consequently, when the DCC selected a certifier who negligently approved unsound plans creating a hidden defect which is a source of danger to third persons whom he ought reasonably to foresee as likely to suffer damage either in the form of personal injury or injury to their property” – A duty of Care is prima facie owed. Woodhouse J and Cooke J also agreed that a Duty of Care was owed - “Meritorious claims should be allowed.” For that reason, in applying the above rule it is likely that the DCC will owe a ‘Duty of Care’ to the Plaintiffs (Isotola & Sui). Was the DCC negligent in approving the plans?
The DCC “admitted that their certifier had been negligent in approving the plans. Therefore it is very likely negligence will be established. Res ispsa loquitur - The facts speak for themselves – Grant v Australian Knitting Mills. LIMITS ON LIABILITY
Unhidden defect: Was there a reasonable possibility of intermediate examination? This element encompasses that defects must be hidden and unknown to the plaintiff, a chance of intermediate examination absolves duty of care. All 3 judges agreed that there is no liability if the purchaser has actual knowledge of the defect – Obiter. To outline the gravity of this question we can cite Donoghue v Stevenson where the ginger beer was in an...
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