Bijok v S J Weir P/L - [2011] SADC 20

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
BIJOK & ANOR v S J WEIR P/L
[2011] SADC 20
Judgment of His Honour Judge Boylan
23 February 2011
TORTS - NUISANCE
TORTS - NEGLIGENCE
Defendant builder excavated next to plaintiffs' boundary without adequate retaining structure. Plaintiffs' land subsided causing damage to plaintiffs' buildings. - Whether builder had constructed retaining wall in accordance with engineer's designs - whether weight of building on plaintiffs' land caused subsidence.
Held, defendant builder solely liable in both nuisance and negligence - no apportionment of liability.
Walker v Adelaide City Corporation (2004) 88 SASR 225 at 254 at [256] ff per Perry J, applied.

BIJOK & ANOR v S J WEIR P/L
[2011] SADC 20

Parts of John and Maria Bijok’s premises, especially their carport and driveway, were damaged while the defendant builder was excavating on land next door. Mr and Mrs Bijok now claim damages from the building company, which denies liability, claiming that the engineers who designed retaining walls used during the excavation works are to blame.
In my judgment, the builder is solely liable for the damage and I now set out my reasons for reaching that conclusion.
The Site
Mr and Mrs Bijok live at 2A King Street, Glenelg. Their house is in the section of King Street which runs east to west between the Patawalonga and North Esplanade. Before it was built up, the area consisted mainly of sand dunes. Accordingly, when the Bijoks built their house in 1967, the block was retained by a wall in a square U shape on all sides except for the frontage to King Street. The Bijoks were well aware when they built their house that the sandy soil could be unstable.
The Bijok house sits in the middle of the block. On the eastern boundary their concrete driveway runs from King Street up to a brick carport which has a concrete floor. South of the carport is another short section of driveway and then a brick garage. The driveway, carport and garage are slightly higher than the land immediately to the east.
In 2002 developers acquired the properties between the Bijoks’ and the Patawalonga and built there an apartment building named ‘The Moorings’, which was completed at the end of 2004.
The developers were Patawalonga Holdings Pty Ltd and ABA Glenelg North Pty Ltd. Both of those companies have earlier been defendants in these proceedings but Notices of Discontinuance were filed. The builder was S J Weir Pty Ltd which is the remaining defendant, its relevant director being Mr Robert Weir. His site manager was Mr Andrew Thiele. The engineer was Meinhardt PT Design Pty Ltd, its relevant director being Mr André Vreudenburg who was assisted by another engineer, Mr Daniel Lee.
The Central Issue
The plans for ‘The Moorings’ included a basement carport with an access ramp adjacent the Bijoks’ eastern boundary. Construction of the ramp required extensive excavation along that boundary which, in turn, required a temporary retaining structure to prevent movement of soil under the Bijoks’ property and possible damage to their buildings and driveway. The builder constructed a retaining wall which proved inadequate and soil escaped from the Bijoks’ property, causing subsidence, especially under their carport, and damage to the carport, driveway and house.
The plaintiffs’ case is that the builder, to save money, used a retaining structure which was not approved by the engineers and was inadequate.
The builder’s case is that it is faultless, that the engineers provided a design upon which it acted. It is not the builder’s fault that the structure was inadequate.
The engineer has never been a party to the action. Mr Vreugdenburg denies that Meinhardt ever approved, for use along the carport section of the boundary, the retaining wall which the builder used.
The chief factual issue for me to decide is this: did Meinhardt approve the wall built to retain the carport? Part of the answer depends upon the design history of the retaining structures.
The designs
From the earliest stages of design, it was clear to all those involved that there would have to be significant retaining structures on the Bijok boundary and that the soil type - loose sand - presented special difficulties. In its geotechnical report of 22 October 2002, Coffey Geoscience Pty Ltd described the soil at various levels and reported the need for temporary support during excavation saying:
‘Excavations of depths up to 1.5 metres in dune sand will not stand vertically even for a short period. As a result temporary support would need to be provided …’
Later in the report, Coffey’s said:
‘Careful consideration will need to be taken of allowable lateral movements of the retaining structure along [the Bijok boundary], where existing buildings abut the site. These existing buildings could be adversely affected should lateral movements become excessive. In addition, the footings of existing buildings may require underpinning depending upon their type, founding depth and location relative to the excavation …
The adoption of driven sheet pile walls is not recommended due to the potential for damage of adjacent structures through the driving vibrations.’
Coffey’s report was sent to Mr Vreugdenburg who was generally familiar with the soil conditions in the Glenelg area even before he received the report. He did not send a copy of the whole report to the builder but Mr Robert Weir was also familiar with the dune sand, having earlier been the builder of another development only a couple of hundred metres south of The Moorings. Mr Kokkinakis, an engineer called by the plaintiffs to whose evidence I shall later refer, was also familiar with the type of soil.
In 2002 and early 2003, during the tender and pre-contract stages, Meinhardt prepared various designs which were sent to the builder. A later design (S02-B), and the one upon which the builder tendered, showed the Bijok boundary including the north end of the driveway and the carport and some of the proposed retaining structure. The plan contains no detail of a retaining wall for the driveway, instead referring to a separate drawing. For the carport retaining wall the plan notes:
‘Mass concrete underpins to be installed in segments of 600 mm. Sequence of excavation and pouring of underpins to be in accordance with Day Number as noted above.’
In other words, Meinhardt proposed, by way of underpinning for the carport section, a series of concrete piers. They were not all to be poured at the same time but over a number of days so that piers poured earlier could support the gaps left by areas excavated for piers to be poured later. It is a slow method of construction. Further, Mr Weir always perceived problems with such mass concrete underpinning: he could not see how it could work in that soil type. So concerned was he that, before signing the contract, he had already made enquiries about using an alternative method.
The builder tendered for the contract partly on the basis of the plans prepared for the developers by Meinhardt. The initial tender price was in the order of $12 million, but after negotiations between the builder, the architects and the developers during the early months of 2003 the contract was eventually signed on 1 June 2003, the contract price being nearer to $10 million. The price was reduced after design changes were made in an effort to save money. The changes included changes to the plans for the basement carpark, changes reflected in Plan S02-B.
The first signs of trouble
Before the contract was signed in June, demolition and excavation work had already begun. In May, the Bijoks became alarmed because the method used to break up the foundations of the houses being demolished next door caused their house to shake. They became so concerned that they engaged the services of Mr John Bay, a consulting engineer. Mr Bay attended at their house on 30 and 31 May 2003 when he took levels and a series of photographs. The photographs include some areas of alleged damage pointed out to Mr Bay by the Bijoks. He wrote to the builder about Mr and Mrs Bijoks’ concerns although, at that time, he did not assert that there had been any damage caused. What Mr Bay had observed by that stage was not sufficiently significant for complaint. Thereafter Mr Bay acted for the Bijoks from time to time, as they needed his help.
Mr Bay, the Bijoks, Mr Robert Weir and Mr Vreugdenburg met on site on 4 June 2003. There was discussion about retaining walls. By that time, Mr Robert Weir had already received from Prospect Building Services a proposed alternative to mass concrete piers. Prospect’s quote for their proposed alternative work is dated 31 May 2003.
As a result of the discussions on 4 June, Mr Weir sent Prospect’s proposal to Mr Vreugdenburg who considered it and discussed it with Prospect’s representative, “Harry”. In a fax dated 5 June 2003 to Mr Robert Weir, Mr Vreugdenburg confirmed that he had reservations about the proposal owing to the type of ground. He said:
‘I expressed to him [Harry] the cautious nature required in the approach in that the type of ground is extremely unpredictable, speed is of the essence and in the event of a collapse he may have to revert to conventional methods.’
But, having said that, Mr Vreugdenburg did not preclude a trial of the procedure proposed by Prospect and he asked that he be informed about the results of that trial. In my view, Mr Vreugdenburg’s caution demonstrates his awareness of the nature of the problem presented by the sandy soil at the site and of the risks involved.
No trial was ever conducted.
Matters took a different turn when, on 11 June 2003, the local council issued an Enforcement Notice and all work on the site stopped. The notice did not deal with any problems specific to the Bijoks’ property but as a part of his response to the enforcement notice, Mr Robert Weir asked Mr Vreugdenburg for some designs for temporary retaining walls along the Bijok boundary. Mr Vreugdenburg drew plans1 which show a series of piers or (I-beams) at mainly 1150 mm centres with “lost form work metal deck spanning between piers”. That is, Mr Vreugdenburg proposed in his design that soil under the Bijoks' boundary be retained by installing a series of metal I-beams which would support, behind them, steel sheets so that the whole structure formed a wall intended to prevent any movement on the Bijok site.
1 Exhibit P1, Page 215, following; especially at Page 253
There is no dispute that Mr Vreugdenburg’s design, prepared by him on the evening of 12 June 2003, was a proposal for the driveway section only. Mr Vreugdenburg was quite clear about that in his evidence. At that stage, as far as he was concerned, mass concrete piers was still the plan for the area under the carport. Mr Weir also understood that the drawings of 12 June 2003 addressed the driveway section only. Weir said that those drawings left the carport area “in abeyance.”
Propping
At a site meeting a couple of weeks later, on 26 June 2003, Mr Vreugdenburg was present and there was some discussion about using, under the carport, a system similar to the proposal for the driveway: I-beams and lost form work. Mr Vreugdenburg said that he was prepared to consider such a system but subject to a proviso: propping was fundamental. In other words, he was saying that, were the I-beam system to be used for the carport section, each of the I-beams would have to be propped at the top; that is, the top of each I-beam would have to be supported by a prop running away from the beam at an angle of about 45 degrees. At that meeting, Mr Vreugdenburg made a note and prepared a sketch with the words “prop top” against it. He then instructed Daniel Lee to prepare calculations for his design showing props. Mr Lee prepared those calculations which were submitted to the builder on or before 14 July 2003.
When those designs were submitted to the builder, as far as Mr Vreugdenburg was concerned, propping was still essential.
The damage
Work proceeded along the Bijok boundary. Along the northern driveway section the builder inserted I-beams at 1150 mm and inserted metal decking behind them. It then continued to use that same system along the carport sections without propping the I-beams. Work was continuing on 2 August 2003 when a section beneath the carport subsided and damage was caused to the Bijoks’ carport, driveway and house. There is no dispute that that subsidence caused the damage the subject of the Bijoks’ claim.
Mr Vreugdenburg’s position is that Meinhardt had never proposed anything for the carport sections of the eastern boundary other than a system using props. The plaintiffs, relying on Mr Vreugdenburg, submit that the builder used an unpropped system and as a result of its doing so, in contravention of the engineer’s designs, the soil subsided.
The builder’s position
As I have said, Mr Robert Weir understood that the drawings submitted by Mr Vreugdenburg on about 12 June left the question of the carport “in abeyance.” He was, in conjunction with the architect, looking for ways to reduce the costs of the retaining work. It was for that reason that he had asked Mr Vreugdenburg to consider an alternative system for the carport section. Mr Weir was asked what was his understanding of the position when he received the detail prepared by Daniel Lee. He answered (at T449):
‘This was, as we had requested, a proposed alternative to possibly open up the centres of the I-beams thereby saving our client potentially some money.’
The effect of his evidence is that he understood the design as a design for both the driveway and carport sections with propping necessary only if the I-beams were at 1500 mm centres.
He went on to say that, while money could be saved by putting the I-beams at wider centres, the extra expense involved in the propping and the cumbersome nature of excavating beneath the props outweighed the minimal amount saved by reducing the number of beams. Accordingly, the builder did not proceed with that alternative.
Mr Robert Weir’s evidence was that he did not himself take up with Meinhardt the issue of continuing along the carport section with I-beams at 1150 mm centres, but unpropped. He said that he asked his site manager, Andrew Thiele, to do so. Thiele reported back to him in late June. Mr Weir then obtained a quotation from Australian Piling Company, dated 16 July 2003 for installation of thirty two I-beams along the Bijok boundary. The engineer’s drawings2 show only eleven I-beams, all of them being for the driveway section. When he was asked where the other beams were to go, Mr Weir answered that Andrew Thiele had had a conversation with Daniel Lee from Meinhardt.
2 Exhibit P1 page 251 at 253
I am being asked to infer, despite Mr Vreugdenburg’s evidence about the I-beam drawings and, despite the requirement in his sketch and in Lee’s calculation that props be used, that Lee approved a different system without any design being drawn and without reference to Mr Vreugdenburg.
Neither Thiele nor Lee was called. There was no explanation for Lee’s absence. There was what I consider a fairly unconvincing explanation for Thiele’s absence. When asked about Thiele’s whereabouts, Mr Weir said that he knew that he was in Darwin but that he had not been able to find him “as yet”. In those circumstances, I am not prepared to draw any inference adverse to either side from the absence of Thiele or Lee. I was not invited to do so. I shall decide the case on the evidence before me. The clear effect of that evidence is that, for the carport section Mr Vreugdenburg had designed a system which included propping. The relevant section of the boundary was not propped before 2 August. It may well be that Daniel Lee, on a visit to the site, saw that the work was proceeding without the props in place. I can take that issue no further. I accept Mr Vreugdenburg’s evidence and I find that, in contravention of the engineer’s design, the builder proceeded with an unpropped retaining structure. After the subsidence props were installed and the excavation proceeded without further subsidence. I infer from the lack of further subsidence that the propping design was adequate. Therefore the builder is solely responsible for the subsidence under the Bijok’s land.
Evidence of Mr Kokkinakis
Given that finding it is not strictly necessary for me to refer to Mr Kokkinakis’s evidence about the adequacy of the retaining wall next to the carport but I shall do so out of deference to Mr Jenner’s careful argument.
Mr Trevor Kokkinakis, an engineer, was called by the plaintiffs to give evidence about the cost of repairs to the plaintiffs’ property. I shall return to that aspect of his evidence.
He was cross examined on another topic. In 2004, he prepared a report for solicitors acting for the plaintiffs.3 In that report Mr Kokkinakis referred to the shoring on the eastern boundary of the Bijoks’ property. He described that shoring as involving the use of steel sections at 1.15 metre centres behind which lost formwork was positioned as the soil was excavated. He went onto say that he considered that method of shoring inappropriate for this site owing to the lack of cohesion in the sandy soil.
3 Exhibit P1, Vol 2 at p.464
The defendant relied upon Mr Kokkinakis’s evidence to support a submission that even the plaintiffs’ own witness was critical of the engineers. But that submission misses the point: Mr Kokkinakis was describing the unpropped method designed by the engineers for use along the driveway section of the boundary only. As I have found, the builder chose to use that same method for the carport section. The engineer’s design for that section included propping. Mr Kokkinakis’s report does not address the issue of whether or not the propped system designed by the engineers was suitable. Mr Kokkinakis’s opinion is, therefore, irrelevant.
Nuisance
The plaintiffs contend that the builder was the occupier of the adjoining land and that it created a nuisance when it interfered with the Bijok’s use and enjoyment of their land by withdrawing support from it.
Was the builder an Occupier?
The contract between the developers and the builder gave it possession and control of the site, although the clause giving such permission conferred on the builder only such control as was necessary for it to execute the works under the contract. That work, of course, included the excavation on the Bijok boundary. Further, in his response to the local council’s enforcement notice4, Mr Robert Weir said that the builder was in possession of the site and, in cross examination, he admitted that it was in control of it.5 I find that the builder was the occupier of the site at the time of the subsidence.
4 Exhibit P1 at p.285
5 Transcript 481-482
I also find that the builder was the creator of the subsidence because it was doing the excavation work.
Liability in Nuisance
An owner of land has a right to support offered to his land in its natural state by adjoining land. But that right does not extend to support for a structure - such as the Bijoks’ carport - on the land unless it is shown that the weight of the structure did not contribute to the nuisance.6 Mr Kokkinakis’s evidence is that the weight of the carport did not cause the subsidence although it extended its effects. To put it another way, had the carport not been there, the subsidence still would have occurred. In those circumstances, I find that the weight of the carport did not cause the subsidence and the builder is, therefore, liable in nuisance.
6 Walker v Adelaide City Corporation (2004) 88 SASR 225 at 254 at [256] ff per Perry J.

The plaintiffs also submitted that the weight of the carport was irrelevant because they had acquired an easement by prescription: But that principle, if it applies to Torrens System land, gives rights and obligations between landowners. The owners of the land being developed are no longer parties and I take this submission no further. But, in case I am wrong about this, I find that the Bijok’s house, carport and driveway had stood on the land since the Bijok’s built there in 1967.
Negligence
After the subsidence on 2 August 2003, there was further discussion between the builder and the engineer about how the builder should then proceed. Work eventually proceeded with the I Beams, which were already in place, propped. As I have said there was no suggestion of any further subsidence after that system was put in place and I infer from the successful use of the propping system that the propping system designed by the engineer was adequate for prevention of damage to the Bijoks’ land. Had the builder used that system in the first place, the subsidence would not have occurred.
As occupier of the site, the builder owed a duty to the Bijoks to take reasonable care to ensure its excavation work did not cause to their land damage that was reasonably foreseeable.
From previous experience in the area, the builder was well aware of the nature of the soil. Further, he had been reminded by Mr Vreugdenburg that the ground was “extremely unpredictable”. Accordingly, the builder was well aware of the risk to the Bijoks’ land caused by excavation immediately adjacent to it. It failed to take reasonable care to prevent such damage by using a retaining system other than that designed by the engineers. The builder is, therefore, liable in negligence for the damage done to the Bijoks’ property.
Section 72 of the Development Act 1993
Depending upon my findings of fact, I was invited to consider whether I should apply the provisions of Section 72 of the Development Act, 1993 and apportion liability between the builder and the engineers. Because I have found that the builder is solely liable for the damage, I need not consider the operation of that section.
Mr Bijok
Mr Bijok was generally an unsatisfactory witness. With great respect to him, it seemed to me that he was unable to understand many of the concepts canvassed in his evidence. He was often out of his depth; often saying that he was unable to recall events. On occasions I thought that he preferred not to recall events which, in his perception, might harm his cause. As it happens, I have been able to decide this case almost solely upon documentary evidence. But I must make a finding about one aspect of Mr Bijok’s evidence.
Mr Bijok gave evidence about some fairly minor damage to his house which he said had not existed before the demolition work began on the development site. When Mr Bay first wrote to the builder, long before the subsidence of 2 August 2003, Mr Bay made no complaint about damage caused by demolition or early excavation. I do not think for one minute that Mr Bijok tried to deceive me about that minor damage. In my view, very soon after work began on the development site, he became over sensitive about damage to his house. Accordingly, I am unable to find that any damage was caused to the Bijok’s premises before the subsidence of 2 August 2003.
Damages
Reinstatement
Mr and Mrs Bijok are entitled to recoup the costs of repairs to their property. There is very little dispute about the costs of those repairs. Mr Allan Stanley, a quantity surveyor, prepared an estimate of the costs. The only challenge to it, a fairly faint challenge, is his allowance for contingency fees. In my view, those allowances have been properly made and are reasonable. Accordingly, I award, under this head of damage, the sum of $125,400 (which sum includes GST) for the costs of repairing the damage.
Consequential loss
The plaintiffs claimed as “consequential loss” various amounts paid for professional fees to Mr John Bay, Mr Kokkinakis, to a firm of architects, and to two firms of solicitors. The defendant submits that some of these fees cannot be recovered because they were not incurred as a result of the damage caused on 2 August 2003. In my view, that submission is largely correct. As I have been unable to find that any damage was caused prior to that date, I disallow the claim for Mr Bay’s account dated the 30 June 2003. His remaining accounts are all in respect of services rendered after 2 August 2003. The defendant concedes that, at least in part, those fees are recoverable. Those attendances were mainly concerned with the engineering effects of the subsidence and are recoverable. On my view, the plaintiffs are entitled to recover the full amount paid.
Mr Kokkinakis’s fees may be recoverable on taxation insofar as he provided services as an expert. I decline to make any award here.
The work done by the architects, Archicentre, is not recoverable; it is providing suggestions about further legal advice.
The claims for legal costs paid to Mr John Bennett and to Clelands Solicitors, for work done before proceedings were commenced cannot succeed. Such costs may sometimes be recoverable when incurred as an attempt to mitigate the plaintiff’s damages but that is not the case here.7
7 See Austrust v Astley (1993) 60 SASR 354
Finally, there is a claim for some carparking fees. That claim has not been challenged and I allow it. Accordingly, under this head I award damages for consequential loss as follows:
John Bay  $9,042.00
Car Parking G.L. Parsons  $1,040.00
         D. Moriarty  $1,030.00
         Taplan Management  $   440.00
               $11,552.00
Loss of amenity
The plaintiffs also claim damages for loss of amenity and enjoyment of their land and for mental distress. They have lost enjoyment of their land by being deprived of the use of their carport since the subsidence in August 2003, but in the intervening time they have been supplied with undercover parking in nearby carparks. No doubt they suffered some inconvenience on account of having to park some little distance from their house but it is no more that inconvenience and I decline to award damages on account of it.
Mr Bijok gave evidence about his distress. Mrs Bijok did not give evidence at all. Mr Bijok told me that the builder’s conduct has “devastated” his life and ruined him and his wife financially. Mr and Mrs Bijok are elderly: Mr Bijok was 76 at trial. He retired as lock master at the Patawalonga weir some years ago. He and his wife had planned to finish renovating their house and to take holidays overseas in their retirement. On account of the costs they have incurred in relation to the “The Moorings” development those plans have come to nothing. I accept that he has suffered much distress since the subsidence on the 2 August 2003 on account of the damage done to his property on that day and its subsequent effects on his life. I make it clear that I am concerned only with distress suffered by him after that event.
Mr Robert Weir had dealt with Mr Bijok on a number of occasions before 2 August 2003 and it must have been plain to him that any damage done to the Bijok house would cause significant distress to Mr Bijok. To put it another way, the distress which Mr Bijok ultimately suffered was reasonably foreseeable. Such distress is compensable but compensation should be modest.8 In respect of Mr Bijok’s distress I award damages in the sum of $5,000. As I heard no evidence about the effects of the damage upon Mrs Bijok, I am not able to make any award of damages in favour of her.
8 Perry v Sydney Phillips & Sons [1982] 1 WLR 1297, [1982] 3 All ER 705, esp. 709 per Lord Denning MR. See also Clark v Gisborne SC [1984] VR 971.
Exemplary Damages
Mr and Mrs Bijok have claimed exemplary damages on the basis that the builder’s agent, Mr Robert Weir acted in an insolent and high-handed way towards Mr Bijok in disregard of their rights. Exemplary damages can be awarded on that basis.
The claim for exemplary damages is based mainly on Mr Bijok’s assertion that, on some date after 2 August 2003, Mr Weir turned up at the Bijok house with a cheque for $5,000.00 together with a document setting out terms of settlement. Mr Bijok’s evidence was that he was “shocked, deeply offended, and hurt” by that offer and by Mr Robert Weir’s behaviour. Mr Bijok refused to accept the cheque but Mr Robert Weir said that the figure of $5,000 was originally put forward by Mr John Bay, acting on behalf of the Bijoks, at a meeting on site soon after the subsidence. And in a letter to the builder dated 2 September 2003, the Bijoks said that they would consider “the offer of $5,000”. I am unable to find that Mr Robert Weir presented the cheque “out of the blue” and in the manner asserted by Mr Bijok.
The only other specific incident referred to to support a claim for exemplary damages was a brief conversation during which Mr Weir is alleged to have said to Mr Bijok that even aeroplanes caused houses to shake.
It was obvious during Mr Bijok’s evidence that he has become very emotional about the consequences of the “The Moorings” development to his house and upon his life. He is angry with Mr Robert Weir. I also have no doubt that Mr Weir was often frustrated in his attempts to resolve issues with the Bijoks. I am unable to find that he acted in such a manner that would give rise to an award of exemplary damages and I decline to make such an award.
Conclusion
There will be damages for the plaintiffs in the sum of $141,952.
The plaintiffs are to have interest on the judgment sum in the amount of $3,750.00.
The defendant is to pay the plaintiffs’ costs of the action to be taxed or agreed.