Tag: Nuisance

A Quick Summary of Evans v Balog [1976]

Case name & citation: Evans v Balog [1976] 1 NSWLR 36

  • Court: New South Wales Court of Appeal
  • Decided in: February 1976
  • The bench of judges: Moffitt P., Hutley and Samuels JJ.A.
  • Area of law: Action for damages for nuisance, negligence and breach of contract

The case centers on the appropriate measure of damages in a situation where the plaintiffs’ house was undermined and rendered uninhabitable due to excavation work undertaken by the defendants on adjoining land. The plaintiffs sued for damages on the grounds of nuisance, negligence, and breach of contract to repair.

Facts of the Case (Evans v Balog)

The plaintiffs purchased a house in 1964 and lived there as a family. The defendant acquired the neighboring property in 1970 and began excavations to build a basement car park. The excavations caused the ground to subside along the plaintiffs’ boundary, leading to cracks, a partial ceiling collapse, and eventually the separation of the living room from the rest of the house. By April 1971, the house became uninhabitable, and the plaintiffs left in June 1971 due to safety concerns. Also, the defendant had entered into an agreement to repair the damage but failed to do so.

The plaintiffs sued the defendant for damages.

Legal Issues

The primary issue was determining the appropriate measure of damages.

The trial court awarded damages based on the reasonable cost of repairs necessary to restore the house to its original condition.

The defendant appealed, arguing that damages should be based on the diminution in value of the property, which would result in a lesser amount than the cost of repairs.

Decision

The appeal court upheld the trial court’s decision.

Reasoning

The court emphasized that the plaintiffs had effectively lost their family home and it was reasonable for them to desire its restoration. The proper measure of damages in such a case is the cost of reinstating the property to its pre-damage condition, not merely the extent of diminution in value.

It was recognized that in cases where the nature of the plaintiffs’ loss is such that only one mode of fairly repairing it exists, the wrongdoer cannot complain if this method turns out to be more expensive.

Legal Principle in Evans v Balog

Samuels JA’s ruling established that while the starting point for compensation for property damage is generally the diminution in value, a higher award reflecting the cost of reinstatement may be appropriate where the plaintiff’s desire to rebuild is reasonable. In this case, the nature of the loss (loss of a family home) justified the higher measure of damages.

Conclusion

The plaintiffs were awarded damages based on the reasonable cost of repairing their house, reflecting the court’s view that this was the appropriate measure given the nature of their loss and their reasonable desire to restore their family home.

References:

YOU MIGHT ALSO LIKE:

Hole v Hocking [1962] SASR 128: A Case Summary

MORE FROM TORT LAW: