N11012

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 167 OF 2016

BETWEEN:
PATRICK'S TRANSPORT
LIMITED
First Plaintiff

AND:
OPH LIMITED
Second Plaintiff

AND:
CASCADE APARTMENTS
LIMITED
Defendant

Waigani: Hartshorn J
2020: 20th May

DAMAGES - plaintiffs claim damages from defendants for causing land slip after excavation work carried out on adjoining property by defendant – damages consist of management time required to be spent by the principal employee of the first plaintiff in making and supervising all matters concerning the slip and the building of restraining wall -  Damages also sought for amount paid by plaintiffs for remedial work performed - first plaintiff has satisfactorily made out that the defendant has taken away by its excavations part of the natural support that the first plaintiff's uphill land has – as per Brouwers v. Street (supra) and Xpress Print v. Monocraft (supra)- whether the excavation work carried out by the defendant in 2010 was extensive and substantial as claimed by the plaintiffs or whether, as claimed by the defendant, the excavation work was negligible landscaping or removal of material that had washed down after substantial excavations were performed prior to the defendant's purchase of its property – excavation work carried out by defendant extensive and substantial - no evidence of any action being taken by the defendant to ascertain or minimise risks that would likely occur as a consequence of its excavation - defendant strictly liable for the act of removal of support – damages awarded to plaintiff   

CROSSCLAIM - defendant cross claims for loss and damage it alleges that it has suffered – Defendants’ claim based on trespass – whether defendant’s claim is based on trespass - no merit to the defendant's cross-claim – crossclaim dismissed

Cases Cited:
Papua New Guinean Cases

Government of PNG v. Elizabeth Moini [1978] PNGLR 181 
Lagan v. State (1995) N1369
Laki v. Gawi (2018) N7146

Overseas Cases

Dalton v. Angus (1881) 6 App Cas 740 
Brouwers v. Street [2010] NZCA 463
Xpress Print Pte Ltd v. Monocraft Pte Ltd & Anor [2000] SGCA 37

Counsel:

Mr. E.G. Andersen and Ms. G. Kogara, for the Plaintiffs/Cross Defendants
Mr. I. R. Molloy and Mr. D. Mamu, for the Defendant/Cross Claimant

TRIAL

20th May 2020

1. HARTSHORN J: This case concerns a dispute between adjoining landowners on a hillside in the centre of Port Moresby. There are large commercial buildings on each of the parties’ portions of land. On the northern area of the defendant's land there is no construction apart from a water tank. On the boundary to the northern part of the defendant's land are the plaintiffs' portions of land. They are physically higher up the hill. The relevant events occurred along this boundary.

2. On or before September 2010, the plaintiffs claim that the proprietor of the defendant's lower portion of land excavated to a significant extent, the northern portion of the defendant's land under its northern boundary with the plaintiffs' properties. This led to what was previously a gradient being excavated to become a large exposed vertical face directly beneath the plaintiffs' properties.

3. In March 2015 a slip occurred on a part of the excavated and unsupported face where the first plaintiff's land was located, exposing the first plaintiff's building footings.

4. The plaintiffs through the first plaintiff, commissioned and received various technical reports. These indicated that remediation work should be undertaken to ensure no further slippage and that the excavated and unsupported face was made safe. Following this court's orders, at the cost and direction of the plaintiffs, a restraining wall was engineered and built along the edge of the defendant's land. This restraining wall is predominantly situated on that portion of the defendant's land that had been excavated.

5. The plaintiffs' submit that this course that was taken, to construct a restraining wall after obtaining relevant court orders, thereby mitigating the damage caused by the loss of support to their land, was the proper and only safe course to follow rather than adopting the course of waiting for the possible collapse of their land.

6. The plaintiffs claim damages consisting of the management time that was required to be spent by the principal employee of the first plaintiff in making and supervising all matters concerning the slip and the building of the restraining wall. Damages are also sought for the amount paid by the plaintiffs for the remedial work performed.

7. The defendant cross claims for loss and damage it alleges that it has suffered. This is on the basis of its claim for trespass which is ongoing and permanent. As a result of the construction of the restraining wall, the defendant has lost access to and use of part of its property. It submits that its loss is not only in respect of current use as a carpark but includes potential use by redevelopment and consequently the sale price of the land and improvements.

Plaintiffs' claims

8. The plaintiffs' plead that the defendant's land provides natural support to both the first and second plaintiffs land, that excavation work carried out by the defendant in 2010 removed the natural support of the first and second plaintiffs land and in doing so the defendant breached its duties to the plaintiffs. The plaintiff submits that the defendant is liable because of the 'natural right' of support that the plaintiffs' uphill land has which was taken away by the defendant's excavations.

9. Further, the plaintiffs' submit that the defendant is liable in negligence as it breached the duty of care which it owes to its neighbours as its neighbours' land and buildings rely on the defendant's land for support.

10. As to the defendant's cross-claim, the plaintiffs' submit that there is no proper basis on which to grant the cross-claim and no proper quantification has been made in any event.

Defendant's claim

11. The defendant claims amongst others that any work carried out upon its land in 2010 was not illegal as it did not constitute building work for the purposes of the Building Act. Even if any such work was illegal, this does not render the defendant liable for any damage which occurs. The plaintiffs have not proved that the subject slip was due or substantially due to work carried out by the defendant. There is no direct evidence from any expert that but for the work carried out by the defendant in 2010, that the slip would not have occurred and even less that it resulted in the alleged loss or any expense incurred by the plaintiffs. Further, it has not been pleaded or proved that the work that Fletcher Morobe Constructions carried out was reasonably necessary as a result of the 2015 slip.

12. In regard to its cross claim, the defendant claims that the plaintiffs have committed trespass on its land which is ongoing and permanent. It has suffered a loss that exceeds K39 million based upon the land value of the plaintiff’s encroachment.

Law

13. The position at common law concerning the rights and obligations to support between adjacent landowners is considered in the House of Lord's decision in Dalton v. Angus (1881) 6 App Cas 740. Reference was made to this decision by both counsel. At 808 Lord Blackburn said:

" ..... The owner of land has a right to support from the adjoining soil not a right to have the adjoining soil remain in its natural state (which right if it existed, would be infringed as soon as any excavation was made in it) but a right to have the benefit of support, which is infringed as soon as, and not till, damage is sustained in consequence of the withdrawal of that support."

14. In Megarry & Wade, The Law of Real Property, fifth edition, 1984 pages 842-3, it is stated:

"In addition to his rights over his own land every landowner has a natural right to have his land supported by his neighbour's land, but it is more accurately described as a right not to have that support removed by his neighbour; for no action lies when support is removed by natural causes, such as the action of water lying in a gravel pit. .... The natural right, however, extends only to the land in its natural state; there is no natural right to support for buildings or for the additional burden on land which they cause. 'The owner of the adjacent soil may with perfect legality dig that soil away, and allow his neighbour's house, if supported by it to fall in ruins to the ground.' But if withdrawing support would have caused actionable damage even if nothing has been built, the damages recoverable include any damage to the buildings."

15. The New Zealand Court of Appeal in Brouwers v. Street [2010] NZCA 463 at [79] reproduced the above statement from Lord Blackburn in Dalton v. Angus (supra) and then said at [80]:

"This authoritative statement reflects the breadth of the principle. While, of course, excavation may be the most frequent or obvious mechanism of removal, none of the authorities limits the application of the tort accordingly. In our judgment the principal basis for imposing strict liability is the act of removal of support, however it is undertaken, subject only to the qualification that the loss of support must arise from a non-natural cause; if the loss arises from natural causes, no tort is committed. As a matter of policy, those who create structures on their land in this way, with knowledge of all attendant risks to a neighbouring property owner including deprivation of support, to his or her land, should be under a corresponding duty. Imposition of strict liability is consistent with settled nuisance principles and is a fair and reasonable mechanism for allocating risk."

16. In regard to the position in Australia, in the New Wales Law Reform Commission Report 84 (1997) "The Right to Support from Adjoining Land", it is stated:

" Support to land
2.1 According to common law, the right to the support of land in its natural state is an incident of the land itself. It is a "natural right" not an easement or grant, evolving from a recognition that land in its natural state requires support from adjacent soil, and the notion that a landowner has a right to the enjoyment of his or her own property. This right does not, however, entitle the landowner to insist that the adjoining land remain in a natural state."

17. In Singapore, the position is as stated in Xpress Print Pte Ltd v. Monocraft Pte Ltd & Anor [2000] SGCA 37. After a detailed consideration of the authorities, the Court of Appeal said:

"We believe that the true legal justification for the right of support is the legal principle encapsulated in the Latin maxim sic utere tuo ut alienum non laedas, which translates in English to: use your own property in such a manner as to not injure that of another. The importance of that principal is compounded in Singapore in view of our land use pattern, whereby all land available for commercial, industrial or residential purposes is used to a high intensity. The damage that might be caused if landowners were lackadaisical in their excavation works could be astronomical, not to mention the cost in human lives or injury to property."

"In the event, we are of the view that the principle in question operates to give a landowner a right of support in respect of his buildings by neighbouring lands from the time such buildings erected, and we so hold. Lee Quee Siew v. Lim Hock Siew is thereby overruled, and any part of Dalton v. Angus which is incompatible with this holding should in future not be followed."

"We acknowledge that in imposing a strict duty on landowners we are going further than our learning colleagues in the Commonwealth cases cited above, but the law must adapt itself to modern conditions and local policies. Furthermore, we see the solution we have adopted not so much as one which creates a new legal right, but rather as one which removes unjustifiable restrictions on a right already firmly established and accepted. So the enlarged ride has exactly the same characteristics as the 'original' right of support which operated only in respect of land in its natural state. In particular, it is not a right to have adjoining soil remain in its natural state, but rather a right to support from the adjoining soil, which in practical reality translates into a correlating duty of the adjoining landowner not to cause damage to his neighbour's land by excavating or otherwise removing his land without first securing alternative means of support."

Consideration

18. The first matter for consideration is whether the excavation work carried out by the defendant in 2010 was extensive and substantial as claimed by the plaintiffs or whether, as claimed by the defendant, the excavation work was negligible landscaping or removal of material that had washed down after substantial excavations were performed prior to the defendant's purchase of its property in 1999.

19. The evidence for the first plaintiff was given by Mr. Leung Chan, the Operations Manager for the first plaintiff and for the defendant, by Mr. Johnson Tia, the Managing Director and Owner of the defendant.

20. Mr. Chan gave evidence that the first plaintiff had purchased its property in about 2002 to 2003 and that he was familiar with the property from then. He gave evidence of the state of the land of the first plaintiff and defendant before 2010, of him personally attending the defendant's excavation site in 2010 and seeing heavy machinery including a rock breaker, that in 2010 the defendant conducted excavation work to extend the carpark and that the work consisted of 90 degree vertical cuts of the mountainside leaving the earth wall exposed and unsupported.

21. Mr. Tia gave evidence that the extensive works were all carried out prior to his acquisition of the defendant's property in 1999. The work carried out in 2010 were negligible landscaping exercises.

22. As to which evidence should be preferred, as submitted by the plaintiffs, the behaviour of Mr. Chan in 2010, after observing the work carried out by the defendant in 2010, in engaging a Consulting Geologist and Geotechnical Engineer to do a geotechnical assessment and give recommendations, and instructing lawyers to write on behalf of the first plaintiff, is behaviour that is consistent with someone who has observed something significant and worrying. It is not behaviour that is consistent with someone who has observed work carried out that could be described as negligible landscaping.

23. Mr. Tia's evidence of work being carried out in 2010, being negligible landscaping, was not supported by any other evidence, notwithstanding that Mr. Tia gave other evidence that he was an experienced businessman who keeps records.

24. Further, the 2010 Stratek report which was based on an inspection in September 2010, does not state or infer that the substantial work observed had been carried out some 10 years earlier. I concur with the submissions of the plaintiffs that in stating that the cut rockwall, 'may remain stable for a short period only' infers that the cut to the rockwall is fresh as it has not started to degrade.

25. Given the above and after considering all of the evidence of Mr. Chan and Mr. Tia, I conclude that Mr. Chan's evidence is to be preferred. I find that the excavations that resulted in the cut slope and large exposed steep face occurred in 2010 and not in 1999. Further, the work which was carried out in 2010 was extensive and not negligible.

26. The plaintiff also relies on various technical reports which were admitted into evidence subject to this court deciding the weight to be given to them. No reports were put into evidence by the defendant and so the evidence in the reports put into evidence on behalf of the plaintiff is unchallenged. I concur with the plaintiffs’ submission that the technical content of the reports is consistent and has been borne out by subsequent events. It is also of note that none of the technical reports indicate that the weight of the plaintiffs' buildings was relevant in regard to what was being reported upon.

27. I am satisfied that the first plaintiff has satisfactorily made out that the defendant has taken away by its excavations part of the natural support that the first plaintiff's uphill land has. On the authority of Brouwers v. Street (supra) and Xpress Print v. Monocraft (supra), both of which decisions are persuasive, the defendant is therefore strictly liable for the act of removal of support.

28. Having found that the defendant is strictly liable, it is not necessary to consider whether the defendant is liable in negligence. If however the plaintiff's claim in negligence is considered, then 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). The submission by the defendant that a claim in negligence in the circumstances is not able to be maintained is not in my view sustainable.
 
29. As to whether a duty of care is owed by the defendant to the plaintiffs, I refer to Xpress Print v. Monocraft (supra) in which reference is made to the Latin maxim sic utere tuo ut alienum non laedas, which translates in English to: use your own property in such a manner as to not injure that of another. In my view, this reference may be interpreted to recognise that there is a duty of care owed by a neighbour not to use its property in a manner that may adversely affect or injure its neighbour's land. This would include where an adjacent neighbour's land and buildings rely for support on the first neighbour's land. To then carry out extensive excavations at the foot of land upon which is a high-rise building, may be considered a breach of such duty. There is no evidence of any action being taken by the defendant to ascertain or minimise risks that would likely occur as a consequence of its excavation. On the evidence, I am satisfied that the conduct of the defendant does constitute negligence.

30. Given the above, and considering the evidence and submissions, I am not satisfied that there is any merit to the defendant's cross-claim.

31. In regard to the relief sought by the plaintiffs, the sum of K26,774.27 for Mr. Chan's time at the cost of his salary is sought. It is conceded by the plaintiffs that there are no supporting records. In the absence of such records, this court is not inclined to order this relief: Lagan v. State (1995) N1369. In regard to the claim for K3,164,566.90 being for the actual payments made by the plaintiffs for the remedial work, the cheques paid are in evidence. I am satisfied on the evidence that the plaintiffs' did spend the money claimed on the remedial works.

Orders

32. The Court orders that:

a)	Judgment is entered for the plaintiffs' in the sum of K3,164,566.90 being for 	payment of invoices from the plaintiffs' contractors for the engineering 	work, preparation of reports and the construction of the restraining wall;

b)	The defendant shall pay to the plaintiffs' the said sum of K3,164,566.90 	together with interest on the said sum at the rate of 8% per annum from the 	date of filing of the originating summons until payment of the said sum in 	full;

c)	The defendant shall pay the plaintiffs' costs of and incidental to this 	proceeding to be taxed if not otherwise agreed;

d)	Time is abridged.
__________________________________________________________________
Dentons PNG: Lawyers for the Plaintiffs/Cross Defendants                     
Adam Ninkama Lawyers: Lawyers for the Defendant /Cross Claimant