(HC Auckland, CIV2009-404-6497, 16 September 2010, Ellis J)
The appellant Trust purchased a family home in Remuera, Auckland. The house was leaky and required completely re-cladding. The Trust sued the Auckland City Council in negligence, and joined in the builder (a labour-only carpenter with no management role).
The Weathertight Homes Tribunal (WHT) adjudicator found the Council was negligent in its inspections and liable for the full amount of claim. It exonerated the builder from liability, but held that Mr Findlay/the Trust was contributorily negligent due to their failure to manage, oversee and coordinate the construction process. It apportioned liability between the Council (15%) and Mr Findlay / the Trust (85%). The Trust appealed and the Council cross-appealed in relation to the findings adverse to them.
The High Court upheld the finding of negligence by the Council (which was not the subject of any real argument).
Negligence – builder: The Court agreed that the extent of any tortious duty the builder owed was co-extensive with his contractual duties, but found that the tortious duty required a duty to construct not simply in accordance with (inadequate) plans but competently, in accordance with reasonable standards and with the building consent. The Court found the builder up to 100% responsible for 80% of the total damage.
Contributory negligence: The Court criticised the WHT’s approach that the Trust was at fault for not joining other contractors which it considered were liable for the leaky construction. In fact, the onus was on the defendant(s) to cross-claim against other contractors and, if they did not, they were liable for all damage. The WHT had also wrongly assessed contributory negligence by focusing on the defendants’ comparative blameworthiness rather than the Trust’s fault as against all other persons who caused the damage. The Court found that by not engaging a project manager, Mr Findlay’s damages should be reduced by 40%. The remaining damage was apportioned 80:20 between the builder and the Council.
General damages: Following the approach in Byron Avenue that a transfer to a trust did not have any effect on standing to sue, the Court awarded the Trust $25,000 in general damages reduced by 40% for contributory negligence.
Comments
This case is significant in that it reinforces the correct approach to liability between multiple defendants in the leaky building context. A plaintiff cannot be criticised for not suing other contractors who are at fault, and may recover the total amount of loss from any one of them individually. The onus is on the defendant(s) to cross-claim or seek contribution against other contractors. In addition, the decision highlights that for the purposes of contributory negligence, the plaintiff’s blameworthiness ie compared against the fault of any other persons at fault (whether or not parties) – rather than any other tortfeasors.
09 304 0666
Findlay & Sandelin v Auckland City Council & Anor
(HC Auckland, CIV2009-404-6497, 16 September 2010, Ellis J)
The appellant Trust purchased a family home in Remuera, Auckland. The house was leaky and required completely re-cladding. The Trust sued the Auckland City Council in negligence, and joined in the builder (a labour-only carpenter with no management role).
The Weathertight Homes Tribunal (WHT) adjudicator found the Council was negligent in its inspections and liable for the full amount of claim. It exonerated the builder from liability, but held that Mr Findlay/the Trust was contributorily negligent due to their failure to manage, oversee and coordinate the construction process. It apportioned liability between the Council (15%) and Mr Findlay / the Trust (85%). The Trust appealed and the Council cross-appealed in relation to the findings adverse to them.
The High Court upheld the finding of negligence by the Council (which was not the subject of any real argument).
Negligence – builder: The Court agreed that the extent of any tortious duty the builder owed was co-extensive with his contractual duties, but found that the tortious duty required a duty to construct not simply in accordance with (inadequate) plans but competently, in accordance with reasonable standards and with the building consent. The Court found the builder up to 100% responsible for 80% of the total damage.
Contributory negligence: The Court criticised the WHT’s approach that the Trust was at fault for not joining other contractors which it considered were liable for the leaky construction. In fact, the onus was on the defendant(s) to cross-claim against other contractors and, if they did not, they were liable for all damage. The WHT had also wrongly assessed contributory negligence by focusing on the defendants’ comparative blameworthiness rather than the Trust’s fault as against all other persons who caused the damage. The Court found that by not engaging a project manager, Mr Findlay’s damages should be reduced by 40%. The remaining damage was apportioned 80:20 between the builder and the Council.
General damages: Following the approach in Byron Avenue that a transfer to a trust did not have any effect on standing to sue, the Court awarded the Trust $25,000 in general damages reduced by 40% for contributory negligence.
Comments
This case is significant in that it reinforces the correct approach to liability between multiple defendants in the leaky building context. A plaintiff cannot be criticised for not suing other contractors who are at fault, and may recover the total amount of loss from any one of them individually. The onus is on the defendant(s) to cross-claim or seek contribution against other contractors. In addition, the decision highlights that for the purposes of contributory negligence, the plaintiff’s blameworthiness ie compared against the fault of any other persons at fault (whether or not parties) – rather than any other tortfeasors.