Lewis v The Council of Mosman [2001] NSWSC 1144

New South Wales Supreme Court

CITATION : Lewis v The Council of Mosman [2001] NSWSC 1144 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 20259/1994 HEARING DATE(S) : 7/11/2000 - 10/11/2000; 13/11/2000; 16/11/2000; 21/11/2000; 15/12/2000 JUDGMENT DATE : 13 December 2001

Colleen Anne Lewis (1st plaintiff) PARTIES : Michael Norman Rayhill (2nd plaintiff) The Council of Mosman (defendant) JUDGMENT OF : Hidden J at 1

COUNSEL : D Elliott (plaintiffs) D McGovern (defendant) SOLICITORS : Barkell & Peacock (plaintiffs) Phillips Fox (defendant) CATCHWORDS : Proceedings in negligence and nuisance - issue of liability only - question of causation. DECISION : Verdict for the defendant.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION 20259/94 HIDDEN J

Thursday 13 December 2001 Colleen Anne Lewis & Michael Norman Rayhill v The Council of Mosman

Reasons for Judgment

1 HIS HONOUR: The first plaintiff, Colleen Ann Lewis, is the owner of a property at 42A Bay Street, Beauty Point. (The property was acquired in 1963 by a company in which she had an interest.) A substantial house was built on the land in the late 60s. The second plaintiff, Michael Norman Rayhill, is Ms Lewis' husband. He has also been her solicitor over the years. Ms Lewis had resided in the home from its construction and Mr Rayhill joined her in 1976. There they lived together until the house was extensively damaged by fire on 1st May 1988. 2 It is the plaintiffs' case that the fire was a result of water seeping into the house, having flowed onto the property from a lane which was the responsibility of the defendant, the Council of Mosman. The plaintiffs have brought proceedings against the Council in negligence and nuisance. I am asked to determine the question of liability only. 3 The relevant part of Bay Street runs from south to north. The ground slopes steeply from Bay Street in a westerly direction towards the water at Quakers Hat Bay. The lane, known as Pulpit Lane, is really a bush track running west from Bay Street down to a reserve on the waterfront. The plaintiffs' property, number 42A, is a battleaxe block above the waterfront and immediately to the south of the lane. Access to the property is gained by a fairly long, sloping driveway. 4 The house at 42A was built into the hill and had three levels. The front door was on the top level, level three, and the driveway led to a garage on that level. There was a small courtyard outside the middle level, level two. The bottom level, level one, contained the laundry and the plant room, a separate room in which the electrical fuse box was housed. 5 The days leading up to the fire were wet and there was heavy rain on the day before it, Saturday, 30 April 1988. According to the plaintiffs, water pooled in the courtyard at level two to a depth of about thirty centimetres. It seeped into the house through the cedar doors giving on to the courtyard. The fire broke out after 2am on the Sunday, 1st May. It started in level one, although exactly where is a matter of contention, and spread to the upper levels. Whether it was the rainwater which caused the fire is very much in issue and it is best to deal with that matter immediately.