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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS 1660 OF 2016 (COMM)
BETWEEN:
MINERAL RESOURCES OK TEDI
NO. 2 LIMITED [1-27966]
Plaintiff
AND:
NATIONAL CAPITAL DISTRICT
COMMISSION
First Defendant
AND:
PHOENIX BUILDERS
LIMITED [1-63758]
Second Defendant
AND:
OMEGA ENGINEERING
LIMITED [1-105936]
Third Defendant
Waigani: Hartshorn J,
2020: 17th April
DAMAGES – Trial – plaintiff claims damages for negligence, trespass and nuisance – alleged claim for damages arising from construction of footbridge by the defendants – principles for claim for negligence, trespass and nuisance discussed – plaintiff has not proven on the balance of probabilities that he is entitled to the damages arising from the alleged torts- proceedings dismissed
Cases Cited
Papua New Guinea Cases
Stettin Bay Lumber Ltd v. S.K. Goh (2011) SC1096
Catholic Diocese Wabag Board of Trustees v. Enga Provincial Government (2011) N4562
Overseas Cases
Caparo Industries PLC v. Dickman [1990] UKHL 2; (1990) 2 AC 605
Georgeski v. Owners Corporation [2004] NSWSC 1096
Hunter v. Canary [1997] AC 655
Owners-Strata Plan No. 13218 v. Woollahra Municipal Council [2002] NSWCA 92
Robson v. Leischke [2008] NSWLEC 152
Sedleigh Denfield v. Callaghan [1940] UKHL 2; [1940] AC 880
Counsel:
Mr. N. Kera, for the Plaintiff
Ms. L. Raula, for the First Defendant
Ms. H. Masira and Ms. J. Tera, for the Second and Third Defendants
17th April, 2020
1. HARTSHORN J: The plaintiff seeks damages and injunctive relief against the defendants for past and future loss of rental income as a result of the construction of a footbridge over Wards Road in the Hohola suburb of the National Capital District. The plaintiffs claim is based on trespass, nuisance and negligence.
Background
2. The plaintiff owns a property consisting of residential apartments known as Hohola Villas. The first defendant commissioned the construction of the footbridge by the third defendant. The construction was performed by the second defendant through internal arrangements with third defendant. The footbridge was constructed from between December 2014 to October 2016. A road used to access the plaintiff's property was blocked for periods of the construction. Following the completion of the construction, the said access road was shortened by about 10 metres.
3. The plaintiff claims that it has suffered a loss of rental at Hohola Villas during the construction of the footbridge and since.
Trespass
4. The plaintiff alleges that it owns or has a greater proprietary right to the access road. The plaintiff claims that the defendants' committed trespass when they entered onto and erected part of the footbridge on the access road without the plaintiff's consent and without any other lawful justification.
5. In regard to the plaintiff owning or having a greater proprietary right to the access road, it relies upon the wording in its State Lease for Hohola Villas, being Allotment 8 Section 2 Hohola, State Lease 31 Folio 7511, that the plaintiff owns Allotment 8 Section 2 Hohola, "as shown coloured yellow in the plan annexed hereto with all appurtenances thereto (hereinafter called "the Land")". The plaintiff further relies upon s. 3 Land Registration Act in support of this contention. Section 3 Land Registration Act is as follows:
"3. Definition of land in certain instruments.
(1) This section applies to certificates of title, transfers, leases, mortgages and charges.
(2) In an instrument to which this section applies, "land" includes all easements and appurtenances appertaining to the land described in the instrument or reputed to be part of the land or appurtenant to it.
(3) Subsection (2) does not limit, in an instrument, the meaning that "land" has apart from this section."
6. In s. 3(2) Land Registration Act, it is not clear whether, "... described in the instrument ..." refers to, "... easements and appurtenances appertaining to the land ..." (first meaning) or, "... the land ..." (second meaning). If it refers to the first meaning, this does not assist the plaintiff as no easements or appurtenances are described in the State Lease. If the second meaning is to be preferred, this does not assist the plaintiff as there is no evidence before the Court of an easement or appurtenance being granted to the benefit of Allotment 8 Section 2 or its owner in respect of the access road, or at all. From a perusal of the State Lease and the other evidence before the Court the plaintiff has not satisfied the Court that it owns or has a greater proprietary right to the access road as it claims.
7. One of the elements of the tort of trespass is that the plaintiff has a right to possession. In Stettin Bay Lumber Ltd v. S.K. Goh (2011) SC1096, the Court considered the issue of trespass to land and at [10], referred to the following principles stated by the New South Wales Supreme Court in Georgeski v. Owners Corporation [2004] NSWSC 1096:
"... trespass to land entails interference with possession and is maintainable only by someone who has a right to possession.”
and then later:
“A right of possession of the kind enjoyed by a lessee will support an action in trespass. Possession in fact may also be sufficient, at least as against a defendant having no right to possession.”
8. In this instance, the plaintiff has not produced evidence to the effect that it has a right to possession of the kind enjoyed by a lessee or at all, of the access road. Consequently, as one of the elements necessary for a claim in trespass to succeed has not been satisfied, the plaintiff's claim in trespass is rejected.
Nuisance
9. In respect of its claim based upon nuisance, the plaintiff alleges that the ability to easily and safely enter or exit its property, Hohola Villas, which was previously enjoyed, is now impeded by the presence of the footbridge footings on the access road. This has affected the tenancy of Hohola Villas and income from rentals has decreased significantly. The units have been offered on reduced rentals to attract tenants. In addition, the value of the property is likely to have depreciated but the plaintiff does not make a claim for the loss in value.
10. As to private nuisance, upon which the plaintiff's claim is based, in Owners-Strata Plan No. 13218 v. Woollahra Municipal Council [2002] NSWCA 92, at [50], citing Clerk & Lindsell on Torts 18th ed (2000) 19-06, the Court stated that private nuisance comprehends three classes of case. The first concerns cases of encroachment
onto a neighbour's land short of trespass. The second concerns causing physical damage to the neighbour's land. The third concerns
unduly interfering with the convenient enjoyment of the neighbour's land. Decisions of the New South Wales Court of Appeal of Australia
are persuasive in this jurisdiction. I consider the plaintiff's claim in private nuisance with regard to the three classes referred
to. I also have had recourse to the decision of Preston CJ in Robson v. Leischke [2008] NSWLEC 152.
11. As to the first and second classes, as I have found that the plaintiff has not established that it has a right to or a right to
possession of the access road and that it is not controversial that there has not been any encroachment or physical damage to the
plaintiff's property by the defendants on Allotment 8 Section 2, the plaintiffs claim does not fall within classes one and two.
12. As to the third class, unduly interfering with the convenient enjoyment of the neighbour's land, in determining whether there has been such an unreasonable interference, a balance must be maintained between the right of the occupier to do what he likes with his land and the right of the neighbour not to be interfered with: per Lord Wright in Sedleigh Denfield v. Callaghan [1940] UKHL 2; [1940] AC 880.
13. In Hunter v. Canary [1997] AC 655 at 685, the Court stated that such nuisances will generally arise from something emanating from the defendant's land. In Robson v. Leischke (supra) at [85], the Court refers to examples in authorities of England and Australia in respect of noise, vibrations, dust, settlement from soil erosion, pollution, smoke, odours and stenches.
14. The use of land by the defendant which does not cause something to emanate from his land, although it in some way interferes with the use and enjoyment by the plaintiff of his land, will rarely constitute an actionable nuisance: [86]. A defendant may erect a building or other structure such as a fence, or plant a tree on his land which interferes with the neighbour's enjoyment of his land: [86]. The building, structure or tree may spoil the neighbour's view, in the absence of an easement, restrict the flow of air onto the neighbours land, or takeaway light, yet such interferences are not actionable: [86]. Cases where an actionable nuisance has been held to exist where there has not been an emanation include where the land use was morally offensive to the neighbours or where the glare of a glass roof was dazzling. These examples are described as going to the limit of the law of nuisance: [87].
15. In this instance, following a consideration of the above authorities and the evidence before this Court, there is nothing that emanates from the first defendant's use of the access road that would constitute an actionable nuisance. Consequently, the plaintiff's claim in nuisance is rejected.
Negligence
16. In respect of its claim for negligence, the plaintiff alleges that the defendants had an obligation under common law or statute and/or equity to consult the public, in particular property owners in the area, whose rights were likely to be impacted by the footbridge project. The plaintiff alleges that the defendants failed in or neglected their obligation. Further, the negligence in this instance, submits the plaintiff, is the failure by the defendants to observe planning laws and regulations and to exercise the care and consideration expected of a municipal authority and as would be expected of a contractor carrying out works in close proximity to private property.
17. In an action for negligence, the plaintiff must prove that a duty of care was owed by the defendant to the plaintiff, that he breached that duty and that the breach caused injury or loss to the plaintiff: (see generally cases from Government of PNG v. Elizabeth Moini [1978] PNGLR 181, to Laki v. Gawi (2018) N7146).
18. As to the existence of a duty of care, I note that the plaintiff has not pleaded that the defendants or any of them owed the plaintiff a duty of care. The plaintiff's claim in negligence should be rejected on this basis. If however, I proceed further, the test to determine whether there is a duty of care is based on the following principles:
a) the plaintiff's loss must be a reasonably foreseeable result of the defendant's conduct;
b) there must be a prior sufficient relationship of proximity between the plaintiff and the defendant;
c) it must be fair, just and reasonable to impose liability on the defendant: (see Caparo Industries PLC v. Dickman [1990] UKHL 2; (1990) 2 AC 605 and Catholic Diocese Wabag Board of Trustees v. Enga Provincial Government (2011) N4562)
19. In regard to the first two principles, in this instance the first defendant's evidence is that it obtained the necessary Physical and Building Board approvals to lawfully construct the footbridge. The first defendant's application was approved under the category of Deemed Planning permission under class 13(i) of Section 50 Physical Planning Regulation (2007) (Revised). Further, the third defendant was informed by the National Capital District Building Board that as it did not consider the footbridge to be a building, the third defendant did not need to submit an application and should ensure that the footbridge was structurally sound. The plaintiff questions the approval but does not plead or seek relief in that regard.
20. As the first defendant had obtained necessary and related approvals, in my view, it is not reasonably foreseeable that the plaintiff would suffer loss by virtue of the defendants' conduct in constructing the footbridge on State land or that there was a prior sufficient relationship of proximity between the plaintiff and the defendants. It however, may be otherwise if there was no approval or the defendants constructed a structure outside of the approval.
21. As to the third principle, I am not satisfied that it would be fair and reasonable to impose liability on the defendants in circumstances in which the defendants had complied with necessary laws. Consequently, the principles to be satisfied to determine that a duty of care exists have not been in this instance. I conclude that the defendants did not owe a duty of care to the plaintiff. As a result, the plaintiff's claim in negligence is rejected.
22. Given that I have found that the plaintiff's claims in trespass, nuisance and negligence have not been successful, this proceeding should be dismissed.
Orders
23. It is ordered that:
a) This proceeding is dismissed;
b) The plaintiff shall pay the costs of the first, second and third defendants of and incidental to this proceeding;
c) Time is abridged.
__________________________________________________________________
Noel Kera Legal: Lawyers for the Plaintiff
Legal Division -National Capital District Commission: Lawyers for the First Defendant
Fairfax Legal: Lawyers for the Second and Third Defendants
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