Local Court of New South Wales CITATION: Odia No 2 Pty Ltd and C & A Fox Investments Pty Ltd v Proline Property Group Pty Ltd [2007] NSWLC 8 JURISDICTION: Civil Odia No 2 Pty ltd PARTIES: C & A Fox Investments Pty Ltd Proline Property Group Pty Ltd Magnolia Grove Investments Pty Ltd FILE NUMBER: 9285/05 PLACE OF HEARING: Downing Centre Local Court DATE OF DECISION: 01/31/2007 MAGISTRATE: Magsitrate B A Lulham CATCHWORDS: Torts - Whether plaintiff able to succeed in nuisance when unable to succeed in negligence - Whether nuisance in circumstances - Legal relationship between nuisance and negligence - Whether person creating a nuisance will be strictly liable. LEGISLATION CITED: Rapier v London Tramways Co. (1980) 1893 2Ch 588. British Celanses Ltd v A.H. Hunt Capacitators (1969) 2All ER 1252. CASES CITED: Fennell v Robson Excavations Pty Ltd (1977) 2 NSWLR 486 Young v Wheeler (1987) ATR 80/126. Bolton v Stone (1951) Appeal Cases 850. Miller v Jackson (1977) QB 966. Counsel for Plaintiff: Mr G.J. Bateman Solicitors for Plaintiff : Patrick Grimes & Co. REPRESENTATION: Counsel for First Defendant: Mr M.C. Hay Solicitors for First Defendant: Quaerum Legal Advocate for Second Defendant: Mr R. Thambyraja (Director in person) Solicitors for Second Defendant: Lane & Lane until 21/3/06 ORDERS: Judgment for the defendants. Reasons for Decision 1 The plaintiffs Odia No 2 Pty Ltd (hereinafter referred to as 'Odia') and C & A Fox Investments Pty Ltd (hereinafter referred to as 'C & A Fox') claimed to own property situated at 34 Clishold Street, Wahroonga. The property next door, 32 Clishold Road, Wahroonga was owned by the second defendant, Magnolia Grove Pty Ltd (hereinafter referred to as 'Magnolia Grove'). As at 9 February 2005 the second defendant had contracted with the first defendant, Proline Property Group Pty Ltd (hereinafter referred to as 'Proline') to do building work on its property. In relation to such building work it was necessary for a fence to be erected between the two properties and for that purpose, as at 9 February 2005, the first defendant Proline had engaged Greg Moffat, a fencing contractor, to install the fence and an excavation company to clear the fence line. Whilst clearing the line the excavator damaged the steel conduit pipe encasing the electrical cable (hereinafter referred to as the 'steel conduit pipe') which ran from the front of the plaintiff's property to the house situated on that property. The plaintiff's property was a battleaxe type block, with the house at the rear. The steel conduit pipe was damaged at a point near a large tree situated on the plaintiff's property almost 30 centimetres from the boundary (hereinafter referred to 'as the incident'). Whether the steel conduit pipe, at that point, was on the plaintiff's property or had been pushed by the roots of the tree into the defendant's property, was a matter in dispute. The damage to the cable required electricity to the house on the plaintiff's land to be cut off. It was necessary for urgent repair work to be carried out. The plaintiff sued the adjoining owner and its contractor and sought damages of $15,000.00. The amount of damage was subsequently particularised as follows: Kuringai Electrical Services $473.00 Fairland Constructions Pty Ltd $11,198.00 Loss of rent $480.00 $12,151.00 2 Mr Bateman appeared for the plaintiff. Mr Hay appeared for the first defendant, Proline, the contractor. 3 The second defendant the owner of number 32 Clishold Road, was represented in person by its director, Mr R. Thambyrajah. I obtained a transcript for the hearing on 31 July 2006, but I did not obtain a transcript for 17 November 2006. I have received helpful submissions from Mr Hay, Counsel for the first defendant on 1 December and from Mr Bateman dated 29 November 2006 and in reply dated 20 December 2006. I have considered the submission carefully and I have taken all of them into account, even though in this judgment I may not specifically refer to each of the submissions. THE PLEADINGS 4 The plaintiffs' Statement of Claim issued by their solicitors pleaded their case as follows: '4. The defendant did, wrongfully and negligently on the 9th of February 2005 carry out work and trespass on the plaintiff's property a result of which was to damage the plaintiff's electrical mains which connected the electricity supply to our client's property. 5. As a result of this wrongful act on the part of the defendants the plaintiff suffered loss and damage in that they were put to the expense of repairing the electrical connections. The plaintiff claimed the sum of $15,000 repair costs. The Statement of Claim was very simply and somewhat inelegantly worded. The matter was set down for hearing on 21 April 2006 but the hearing was vacated. It was adjourned to 31 July 2006 for hearing. On 26 July 2006 the plaintiffs by letter gave notice that they intended to amend their Statement of Claim by adding to paragraph 4 the following: 'Further and in the alternative, the damage to the plaintiff's electrical mains and ensuing loss of electricity supplied to the plaintiff's property resulting from excavation activities on the second defendant's property constituted an act of nuisance for which the defendant's are responsible.' The amendment was allowed over objection. 5 The Defence filed on behalf of the contractor of the first defendant, Proline, did not admit that the plaintiffs were the owners of property 34 Clishold Street, Wahroonga. It admitted that it was conducting excavations on the second defendant's property, 32 Clishold Road, Wahroonga. It denied it was negligent or had trespassed. The first defendant did not filed a formal Defence to the count of nuisance. The matter proceeded on the basis that the nuisance was not admitted. 6 The second defendant filed its Defence on 13 October 2005. It did not admit that the plaintiffs were the owners of the property 34 Clishold Street. It denied that the first defendant had been guilty of negligence or had trespassed, and although a further Defence was not filed, at the hearing denied that the first or second defendants were guilty of a nuisance. THE ISSUES 7 The pleadings and the evidence presented in the matter raised the following issues for determination: (i) Did the plaintiffs prove ownership of the property 34 Clishold Street, Wahroonga? (ii) Where was the steel conduit pipe situated relative to the boundary between the plaintiff's property, 34 Clishold Street and the defendant's property, 32 Clishold Street, when the incident with the excavator occurred. (iii) Did the damage caused to the steel conduit pipe caused by the excavator entitle the plaintiffs to succeed in trespass, negligence or nuisance. (iv) The quantum of damages. 8 Mr Bateman for the plaintiffs conceded that if the metal conduit pipe containing the electrical mains was inside the second defendant's property when it was damaged by the excavator, then the trespass and negligence counts could not succeed. He further submitted that the relevance of the disputed facts fell away in relation to the nuisance count. 9 I propose to set out a summary of the evidence of the witnesses called for the plaintiffs and the defendants. I propose to determine first the factual dispute as to where the cable was situated when it was damaged by the excavator. EVIDENCE FOR THE PLAINTIFF Marcel Aouad 10 Mr Aouad's statement dated 9 March 2006 was tendered as Exh.1. He was a director of Odia, one of the plaintiffs. He said that on 9 February 2005 at about 3pm he was contacted by the defendants' managing agent to advise that the plaintiffs' tenants at 34 Clishold Street had lost power as a result of an incident involving the first defendant operating a bulldozer, so as to rupture the electricity connection located on the plaintiff's property. His managing director arranged for an electrician from Kuringai Electrical Company to investigate the problem. They reported that it was a serious problem and immediately notified Energy Australia to disconnect the power. 11 Mr Aouad said date he was able to contact Mark Giovanelli of the first defendant on 10 February. 12 Mr Aouad attached a report of an engineer Mr Al-Emadi which report was inadmissible. He attached an invoice from Fairland Constructions Pty Ltd in the sum of $11,198 and an account from Kuringai Electrical Services in the sum of $473.00. He also attached a survey report from ATS Land & Engineering Surveyors Pty Ltd. 13 In evidence in chief Mr Aouad tendered four photographs as Exh.2, 1 to 4. Photograph 1 showed a section of conduit pipe with a large mark on it. Photograph 2 showed the base of a large tree clearly situated on Mr Aouad's property. It appeared that part of the root of the tree had been removed and damage caused to the bark of part of the tree. In the photographs 2, 3, 4 and 5 a stringline was shown and the pipe is well within the stringline. The steel conduit pipe appeared to be bowed near the base of the tree, and appeared to be bowed towards the defendant's property. It is clear from the photographs and not in dispute, that the excavator was working situated on the defendant's property. Mr Aouad said that the photographs depicted what he saw on the afternoon of the incident when he went to the property. He said he did not know who put the white string in the position it was shown in the photographs. He said Kuringai Electrical Services arranged to provide temporary electricity to the house by leads connected to neighbours' properties. Mr Aouad was questioned as to conversations he had with Mr Giovanelli. Mr Aouad had great difficulty in giving the conversations in direct speech. In the end I did not think much turned on the conversations. I propose to set them out in the evidence of Mr Giovanelli. I was satisfied he had a much better recollection than Mr Aouad. Mr Giovanelli was able to give direct speech. 14 Mr Aouad gave some evidence of seeing work being done on 19 and 20 February 2005 on behalf of Fairland Constructions Pty Ltd to remedy the damage. He said he saw them excising the damaged part of the steel conduit pipes and replacing it. He produced to the court part of the excised conduit pipe, which was tendered as Exh.3. He identified marks which appeared on the cable. 15 By leave, the plaintiff was allowed to produce further photographs showing the damaged tree after the fence had been erected. Mr Aouad had taken the photographs on 28 July, two days prior to the hearing. 16 In cross examination Mr Aouad said he had not handed a copy of the certificate of title, rate notice or land tax notice showing the owners of the property to his solicitors. He agreed he had no written authority from the co-owner in relation to the proceedings. He said he had no bank statements or accounts showing details of the payments made to Fairland Constructions. He said Elie Moubrak prepared a quotation for Fairland Constructions. He said Moubrak did not do the work, but the electrical work was done by a Mr Steepo. 17 Mr Aouad would not concede (T, P25,L35): 'that the bow is created by a large root of this particular tree.' 18 He was shown photograph 5 attached to the report of Anthony Capaldi (Exh.11). Mr Aouad conceded that there were photographs to suggest, or to show, that the bow in the conduit was directly in front of the damaged tree. He denied that at its furthest point, the conduit was located 15 centimetres onto the defendant's property. 19 Mr Aouad agreed that he suffered no personal inconvenience directly from the loss of power. He agreed that the tenants suffered that inconvenience. He agreed that about 14 metres of channel was dug to repair and replace the damaged conduit pipe. He said he did not know then, and still did not know, that the string shown in the photographs (Exh.2) was an offset marker. 20 Mr Aouad was then cross examined by Mr Thambyrajah, the director of the second defendant. Such cross examination made clear that the second defendant had nothing directly to do with the causing of any damage. He also objected to the fact that some of the photographs of the fence appeared to have been taken by someone standing on his company's property without permission. Anthony Todarello 21 Mr Todarello's statement was tendered as Exh.7. He is a qualified registered surveyor. His report dealt with his attendance at the plaintiff's property, 34 Clishold Street, on 20 May 2006. The evidence established that he attended the property previously after the incident on 9 February and a copy of the Survey Report which he prepared then, was attached to Mr Aouad's statement. That first plan of survey was referred to in evidence and was helpful as it established that the length of the conduit pipe which was replaced, was 14.49 metres. Moreover, Mr Todarello's first report established that at the point closest to the road where the pipe was replaced, the pipe was approximately 38 centimetres inside the plaintiff's property. At the furthest point from the road where the pipe was replaced, the pipe was also 38 centimetres from inside the plaintiff's property. On the copy given to the court the first distance is unreadable. During evidence Mr Todarello indicated on the plan the position of the tree near where the incident occurred. 22 In his report at para 7 Mr Todarello confirmed that the metal conduit pipe entered the ground at the street entrance 30 centimetres inside the plaintiff's property and continued in that course. His report at para 10 indicated that the tree where the incident took place, is situated 30 centimetres inside the boundary line on the plaintiff's property. He found part of the old pipe on the land of 32 Clishold Street on the adjoining land, but said "It is impossible to say one way or other where the original position of the pipe was before being pulled on or dragged by the excavating machine." He said he had seen a section of the pipe which was replaced which was misshapen and angular and marked with scratches consistent with having been dragged or pulled by an excavating machine. He said that it was impossible for him to say where the pipe was prior to its position being disturbed by excavation machine. 23 Mr Todarello said photographs 8 and 9 of Exh.8 showed the excavation carried out encroached onto the land of 34 Cilshold Street and damaged the established tree which was inside the boundary, that boundary being the middle of the fence post in photograph 9. He further said that photograph 10 showed the established tree and the area of excavation which is now filled with grass clippings, again on the plaintiff's land of 34 Clishold Road. 24 In cross examination Mr Todarello said he had no special qualifications in physics, mechanical engineering or metallurgy. He said he could not recall saying that part of the broken pipe still in the ground when he inspected the site on 20 May, was on the defendant's property at 32 Clishold Street. When shown a copy of his report, in particular paragraph 11, he conceded that it was. 25 Mr Todarello conceded that if the conduit at the base of the tree was 850 millimetres from the stringline, then that would indicate that the conduit was 150 millimetres inside the boundary of 132 Clishold Street. Elie Maubrak 26 Mr Maubrak's first report was tendered as Exh.9 and his subsequent report dated 17 November 2006 was tendered as Exh.10. Mr Maubrak was a director of E & C Electricals Pty Ltd. He deposed that he had been an electrician for eleven years. He said he had inspected the property at 34 Clishold Street, Wahroonga. He prepared his first report on the basis that he understood 80 metres of the metal conduit pipe had to be replaced, and he estimated the cost for that at $11,050. Subsequently when told that only 20 metres had to be replaced, he provided an amended estimate of $6,800. In cross examination he said he charged electricians out at $45.00 per hour. 27 That concluded the evidence for the plaintiffs. The first defendant then called its witnesses. EVIDENCE FOR THE DEFENCE Anthony Capaldi 28 Mr Capaldi's report dated 13 April 2006 was tendered as Exh.1. An earlier short report forwarded to the solicitors for the first defendant on 28 February was tendered by the plaintiffs during cross examination as Exh.12. His CV indicated that he obtained an Associate Diploma of Applied Science (Building) at Granville TAFE in 1992 and indicated other qualifications in building inspection and building reports. He inspected the site at 32 and 34 Clishold Street, Wahroonga on 21 February and 11 April. He therefore first inspected the site the day after the repairs had been carried out. He inspected the site with Michael Abbas a director of Aussie Excavations, the machine operator and Mark Giovanelli, project manager for the first defendant. In paragraph 2.1.2 of his report he said that they erected a stringline offset one metre from the boundary. He said this was done because it was not possible, because of shrubs and trees, to erect a line on the boundary. He said in para 3.1.3 that the two sections of the steel conduit pipe were exposed and he said they were measured to be within the property of the defendants. He said the measurement from the stringline to the conduit was 850 millimetres, indicating that the conduit was 150 metres inside the boundary. Mr Capaldi said the representative of Aussie Excavations exposed longer sections of the old steel conduit pipe which showed that it went back into the plaintiff's property and then ran inside his property parallel to the boundary. Mr Capaldi stated that in his opinion the aggressive tree root system had caused the conduit to be pushed into the defendant's property. 29 Mr Capaldi then estimated the proper costs of the repairs to be $2,528.95, based on the Rawlinson Guide. In his first report Mr Capaldi had reported: 'That the repairs undertaken had been done in a poor manner non compliant with Integral Energy standards.' He said in the earlier report that the whole of the steel conduit pipe should have been replaced. 30 In cross examination Mr Capaldi admitted that the criticisms which he had made in his first report were misplaced and on further enquiries by him of the proper electricity authority, indicated that the manner in which the work had been carried out was correct. 31 Mr Capaldi said when they arrived for the inspection on 21 February there was a stringline on the boundary, but that they moved it to an offset line to stringline one metre from the boundary and being one metre onto the defendant's property. 32 Mr Capaldi had said it was not possible for there to be a stringline on the boundary because of the presence of trees and grass. He said Mr Giovanelli had sprayed the brown mark in photograph 5 showing the correct boundary. 33 Mr Capaldi conceded that the excavator had hit the conduit and he said it was possible that the claw of the excavator had pulled the conduit back towards the defendant's property. He said it was not possible for the excavator to have pulled the roots of the tree and pulled the conduit out in that fashion, because of the marks on the conduit. He said there were no marks to indicate that the scoop of the excavator had struck the tree, and he believed the bark had been pulled off the tree when the roots of the tree had been pulled off. He conceded that he had no electrical experience or qualifications. Mark Giovanelli 34 Mr Giovanelli's statement was tendered but may not have been given a tender number. I have marked it as Exh.16. He said that in February 2005 he was employed as a project manager by the first defendant in respect of construction of town houses at 32 Clishold Road, Wahroonga, for the second defendant. He said that the first defendant had engaged Aussie Excavations Pty Ltd to undertake the preliminary excavation work at 32 Clishold Road and it was not necessary for him to be on site. He said the excavator was provided with the necessary survey plans and a copy of the Surveyor's Report was tendered as Exh.14. Significantly such Survey Report showed that along the boundary between the defendant's property at 32 and the plaintiff's property at 34 Clishold Road, survey pegs were placed at a one metre offset line to the boundary. He said that prior to commencement of the excavation he contacted Dial Before You Dig and found that there were no electrical lines near the boundary within the defendant's property. 35 He said he was contacted by Mr Abbas, the owner of Aussie on 10 February 2005 advising that the excavator had broken the electrical main cable for the next door property. He said he received a similar phone call from Mr Aouad. He said he told Mr Aouad he would contact his electrician and if it was the defendant's fault, it would be fixed. He said he spoke to a person Amhed from the Sydney Energy Group, who said he would inspect the property later that day. He said he was contacted by Ahmed and was given a preliminary cost of $5,000. He said he went to the property at 7am the next day. He said the survey boundary offset pegs were present and a stringline was set up from them to establish the boundary. He said the distance from the stringline to the steel conduit pipe cable was 675 millimetres, meaning that the mains cable was 325 millimetres inside the defendant's property. He said he told Mr Aouad the same morning that it was not the defendant's problem as the conduit was on the defendant's property. He said he told Mr Aouad that it could not be fixed up with a patch up job, but he was prepared to have the cable repaired at Mr Aouad's expense. Mr Aouad asked whether he could arrange for temporary power. He said he spoke to his own electrician and obtained a quotation for a generator. He said he phoned Mr Aouad and told him of those costs. He said Mr Aouad said that the defendant should be paying for it and hung up. He said he attended an inspection at the site with Mr Capaldi on 21 February 2005. 36 In cross examination Mr Giovanelli said at the inspection on 21 February that there was an offset line present and there wasn't a line on the boundary. Mr Giovanelli said he had been a builder for eighteen years. He said that the damaged piece of conduit appeared as though it had been hit and then dragged, and based on what he saw, he did not believe that the root was pulled and thereby pulled the pipe out. He said he believed the soil which had been pulled away from the defendant's property leaving a hole, had come out when the root had been pulled out. Greg Moffat 37 Mr Moffat's statement dated 24 July 2006 was tendered as Exh.15. He said he had been engaged by the first defendant to do the fencing work for the construction of town houses at 32 Clishold Street. He said he was installing the fence on the boundary, the excavator was clearing some ground and trees near the boundary line when all of a sudden steam began rising from the ground. He said the excavator stopped digging immediately. He brushed aside some dirt and grass and saw an electrical cable in the ground on defendant's side of the boundary. He said the excavation was being conducted wholly on number 32 and the excavator did not go over into the neighbour's property. He said there was a stringline set up from the surveyor's pegs which identified the boundary. He said there was a large tree right on the boundary and the electrical cable ran around the tree from the neighbour's property into number 32 and back into the neighbour's property. He said the electrical cable was at least 700 millimetres into the property of number 32. He said he and the excavator driver examined the cable and formed the view that there was nothing to be done as the cable was on the defendant's property. 38 In cross examination Mr Moffat said he was not operating the excavator. He was doing the fence and he said he had a stringline set along the boundary. He said the stringline stayed there until the fence had been erected. When asked whether he had in fact a setoff line, he said he could not remember and that it was over a hundred jobs ago. He agreed that the tree was situated inside number 34, but said the roots came into 32. He said the bark came off the tree when the root was pulled. He said he did not know how far the conduit pipe might have been dragged towards the defendant's property. 39 That completes the summary of the evidence. WHERE WAS THE STEEL CONDUIT PIPE SITUATED WHEN THE INCIDENT OCCURRED? 40 The only witness for the plaintiff who saw the damaged conduit still connected was Mr Aouad. For the defendant Mr Giovanelli and Mr Moffat saw the conduit in the position it was in after the incident. Mr Moffat was present at the time of the incident, Mr Giovanelli saw it approximately two days later. 41 I am satisfied particularly on the evidence of Mr Giovanelli and on the evidence of the photographs that there was an offset stringline used by the excavator. Such stringline marked the line one metre inside the boundary on the defendant's side. I am satisfied that Mr Moffat was mistaken when he said they were using a stringline on the boundary. I am satisfied Mr Capaldi probably got it wrong when he said at the inspection on 21 February, they moved the stringline from the boundary to the offset position, one metre inside the defendant's property. I prefer the evidence of Mr Giovanelli who said the stringline was in that position. The only possibility that the stringline could have been on the actual boundary on Monday 21 February was if it was put there by the plaintiff's contractor who repaired and replaced part of the damaged conduit on 19 and 20 February. I consider that unlikely, and in any event I do not believe much turns on such discrepancies. 42 Mr Aouad said he was not aware of the significance of the stringline when he went to the site on 9 February, the day of the incident. The photographs which he took (Exh.2) clearly show the position of the stringline, and the only inference is that the stringline represents an offset stringline one metre inside the defendants' property. 43 Mr Giovanelli attended the property at about 7.20am on 11 February. He said the survey boundary offset pegs were present and a stringline was set up from them to establish the boundary. He said that the distance form the stringline to the main cable was only 675 millimetres, meaning that the mains cable was 325 millimetres inside the defendant's property. 44 Mr Moffat, the fencer employed to do the fencing work on the property, was near the excavator when the incident occurred. He went over and cleared away some dirt and grass when he saw the electrical cable in the ground on the defendant's side of the boundary. He said the electrical cable was at least 700 millimetres into the property of number 32. I am satisfied Mr Moffat was wrong in relation to the stringline, unless he had a separate stringline on the boundary where he was working. I am satisfied the excavator was using an offset stringline. I was also somewhat concerned as to Mr Moffat's somewhat cavalier decision not to do anything in relation to the damaged conduit. I take that matter into account. 45 I was less impressed with the evidence of Mr Capaldi. He supported the defendant's contention that at the time of the incident the cable was within the property of the defendant. However, it seemed to me that in doing so, he relied almost entirely on information given to him and I was not satisfied that it was part of his expertise to be able to give an opinion with much weight as to the position of the cable at the time of the incident. I give his evidence little weight. 46 Mr Todarello apparently used the fact that there was soil missing from the plaintiffs' side of the boundary (being the area filled with clippings in photographs 4(1A) and 4(1B) to form an opinion that such soil had been moved by the excavator at the time of the incident. The photographs in Exh. 4 were taken after the fence was completed. I prefer the evidence of Mr Giovanelli that the soil came away when the tree root was pulled out. 47 The evidence of Mr Todarello, the surveyor, was that the actual boundary between the two properties was the centre of the timber posts erected for the purpose of the dividing fence. There was in my opinion one piece of objective evidence which assisted the defendant's case. Although at the time of the incident the worker was using an excavator, in my opinion he was not really doing excavation work, but clearing work. Photograph 1 of Exh.8, being one of Mr Todarello's photographs taken from the defendant's side of the fence, shows that the fence line was cleared by removing what appeared to be about 50 centimetres, or about 18 inches of soil. I am satisfied that that photograph together with photographs Exh.1 (A), Exh.4 (B&C) and Exh.2(3) that the fence was being constructed on the plaintiff's level of ground and not on the ground after it had been cleared. In my view the evidence indicates that the land was cleared not right up to the boundary of the land, but shortly within the defendant's boundary. In those circumstances it would not be expected that the workman on the excavator would want to excavate over the actual boundary line. The fence would then be uneven. 48 Based on all of the evidence I am satisfied, on the balance of probabilities, that at the time of the incident the plaintiff's steel conduit pipe was at least 15 centimetres or 150 millimetres inside the defendant's property. 49 I am also satisfied, particularly on the evidence of Mr Giovanelli and Mr Moffat, that the claw of the excavator came in contact with the electrical conduit. I am not satisfied that the claw only came in contact with the root of the tree and by that contact pulled out the conduit. That finding is supported by the objective evidence of the photographs of the conduit and is supported by the evidence of Mr Todarello. 50 I am further satisfied that when the root of the tree was pulled out, that a considerable amount of soil was dragged with it, and I am satisfied that the removal of the tree root caused the soil within the plaintiff's property to also come away. I am not satisfied that photographs showing the soil missing from that area and subsequently filled up with grass clippings was evidence that the claw of the excavator had gone over the boundary line and caused that damage. 51 I am also satisfied on the evidence that the claw of the excavator did not strike the tree so as to cause the bark to come off the tree. Mr Giovanelli said he did not any evidence of marks on the tree consistent with that occurring. I am satisfied that the bark came away when the root of the tree was dragged out. 52 I am satisfied that whilst generally the plaintiff's metal conduit pipe ran 30 centimetres on its side of the boundary parallel to the boundary where the incident occurred, the large tree clearly shown in the photographs on the plaintiff's property, by its root system had forced the steel conduit pipe onto the property of the defendant. I am satisfied on the evidence the bow in the steel conduit pipe (Exh.3) was more consistent with a bow caused by the root of the trees. I accept that the action of the claw of the excavator may well have pulled the steel conduit pipe further into the defendant's land. However, I am satisfied, particularly on Mr Giovanelli's evidence, that the steel conduit pipe was on the defendant's land when it was struck. CONSEQUENCES OF FINDING RE POSITION OF CONDUIT PIPE 53 Mr Bateman, Counsel for the plaintiff, conceded a finding that the metal conduit pipe was within the second defendant's property when it was damaged by the excavator, would mean the plaintiff could not succeed on the counts of trespass and negligence. I am satisfied that that is certainly so in relation to trespass. 54 I am also satisfied on the whole of the evidence that the plaintiffs cannot succeed in negligence. There was no other evidence called by the plaintiffs and it was not put to the defendant's witnesses, that the presence of the large tree so close to the boundary, should have alerted the excavator operator to the need for more care and attention when clearing the line opposite such tree. There was no evidence that additional care and attention would have disclosed the presence of the steel conduit pipe, and I am satisfied on the evidence that the plaintiff cannot succeed on the count of negligence. THE COUNT OF NUISANCE 55 I propose to set out the succinct submission made by Mr Bateman on the count of nuisance. He submitted as follows: 14. In applying the principles of the law of nuisance to this matter, the question of whether the conduit pipe was on the defendant's land or the plaintiff's land becomes irrelevant. 15. See Clark and Lindsell on Torts (11th Ed at page 561, paragraph 970): "A private nuisance may be and usually is caused by a person doing on his own land something which he is lawfully entitled to do. His conduct only becomes a nuisance when the consequences of his acts are not confined to his own land but extend to the land of his neighbour by unduly interfering with his neighbour in the comfortable and convenient enjoyment of his land." 16. Further, the person creating a nuisance will be strictly liable, in the sense that the taking of reasonable care is no defence. See Rapier v London Tramways Co (1893) 2 Ch 588 where Linley LJ says: "At common law, if I am sued for a nuisance and the nuisance is proved, it is no defence on my part to say, and to prove, that I have taken all reasonable care to prevent it." 17. The above principles are reflected in a number of authorities which include British Celanses Ltd v A.H. Hunt Capacitators (1969) 2 All ER 1252, Midwood & Co Ltd v Manchester Corporation (1905) KB 597 and Nor – Video Services Ltd v Onterior Hydro (1978) 84 DLR (3RD Ed) 221. 18. For New South Wales authority see Pantalone v Alaouie (1989) 18 NSWLR 119 where strict liability attached to the excavator without proof of negligence. 19. See also Fennell v Robson Excavations Pty Ltd (1977) 2 NSWLR 486. This authority is important for the question of who may be held liable in nuisance and, in this regard, see the judgment of Samuels JA at page 495 where he cites with approval: "For the creator of the nuisance is equally liable with the occupier of the premises, and in the law of nuisance, an owner is in general liable not merely for the acts of a servant, but also for those of an independent contractor --- The independent contractor may not be in occupation at all, and yet his employer may still be liable for his torts." And further; "He who by himself or by his servants by a positive act of misfeasance (as opposed to a mere non-feasance such as an omission to repair) creates a nuisance is always liable for it and for any continuance of it, whether he be the owner, the occupier or a stranger and notwithstanding the fact that it exists on land which is not in his occupation, and that he has therefore no power to put an end to it." 20. Under the above principles, both the first defendant and the second defendant are liable to the plaintiff's in nuisance. 56 Mr Hay, Counsel for the defendant, commenced his submissions on the count of nuisance as follows; 59. There is general agreement with some aspects of the plaintiff's submissions as they relate to the tort of nuisance. That agreement includes: - That reasonable care is not answer to the tort - That an owner of land is liable for the actions of his servant or contractor 60. However, it is submitted that the plaintiff's reliance upon the submissions regarding this tort are generally misplaced. A "private nuisance" has been described as "an unlawful interference with a person's use or enjoyment of land." 61. It is submitted that such nuisance may be occasioned by "actual physical damage to land" 62. That is, there are two separate and distinct "limbs" of the tort. One where the cause of action arises as a consequence of alleged damage to the land itself and one where the damage is occasioned by the loss of use and enjoyment. "My Lords, in matters of this description [nuisance] it appears to me that it is a very desirable thing to mark the difference between an action brought for a nuisance upon the ground that the alleged nuisance produces material injury to the property, and an action brought for a nuisance on the ground that the thing alleged to be a nuisance is productive of sensible, personal discomfort." 63. Again, this is an important distinction as only once the type of nuisance claimed is established can the question of who has standing to bring an action for damages be resolved. 64. It is submitted that in this case the allegation of nuisance is one of the latter kind (i.e. interference with use and enjoyment) as neither the broken conduit nor its contents are or could be land. 57 Mr Hay then made further submissions in paragraphs 65 to 72 largely based on the submission that steel conduit pipe and its enclosed cable, was not land and therefore the tort of nuisance by the plaintiff could not be maintained. 58 I do not accept those submissions. As Mr Bateman submitted in his submissions in reply, the steel conduit pipe clearly comes within the definition of land. The learned authors Trindade and Kane in The Law of Torts in Australia state as follows (p104); In relation to The Law of Torts in general, and the law of trespass in particular, therefore we can say that the word ' land' means not only the surface of any land, soil or earth, but also any buildings or structures that might be affixed to it or any mines sunk under it. The words include both things growing on the surface (such as trees and grass) and minerals under the surface. … The word 'land' includes the subsoil to any depth and air space above the surface to a reasonable height.' 59 I have no doubt that the metal conduit pipe comes within the definition of 'land'. 60 I reject Mr Hay's submission that the plaintiff is not entitled to sue for nuisance. The topic is covered under the paragraph headed 'Who can sue' at p636 of the text referred to by Mr Hay The Law of Torts in Australia by Trindade and Kane. In such paragraph the learned authors state: 'A more promising approach would be to try to relate the title the plaintiff must have to the interests the law of nuisance protects. If the damage in issue is physical damage to property, then the person with the right to sue ought to be the person with the obligation to repair, or the burden of repairing the property.' 61 In this case that would clearly be the plaintiff. The authors go on to state (p637): 'A person whose interest in the property is to have it back when someone else's interest comes to an end, can only sue for nuisance committed before the interest matures if the interest adversely affects the reversionary interest because it involves some permanent or long term damage to the property.' 62 That was clearly the case here. The plaintiffs as owners of the property would clearly be entitled to have the damage to the conduit pipe repaired and electricity connected at the end of the lease. To protect that reversionary right they were entitled to commence these proceedings. 63 I am of the view that Young v Wheeler (1987) Australian Torts Reports 80-126, the decision of Wood J referred to by Mr Hay, does not assist the defendant's case at all. That was a case where the owner of a property sued adjoining owners on the basis that the roots from the defendant's Cyprus trees had encroached onto the plaintiff's property. The roots however had not caused any damage, but were likely to. The damage to the plaintiff's pipes was caused by the roots of trees on the plaintiff's property. In those circumstances His Honour Wood J found that the plaintiff would be entitled to nominal damages only, and not for the damage which might in the future be caused to his trees by the defendant's trees. 64 This case was not a matter of potential damage. The damage to the plaintiff's property was actual and significant. 65 I am not therefore persuaded that the plaintiff's case in nuisance should fail because of the grounds submitted by Mr Hay. I have however come to the view that I do not accept the plaintiff's submissions in relation to the law of nuisance and the general principles. I have given serious thought to whether I should require further submissions from Mr Bateman. However, the claim is for a very small amount of money and costs are already very considerable. I am not confident that any submissions from Mr Bateman would persuade me to change my views, and in those circumstances it would seem to me to be putting his client to further unnecessary expense to require further submissions from Mr Bateman. 66 Returning to Mr Bateman's submissions, it seems to me that the submission made in paragraph 16 is too wide and does not take into account the type of considerations referred to by the learned authors of the Law of Torts in Australia at p633 as follows; (h) Type of damage There is old authority for the proposition that the reasonableness of an interference, especially in terms of the locality principle, is only relevant where the damage inflicted is injury to amenities and not where the plaintiff suffers physical injury or property damage. When this rule was laid down it seems to have been designed to mark the seriousness of material damage: people who live in urban areas have to put up with a certain amount of discomfort or annoyance from their neighbours, but they are not expected to tolerate physical damage to their property. The force of the distinction was heightened by the fact that liability in nuisance for physical damage did not depend on proof that the defendant had been negligent, that is, that D had failed to take reasonable precautions against injury; the liability was strict. Today, however, it seems that liability for physical damage in nuisance depends on proof of negligence and this has rather diminished the force of the distinction. It may be just as onerous to have to prove negligence as to have to prove unreasonableness of user. In Corbett v Pallas it was held that where a nuisance consists of damage caused by an increase in the flow of water entering P's land as a result of alterations by D to D's land, P does not have to prove unreasonableness of user, but D can raise as a defence that the use of the land was reasonable.' 67 The learned authors continue their discussion at p650 when discussing the relationship between nuisance and negligence and note that "the relationship between nuisance and negligence is one of the most obscure issues in the modern Law of Tort." At p653 the learned authors state as follows; 'The fact of the matter appears to be that if a claim for damages for past injury, especially if it is personal injury or damage to property, is framed in nuisance it is likely to be assimilated to a claim in negligence and the court will see the relevant issue in terms of reasonable precautions to avoid injury. The plaintiff will claim damages for past injury if P thinks that the risk of suffering further damage as a result of the activities of the defendant is so low that there is no need to seek an injunction or if there is insufficient evidence to satisfy the court that there is a significant probability of repletion of the injury. But if P is concerned about the future, P will frame the case in nuisance in order to be able to claim an injunction, and then the court is likely to decide the case in terms of fair distribution of the benefits and burdens of land use rather than in terms of reasonableness of precautions. Where the concern is with the past the question of what the defendant ought reasonably to have done will be decided quite narrowly with reference to the particular damage-causing incident. But when the concern is with the future, the question of reasonableness is asked with reference to the activity the defendant is conducting on the land which gives rise to the continuing interference with the neighbour's use of their land. The contrast can be seen by comparing Bolton v Stone (1951 AC 850) in which the risk of the plaintiff being injured again in the future was very small, with Miller v Jackson (1977 QB 8966) where the repetition of damage was almost inevitable. The former case was treated as a negligence case, the latter as a nuisance case.' 68 In Bolton v Stone the facts indicated that a person being on a side road of residential houses was injured by a ball hit by a player on a cricket ground abutting on that highway. The ground was enclosed on that side by a seven feet fence, the top of which, owing to a slope, stood seventeen feet above the level of the pitch. The wicket from which the ball was hit was about 78 yards from this fence and 100 yards from where the injury occurred. There was evidence that while over a period of years balls had been struck over the fence on very rare occasions, the hit then in question was altogether exceptional. 69 The House of Lords held that the members of the club were not liable to indemnify the injured person, whether on the ground or negligence or nuisance. 70 Counsel for the plaintiff in that case accepted that the plaintiff had to prove a want of care in both negligence and in nuisance. Lord Reed stated as follows; 'This case was also argued as case of nuisance but counsel for the defendant admitted that he could succeed on that ground if the case on negligence failed.' 71 In Miller v Jackson (1977) QB 966 a different decision was reached where the evidence indicated that the cricket ball was regularly hit into the house abutting the field. There the plaintiff succeeded in nuisance. 72 In the case before me there is no question of any continuing interference with the plaintiff's enjoyment of their property or to their tenant's enjoyment of occupation of the premises. Indeed it is significant that the very purpose for the clearing of the defendant's ground was to enable a safety fence to be erected to minimise any unreasonable interference to the occupiers enjoyment of their property during the construction of the town houses. 73 I have come to the view that this case is similar to the position in Bolton v Stone and is one of the categories of nuisance where it was necessary for the plaintiff to prove some fault on the part of the defendant, or at least some evidence, that the defendants should have realised that their clearing of the land on their property was likely to cause actionable damage to the plaintiff's property. 74 On the facts in this case, the plaintiff is unable to do so. There was no evidence of negligence on the part of the operator of the excavator. The defendant had taken the reasonable precaution of causing the necessary checks to be made in relation to the defendant's property on which the clearing was to take place to ensure that there were no electrical conduit pipes on that property. There was no evidence of any way that the first defendant could reasonably have been aware of the likelihood that the electrical conduit pipe laid 30 centimetres inside the plaintiff's property had been pushed onto the defendant's property. In those circumstances I am not satisfied that the plaintiff is able to succeed in nuisance against either defendant. 75 I return briefly to Mr. Bateman's submissions. I am not satisfied that his submission at para 18: 'For New South Wales authority see Pantalone v Alaouie (1989) 18 NSWLR 119 where strict liability attached to the excavator without proof of negligence.' represents a correct summary of the finding in that case. In that case excavation had been carried out on premises in preparation for the erection of a building on 312 Princes Highway, Forest Hills, His Honour Giles J found that the excavation work on 312 would have caused subsidence to the land of 310, even if no house was erected on that land. The house at 310 was damaged by the subsidence. His Honour found (p129 at G); ' Withdrawal of support from land is an actionable nuisance for which strict liability attaches without proof of any negligence Doulton v Mary Angus & Co; Byrne v Judd (908, 27 NZLR 1106).' 76 The excavation cases represent a distinct class of nuisance. I am not satisfied this case involved excavation in the sense of removal of support from land. The defendant was clearing the boundary line on its side of the boundary to enable a safety fence to be erected. 77 The facts in Fennell v Robson Excavations Pty Ltd (1977) 2 NSWLR 486 were almost identical with those in Pantalone v Alaouie. The excavation by the contractor on the defendant's property caused the adjoining block to subside cause 200 feet of palling fence along the boundary to completely collapse and 9 large trees near the boundary to descend into the subsidence. The excerpts relied upon by Mr Bateman from the judgement of Samuels JA are clearly relevant to this case in that there is no doubt that if the plaintiff could prove the count of nuisance, then the contractor, the first defendant, would be liable as the creator of the nuisance and it may well be that the second defendant would also be liable. The case does not assist the plaintiffs' in the proof of the nuisance only as to who can be sued. 78 For the reasons I have given, I am not satisfied that the plaintiff is able to prove the count of nuisance. It follows that the plaintiff's action will fail. 79 As a result of my decision on the question of nuisance, it is not necessary for me to decide the question as to whether the plaintiffs proved ownership of the property at 34 Clishold Street, Wahroonga. My preliminary view was that they did not, but if I was able to find in their favour on the question of liability, I would have given them the opportunity to reopen to prove ownership. 80 I found this a very sad case. On the evidence before me I was unable to find anyone liable in a legal sense for the damage to the plaintiff's steel conduit pipe. This matter was a very good example of the fact that accidents will occur and damage will be done, as a result of unusual combinations of circumstances, so that no one will be legally liable to compensate for the damage which is done. It is a very good example of the situation where owners of properties, if insured, should rely on claiming against the insurance company rather than resorting to the institution of legal proceedings and endeavouring to establish actionable blame. 81 I make the following orders: There will be judgment in favour of the defendants. 82 I would propose to make the following order in relation to costs: 1. Costs follow the event. The plaintiffs are to pay the first defendant's costs and disbursements on an ordinary basis as agreed. In default of agreement within 28 days, the costs and disbursements are to be assessed under the Legal Profession Act. 2. Costs follow the event. The plaintiffs are ordered to pay the legal costs and disbursements incurred by the second defendant during the period that the second defendant was legally represented, and thereafter to pay the witnesses expenses and disbursements incurred by the director of the second defendant as agreed. In default of agreement within 28 days, the disbursements, witnesses' expenses and expenses are to be assessed under the Legal Profession Act. 83 I shall hear from the parties in relation to the proposed orders. B.A. LULHAM DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.