Compensating For Town Planner Negligence

The Supreme Court of Queensland awarded damages against a town planner for negligent advice on a property subdivision, including direct losses and loss of commercial opportunity. The decision highlights how courts assess 'loss of chance' claims based on the likelihood of hypothetical outcomes.

In issue

• The plaintiff applied for an assessment of damages from a professional town planner for negligent advice regarding the subdivision of a property. The claim, originally brought against a local government authority (LGA), the town planning firm (firm) and the town planner (town planner), had been resolved against the other parties. The Court awarded damages for direct losses and loss of chance and adjusted that award given a previous settlement payment.

The background

In February 2017 the plaintiff, relying on the defendant's advice, applied for a development approval (DA) to subdivide her property. The LGA granted the DA in July 2017, and the plaintiff undertook works in compliance with the DA. However, in April 2019 the LGA invalidated the DA because the approval was contrary to statutory requirements. The plaintiff consequently ceased work on the subdivision and sold the property in August 2019.

In April 2020, the plaintiff filed a claim against all three parties. The LGA settled the claim in March 2023. Neither the firm nor the town planner responded. The firm was deregistered and proceedings against it were discontinued. Default judgement was entered against the town planner in January 2021.

The plaintiff claimed damages from the town planner for the direct losses arising from the cost of the development application and work undertaken in accordance with the DA. She also claimed loss of chance damages on the basis that, had she not mistakenly pursued the DA, she would have sold the property and purchased a hypothetical property management business with the profits. The plaintiff claimed that property management business would have netted over $500,000 profit between July 2017 and April 2019.

The decision at trial

At trial, the Court awarded damages for the claimed direct losses, with minor deductions for costs not supported by invoices and the costs the plaintiff would have incurred if proper advice had been provided.

Loss of chance damages were also awarded on the basis that the plaintiff had established she sustained a loss of commercial opportunity of more than 'negligible value', but which was not practically certain. The Court found the plaintiff was a skilled business woman who had a significant history of successfully investing in property management businesses and that such businesses were available for purchase, in her price range, at the relevant time.

The Court acknowledged the difficulty in assessing the prospects of success of an opportunity. It considered the likely proceeds of sale of the property, the difficulty determining with any precision the profits from the (potentially) purchased business, the vicissitudes of business, and the likely delay in the purchase of the business and assessed the loss at 80% of the claimed amount.

The Court further determined that the entire settlement sum paid by the LGA should be deducted from the award to avoid double recovery.

Implications for you

This decision is an opportune reminder of the implications of awards for 'loss of chance' damages.

Unlike claims for damages for events that have or have not occurred, the court's assessment is based on the degree of probability that an eventm would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The ultimate effect being that an award for loss of chance damages will be made unless the probability that an event would have or might occur is so low as to be regarded as speculative.

Du Plessis v Morton Berg Pty Ltd [2025] QSC 245

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