PROPRIETORS OF STRATA PLAN NO 13391 v ABATE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY P, HANDLEY and COLE, JJA 12 March, 27 March 1996 [1996] NSWCA 437 NUISANCE — accumulating water and piping it onto adjoining building — liable. Mahoney P The facts are detailed in the judgment of Cole JA which I have had the opportunity of reading. His Honour's statement of them enables me to go directly to the essential issues as posed by the arguments of Mr Rudge for the appellant-defendant. The issue in this appeal turns upon the way in which the waters from the roof and guttering on the defendant's premises was discharged. Before about mid-1985, the water, or at least the relevant part of it, was discharged into a downpipe which took it from the gutter to ground level. The downpipe took the water below the level of the ground. Although it did not appear merely from a surface inspection, the evidence disclosed that the water from the downpipe was directed underground along a clay pipe or drainage line which extended from the bottom of the downpipe a few metres across the defendant's property and into the plaintiff's property. This was the plan of the drainage, if it operated. At the time, as the judge held, the guttering was "grossly defective". It was rusted through and (as I infer) water poured through the guttering rather than being directed down the downpipe. The water which then flowed onto the plaintiffs property does not appear to have caused any relevant damage to the plaintiffs building or property. At least, nothing turned on any such damage. In about mid-1985, plumbing work was done on the guttering and the downpipe. The guttering was repaired or replaced and the downpipe was replaced. The judge assumes this to have been done by "some plumber" and that the plumber had acted at the defendant's request and with their authority. In about September 1985 there was heavy rain. Water from the roof of the defendant's premises was collected into the downpipe and directed onto the plaintiffs property. Having considered conflicting evidence, the judge found, and it is not now contested, that the water from the downpipe was directed into the plaintiffs property "in large volumes". The work which had been done had "the effect of just concentrating the flow of water down the particular downpipe". The increase in the flow of water onto the plaintiff's property was great. The plaintiff sued the defendants only in nuisance: this was the only basis of his claim. The term (private) nuisance covers a wide variety of situations: Goldman v Hargrave (1966) 115 CLR 458; (1963) 110 CLR 40; Cambridge Water Co Ltd v Eastern Counties Leather PLC (1994) 2 AC 264. It is not necessary to attempt a verbal formula which will provide a meaningful definition of all classes of it. It was accepted in argument in the present case that if the defendants had done what occurred knowing that the water would flow onto the plaintiff's land they would have been guilty of nuisance. 2 UNREPORTED JUDGMENTS At the trial, a number of issues were pursued. They have not been pursued on appeal. Mr Rudge's submissions were essentially two. He submitted: (a) that there was no nuisance because the defendants did not know that the concentrated water would flow onto the plaintiffs land; and (b) that they were not liable in nuisance because what had been done had been done by an independent contractor. (a) Mr Rudge submitted that, as far as the evidence extended, it was not established that the defendants knew that the water from the downpipe would be discharged onto the plaintiff's land. He submitted that the effect of the evidence, or of the lack of it, was that the defendants did not know where the water would go. Mr Rudge pointed to the long established principle that there is no duty upon an occupier of land to search for or to check upon these matters: see Torette House Pty Ltd v Berkman (1939) 62 CLR 637 at 646, per Latham CJ. In the Torette case, neither the defendant nor the independent contractor employed by him to do plumbing work knew of the uncapped pipe through which, ultimately, water flowed onto the plaintiff's premises and caused the nuisance sued upon. The plaintiff's case failed. Mr Rudge submitted that there was upon the defendants, as occupiers of their land, no obligation to inquire or to know where the water went. It could, he suggested, have been discharged merely into the ground, presumably to run away or be absorbed. The principle that an occupier of land is not subject to a duty to search for nuisances which may or may not exist is, as I accept, well established. It is a principle of obvious convenience and, in my opinion, it should not be entrenched upon. But that does not mean that an occupier who is not subjectively aware of the fact of the nuisance or of the conditions which can give rise to a nuisance can in no circumstances be held liable for the nuisance when it occurs. In the Torette case, the members of the court accepted the general principle that there is no nuisance where the defendant "had neither caused the nuisance nor knowingly continued it": at 646, per Latham CJ. But each of the members of the court saw that general principle as subject to qualifications. Latham CJ: at 646; after having referred to the general principle, said, "I add that the defendant did not employ the plumber to do any act of which the nuisance was the necessary or a natural consequence. Starke J: at 650-651; said that an occupier owes a duty to his neighbour "'to exercise reasonable care and skill in the supervision of the pipes under their control and management, so that if water escaped they should not be damaged". He concluded, on balance, that there was no "neglect of duty". That duty of supervision would, I think, extend to ensuring that work done upon the pipes was done in such a way that it was not likely that water would be discharged so as to cause a nuisance. Dixon J: at 657-658: having stated the general principles in question, said: "Tf the condition which amounts to or causes a nuisance arises from a failure to repair, an occupier, at all events if repair is his responsibility and not, for example, his landlord's, may be liable notwithstanding that he is neither aware of nor by reasonable diligence could have discovered the conditions: Wringe v Cohen (1939) 4 All ER 241." There is, for present purposes, no distinction between a failure to repair and a repair or replacement which is done without due care. Dixon J: at 659; said: "The same process of reasoning leads to the conclusion that to enter into occupation of land upon which a potential source of nuisance or of mischief to others exists is not enough to impose liability for the consequences upon the new occupier. Some element of fault on his part is necessary. Here there was no fault; URJ PROPRIETORS OF STRATA PLAN NO 13391 v ABATE (Mahoney P) 3 the failure to discover the defect or to guard against its possible existence and consequences implied no neglect of the duty of an occupier of fixed property, no want of prudence or of reasonable diligence and no omission to keep in repair." In the present case, his Honour made a finding of fault. He saw "a clear connection" between the water from the repaired downpipe and the large volumes of water discharged onto the plaintiffs property. The replacing of "very leaky guttering with good guttering would have the effect of just concentrating the flow of water down the particular downpipe". His Honour said: "So that I find, in the circumstances in the legal terminology that the defendants by their servants or agents, when they caused this guttering to be replaced and the downpipe to be replaced, created the nuisance causing a concentrated flow of water down the downpipe on their property and on to the plaintiff's property via the very inadequate drainage system set up. The drainage even on the experts' reports from the defendant was clearly inadequate, and further, or in the alternative, I find that in the circumstances the defendants continued or adopted that same nuisance through their servants or agents carrying out that work at the time when clearly they knew or ought to have known at least via whoever carried out the work for them, and indeed in view of what would seem to have been the clear inadequacy of the draining situation, that large quantities of water were likely to be discharged from the defendant's property in concentrated form on to the plaintiffs property." There is in the notice of appeal no ground of appeal against this finding. But, however that be, I am of opinion that the finding was correct. It was plain that, if the repairs were done, there would be a large increase in the quantity and concentration of the water discharged from the downpipe. That was the purpose of doing the repairs; it was the necessary or, at least, a natural consequence of doing them. Prudence required that attention be given to where the water, in that form, was to go. The bottom of the downpipe was within a short distance of the fence between the two properties. It was in my opinion not enough to assume or to infer from the fact that no damage had occurred while the system was in its defective state that none would occur when it was repaired. The defendants did not merely allow the continuance of an existing condition apt to produce a nuisance. It was their act in changing the conditions that produced the nuisance. It is arguable that that alone is sufficient to make the defendants liable for the nuisance. But, however that be, if, as the judge held, that act was done with "want of prudence or of reasonable diligence", the defendants were liable in nuisance for what occurred. Mr Rudge referred the Court to the Cambridge Water case and to what was there said by Lord Goff of Chieveley at 300 et seq. In that case, the trial judge had found that the source of the nuisance was the repeated spillages of small quantities of solvent into the underground strata and that the defendant could not reasonably have foreseen that that would cause the contamination in question. In the present case, it was at least foreseeable that to concentrate and discharge water in the way the defendants did would or would be apt to lead to the flow of it onto the plaintiff's land and damage of the kind in question. (b) Mr Rudge submitted that, because the work had been done, as he suggested, by an independent contractor, the defendants were not liable in nuisance for what had occurred. 4 UNREPORTED JUDGMENTS It is, I think, arguable that there was insufficient evidence from which to determine whether the plumber who, it may be inferred, was employed was an independent contractor or was simply such. All that can be inferred is that a plumber was employed to do work which would, necessarily or as a natural consequence, concentrate the water and discharge it near the plaintiffs boundary or across it. A plumber engaged to do work of that kind, may be engaged on terms of various kinds. He may be under the control and direction of the person for whose benefit he works to such an extent that he, in relation to some or all of his work, is an employee. Or the doing of it may be in his independent discretion. I suspect that the evidence, as far as it extended, did not enable a positive finding to be made that, for example, in what was done in relation to the underground pipe or line, the plumber was acting as an independent contractor or under the direction of the defendants. It is at least possible that, in deciding not to examine the underground work, he acted upon the direct authority and direction of the defendants. However, this aspect has not been pursued in argument and I shall for the purposes of the argument assume that the work was done by an independent contractor. The distinction between an independent contractor and an employee is, of course, of importance for the law of negligence. It is not clear exactly to what extent it is relevant in determining liability of an occupier in nuisance. It may, of course, be relevant for the purpose of determining whether notice to the workman is, as with an employee, notice to the employer. But, for the purpose of determining liability in nuisance, at least in a case such as this, the exact relevance of the distinction remains to be determined. In the Torette case, the members of the court considered the significance of the fact that the plumber was an independent contractor at least principally in determining liability in negligence. I do not think that that case determines the present issue. It is, I think, of assistance to spell out the steps in the arguments of the plaintiff and the defendants and to understand at what stage in the arguments, and in what way, the fact that the work was done by an independent contractor becomes of (arguable) relevance. The first step in the argument is: the defendants did work on their land which, by discharging water in large volumes and in concentrated form, caused damage to the plaintiff's land. The next step, propounded by the defendants is: the work was not done by them but by a person for whom they were not responsible, an independent contractor. The third step, propounded for the plaintiff, is to the following effect: even if the defendants did not, in that sense, create the nuisance themselves, they are liable if (to project the reservation of Latham CJ) the nuisance was the necessary or natural consequence of what the independent contractor was engaged and authorised to do; or if (to pursue the observations of Dixon J) the nuisance arose or was continued through some element of fault of the defendants. To instruct an independent contractor to do work which would concentrate and increase the large quantities of water discharged near the plaintiff's boundary was to instruct him to do, as the trial judge's finding suggested, something the necessary or (more accurately) the natural consequence of which was to cause damage to the plaintiff. To instruct him to do that without taking care to ensure that the increased and concentrated flow was properly provided for was such fault or lack of prudence or diligence as to warrant the finding of nuisance. URJ PROPRIETORS OF STRATA PLAN NO 13391 v ABATE (Handley JA) 5 I think that what is here in question is not a finding of negligence on all fours with a finding of negligence in the law of negligence. In this case, the judge's findings would be sufficient to amount to negligence: I do not differ from him in that regard. But it is not necessary to go so far. It is enough that there be an element of fault, of lack of prudence or diligence, sufficient for the law of nuisance. As the trial judge held, the original drainage system was "clearly inadequate", there was a "clear inadequacy" in the new arrangements, and "large quantities of water were likely to be discharged from the defendant's property in concentrated form". In such a situation, there is, for the purposes of this branch of the law of nuisance, the kind of "want of prudence or of reasonable diligence" to which Dixon J referred: at 659. To adapt the phrase used, in relation to liability in negligence, in Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 550, the requirement of reasonable care in the present case extended to seeing that care was taken by the plumber to provide appropriately for the discharge of the additional quantities of water resulting from the work. The parties have not suggested that, for the purpose of dealing with this appeal, any special order is necessary. It has been assumed to be sufficient if, in the present circumstances, the appeal be dismissed. Accordingly, I agree with the orders proposed by Cole JA. Handley JA In this appeal I have had the benefit of reading in draft form the reasons for judgment of the President and Cole JA. These judgments set out the relevant facts and the findings of the trial judge which I need not repeat. I agree that the appeal fails and I agree generally with the reasons of the President. I will however add some brief additional remarks of my own. Liability for nuisance is strict but not absolute. An occupier is not liable for damage that is not reasonably foreseeable. See the Wagon Mound (No 2) (19G7) 1 AC 617 and Cambridge Water Co v Eastern Counties Leather PLC (1994) 2 AC 264. However this principle does not assist the appellant because it was reasonably foreseeable that the concentration of rainwater from the roof and its discharge into a drain leading towards a neighbour's land would interfere with the neighbour's enjoyment of that land if the drain was inadequate. The appellant contended that it was not liable for the nuisance which had been caused by the acts or neglects of its independent contractor. In my opinion the employment of an independent contractor in the circumstances of the present case does not avail the appellant. The general principle is that an occupier is liable for a private nuisance created on his land by the acts or omissions of his servants or agents. See Fleming "The Law of Torts" 7th Ed at 396; Salmond and Heuston 18th Ed at 56, 65. At the very least the appellant arranged for a plumber to install new roof guttering and downpipes which would collect and concentrate roof rainwater and send it in the direction of the respondent's land. It therefore created the nuisance. This conclusion is supported by the decision in Torette House Pty Ltd v Berkman (1940) 62 CLR 637 rejecting the claim in nuisance in that case and the reasoning of the Justices which led to that decision. I refer, in addition to the passages cited by the President, to the approval by Dixon J at 657 of the judgment of Scrutton LJ in Job Edwards Ltd v Birmingham Navigations (1924) 1 KB 341 at 355 where that Judge said: "it is clear that a landowner or occupier is liable to an action by a private person damaged by a nuisance existing on or coming from his land: (1) If he or his servants or agents created the nuisance; 6 UNREPORTED JUDGMENTS (2) Or if an independent contractor acting for his benefit created the nuisance, though contrary to the terms of his employment". On the same page Dixon J also approved the judgment of Rowlatt J in Noble v Harrison (1926) 2 KB 332 at 338 where that Judge said: "A person is liable for a nuisance constituted by the state of his property: (1) if he causes it". See also Spicer v Smee (1946) | All ER 489. The appeal should be dismissed with costs. Cole JA The appellants, being the Proprietors of Strata Plan No 13391, are the proprietors of a property known as No 232 Sydney Road, Fairlight. It adjoins the property No 234 Sydney Road, owned by the respondent. In about June 1985 the appellants replaced the guttering and downpipe on the western side of their property using an independent contractor to carry out the work. That contractor apparently piped the water caught by the guttering into a dish drain on the appellants' property. That dish drain was evacuated by a storm water pipe which crossed the boundary into the respondent's property and discharged the water adjacent to the sandstone foundations of the respondent's premises which were situated on rock. The trial judge found that the water so concentrated on the appellant's property and discharged on the respondent's property caused damage when it passed through the outer sandstone wall of the respondent's property and undermined the foundations of an internal wall causing significant damage. The quantum of damage has not yet been assessed. The respondent sued the appellant in nuisance and was successful. The trial judge found: "The defendants by their servants or agents, when they caused this guttering to be replaced and the downpipe to be replaced, created the nuisance causing a concentrated flow of water down the downpipe on their property and onto the plaintiff's property via the very inadequate drainage system set up. The drainage even on the expert's reports from the defendant was clearly inadequate and further, or in the alternative, I find that in the circumstances the defendants continued to adopt that same nuisance through their servants or agents carrying out that work at the time when clearly they knew or ought to have known at least by whoever carried out the work for them, and indeed in view of what would seem to have been the clear inadequacy of the draining situation, that large quantities of water were likely to be discharged from the defendant's property in concentrated form onto the plaintiff's property."! This finding has been challenged on appeal upon the basis, first, that the new guttering and downpipe merely channelled a greater volume of water into the storm water pipe, the existence of which was not shown to have been known to the appellant. Further it was submitted that, as the plumbing work was performed by an independent contractor, no liability for the damage attached to the appellant. In my opinion the appeal fails on both points. A higher proprietor may be liable if it causes surface water to flow in a more concentrated form than it naturally would onto the land of a lower proprietor. It is clear from both Gartner v Kidman? and Torette House Pty Ltd v Berkman¢, that a party may have a responsibility for accumulating a "large quantity of water 1. Appeal Book, at 291H-S. 2. Gartner v Kidman (1962) 108 CLR 12 at 48 per Windeyer J. 3. Gartner v Kidman (1962) 108 CLR 12. URJ PROPRIETORS OF STRATA PLAN NO 13391 v ABATE (Cole JA) 7 which is a potential source of mischief" to a neighbour. That is because a nuisance in such circumstances is "the necessary or natural consequence"5. That responsibility is grounded in nuisance although, perhaps, now better understood to flow from concepts of negligence.6 As the High Court recently stated, a proprietor having "a central element of control" over land who by activity on that land exposes another on adjacent land to a foreseeable risk of danger, is liable in negligence.7 That liability arises because "the person outside the premises is obviously in a position of special vulnerability and dependence. He or she is specially vulnerable to danger if reasonable precautions are not taken in relation to what is done on the premises. He or she is specially dependent upon the person in control of the premises to ensure that such reasonable precautions are in fact taken". Such liability, whether in nuisance or negligence, is not escaped by employing an independent contractor. The reason why that is so was explained in Kondis v State Transport Authority'. Mason J said: "In a number of cases a person has been held liable for damage caused through the interference of the rights of an adjoining land owner due to the negligence of an independent contractor. Bower v Peate and Johns v Delaney, like Dalton v Angus, concerned interference with a right of support. Hughes v Percival concerned interference with a party wall. In such cases it may well be that the courts proceeded according to a view, which they did not express, that the relationship of the parties as adjoining land owners was such that the rights of one necessarily involved a correlative duty on the part of the other, when authorising work which might interfere with those rights, to ensure that reasonable care and skill was exercised rather than a duty merely to exercise reasonable care and skill which in many instances might be satisfied by the appointment of a competent contractor.' Further, as Brennan J pointed out in Burnie Port Authority v General Jones Pty Ltd:10 "Where the occupier of premises engages an independent contractor to perform on his premises work which naturally carries a risk of damage to neighbouring premises and performance of the risk results in such damage, the employer's liability can be imposed not only by the law of negligence but also by the law of nuisance." The non-delegable duty of care arises from the nature of the authorised work, rather than the manner of its performance. If the nature of the work carries the risk of damage to the neighbouring property, the non-delegable duty arises, whether the action for such damages be grounded in nuisance or negligence.!! Accumulating water and discharging it underground adjacent to the footings of a neighbours property falls into that category. 4. (1940) 62 CLR 637 at 655 per Dixon J. 5. Torette House (1940) 62 CLR 637 at 646 per Latham CJ; Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 579 per Brennan J. 6. See generally Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520. 7. See generally Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 551. 8. (1984) 154 CLR 672 at 685. 9. See also Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16 at 44; Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 550-552. 10. (1994) 179 CLR 520 at 578-579. 11. (1994) 179 CLR 520 at 579-580. 8 UNREPORTED JUDGMENTS Here the potential discharge of concentrated water onto a neighbour's property adjacent to building foundations obviously had the potential to damage them. The appellant was obliged to ensure that any independent contractor engaged in fact exercised reasonable care and skill so as not to cause that damage. It failed to do so, and damage resulted. It was argued by Mr Rudge that the nuisance was the existence of the unknown clay pipe. In my opinion that is not so. The nuisance was the accumulating by effective guttering of the water falling onto the appellant's land, and channelling it into a drain which was adjacent to the footing of the adjacent building. That was the creation of the nuisance as the trial judge found in the passage I have quoted. There was no appeal from that finding. In such circumstances, having caused the nuisance, no question of knowledge of the appellant arises. It also follows that Torette House Pty Ltd is to be distinguished on its facts, although no statements of legal principle there enunciated are called in question. On that basis the decision of McCredie DCJ should be upheld. The appeal should he dismissed with costs. Appeal dismissed with costs. Counsel for the Appellant: MG Rudge Solicitors for the Appellant: Moray and Agnew Counsel for the Respondent: DE Grieve QC Solicitors for the Respondent: Kaplin Reeves and Co