Letting the dust settle: damages for airborne particles arising from construction works significantly reduced for plaintiffs

14 October 2020

The Supreme Court of New South Wales assessed the damages for private nuisance claimed by seven plaintiffs arising from the release of airborne hydrated lime particles into their residential properties from a neighbouring construction site. In his findings, His Honour Justice Fagan significantly reduced the damages sought by the plaintiffs by over $450,000 due to their failure to mitigate and substantiate their losses and their lack of credibility.

In Issue

The proceedings concerned the assessment of the plaintiffs’ damages occurring from the release of airborne lime particles from a construction site. The defendant did not contest its liability in the private nuisance claim brought against it by the plaintiffs, having accepted that the lime had escaped its site and drifted onto the plaintiffs’ properties over a three-day period. The trial focused on a substantive dispute between the plaintiffs and the defendant about the compensable damages.

The background

The defendant, a demolition and civil works contractor, was conducting works on a construction site on the Princess Highway in February 2016. The plaintiffs’ properties were collectively located on the opposite side of the Princess Highway to where the defendant’s construction works were taking place. The defendant opened approximately 12.8 tonnes of hydrated lime in 20kg bags, which was distributed over the site and mixed into the soil as a stabiliser.

As a result of breezes during the spreading process, the lime particles were found on the exterior of the plaintiffs’ properties and had entered the living areas, settling on the furniture and personal effects of the plaintiffs. Further, it was alleged that the particles had infiltrated the roof and wall cavities.

The first to fifth plaintiffs claimed an overall loss of $241,107.50 for ongoing cleaning fees, replacement of their roofing, alternative accommodation fees, and damages for various personal possessions, including furniture, sporting equipment and a caravan. The sixth and seventh plaintiffs claimed damages of $272,585 for similar cleaning, accommodation, damaged goods (including aquarium fish and orchids) and roofing replacement costs, and an unquantified sum for the sixth plaintiffs’ loss of income. In claiming exemplary damages against the defendant, the plaintiffs submitted that the defendant acted in “high-handed and outrageous disregard of the plaintiffs’ rights”.

The decision at trial

The court highlighted various inconsistencies and credibility issues in the evidence of the plaintiffs. The court did not accept the seventh plaintiff’s submission that the defendant failed to act upon complaints of escaping dust and had been evasive about the material used on site. Conversely, the court had regard to the defendant’s immediate acceptance of responsibility and its engagement of cleaners for the two affected properties without delay.

In finding that the defendant’s conduct should not attract exemplary damages, the court found that the plaintiffs failed to submit any evidence that the wind velocity increased without the defendant taking further precautions, that consistent wetting down of the lime was not completed and instructions at the daily toolbox talks were not followed. The plaintiffs were therefore unsuccessful in establishing a complete disregard for the plaintiffs’ properties, such that an award for exemplary damages was warranted.

The court otherwise considered each head of damage in substantial detail, relying on the evidence (or lack thereof) submitted by the plaintiffs. With respect to the damages sought by the first to fifth plaintiffs, it was noted that the plaintiffs had rejected the initial offer from the loss adjuster for the defendant’s insurer for a cleaning quote, and that the plaintiffs did not proceed with their own quote obtained for cleaning of the roof void and insulation replacement. The court awarded $26,099 for cleaning fees to compensate for harm to the amenity of the property during the initial week and some allowance for residual loss over a period of time afterwards.

The court did not award damages for alternative accommodation as the cleaning and replacement of the roof sarking had never been undertaken. No damages were awarded for the replacement of the roof sarking and the replacement of roofing and gutters in any event, as the plaintiffs did not tender evidence that the sarking was affected by the lime particles. Similarly, no damages were awarded for damaged furniture, personal goods and the diminution in value of the unit due to the lack of evidence submitted.

Parallel findings were made due to a lack of evidence with respect to the damages sought by the sixth and seventh plaintiffs, with notable reductions made to nil for the claimed removal and replacement of the roofing, alternative accommodation costs, and damaged possessions, including the deceased aquarium fish and orchids. The court accepted evidence of a cleaning quotation. In relation to the seventh plaintiff’s unquantified loss of income, the court did not accept the plaintiff’s evidence that he could not utilise his work clothes and trade certificates due to contamination and found his evidence to be fanciful.

The court ultimately awarded damages in the amount of $26,099 to the first to fifth plaintiffs, and $15,292.50 to the sixth and seventh plaintiffs.

Implications for you

Whilst liability was not in issue in this matter, it is an important reminder that construction sites may face claims in nuisance by the owners and occupiers of nearby properties in circumstances such as this, where the airborne transfer of construction materials has penetrated those properties. Should damage arise from construction works, the contractor ought to act as soon as practicable to rectify the damage and prevent any further damage.

The case also highlights the requirements for a party suffering damage to mitigate their loss at an early stage and to take steps to reasonably quantify their loss. In the absence of such evidence, the defendant here was able to successfully dispute those heads of damage at trial and substantially reduce its quantum exposure.

Byron v JBG Contractors (NSW) Pty Ltd [2020] NSWSC 1280

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