| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : BLYTHE & ANOR -v- HAMBLIN & ANOR [2009] WADC 192 CORAM : EATON DCJ HEARD : 14 SEPTEMBER 2009 DELIVERED : 11 DECEMBER 2009 FILE NO/S : ALB CIV 9 of 2004 BETWEEN : SUSAN BLYTHE KIM BLYTHE
Plaintiffs
AND
JACQUELINE MARDEE HAMBLIN
MICHAEL SEAN HAMBLIN
Defendants
Catchwords: Negligence - Liability admitted - Claim for damages for negligent destruction of native vegetation - Cost of re-vegetation - Loss of amenity - Exemplary and aggravated damages Legislation: Civil Liability Act 2002
District Court Rules 2005
Supreme Court Act 1935
(Page 2)
Result: An award of damages to the plaintiffs in the sum of $48,000 and interest from 4 November 2003 to the date of judgment at the rate of 6 per cent per annum in the sum of $9,153 Representation: Counsel:
Plaintiffs : Mr P N Bevilacqua
Defendants : Mr R L Hooker
Solicitors:
Plaintiffs : Thompson Legal Pty Ltd
Defendants : Gibson Lyons
Case(s) referred to in judgment(s):
Ali v Nationwide News Pty Ltd [2008] NSWCA 183
Attorney General v Blake [2001] 1 AC 268
Butler v Egg & Egg Pulp Marketing Board (1966) 114 CLR 185
Finesky Holdings Pty Ltd v Minister for Transport for Western Australia (2002) 26 WAR 368
Gray v Motor Accident Commission [1998] 196 CLR 1
Haines v Bendall (1991) 172 CLR 60
Livingstone v The Rawyards Coal Company (1879-80) 5 App Cas 25
(Page 3)
1 EATON DCJ: By writ of summons filed on 24 November 2004 in Albany the plaintiffs sued the defendants seeking damages for the defendants' alleged negligence. On 2 December 2004 the defendants entered an appearance and on 8 April 2005 filed a defence.
2 On the pleadings as they presently stand there is, as there was at the outset, agreement that the plaintiffs were, at all material times, the registered proprietors of lot 101 Minsterly Road, Denmark. The defendants were, in October 2003, the registered proprietors of lot 89 Minsterly Road, Denmark, that being immediately to the north of lot 101. 3 The plaintiffs assert that in about October 2003 the defendants engaged a contractor trading as "Denmark Sand and Earthmoving" to remove vegetation from lot 89. They further assert that, acting under the direction of the second-named defendant the contractor entered lot 101 with earthmoving equipment and cleared a portion of the natural vegetation growing there. By their defence the defendants admit that, at the material time, the contractor referred to inadvertently entered lot 101 and cleared vegetation growing there. The defendants deny that the contractor was acting under the direction of the second-named defendant. 4 The plaintiffs, by their amended statement of claim, assert further that they purchased lot 101 to enjoy the amenity of the natural vegetation and that, following clearing by the contractor, the vegetation cleared was deposited on their land without their consent. The plaintiffs plead further that the destruction of vegetation was caused by the negligence of the defendants, its servants or agents. The alleged negligence is particularised as follows: (a) the defendants failed to properly identify the common boundary between lot 101 and lot 89; (b) the defendants failed to provide adequate directions to the contractor as to the location of the boundaries of lot 89; (c) the defendants failed to properly supervise the clearing conducted by the contractor; (d) the defendants allowed the contractor and the contractor's equipment to trespass upon lot 101; and (e) the defendants failed to restrain the contractor from destroying the vegetation. (Page 4)
5 The plaintiffs plead that, by reason of those matters, they have been put to expense and have suffered loss and damage. They claimed further to be entitled to exemplary damages based on the proposition that the defendants acted consciously in contumelious disregard of their rights. 6 The plaintiffs particularise their claim for exemplary damages by pleading that the defendants were aware of the location of the boundary between lot 89 and lot 101, were aware that their consent to the entry upon the land and clearing of the vegetation had been neither granted nor sought and that clearing of the vegetation was done to improve the view from the defendants' home on lot 89 of the nearby Wilson inlet. 7 By their pleading the defendants deny that the plaintiffs' purchased lot 101 to enjoy the amenity of the natural vegetation, admit that the remains of the vegetation bulldozed by the contractor was left on lot 101 and that the destruction of the vegetation referred to was caused by their negligence or that of their agent. The defendants deny that the plaintiffs have been put to any expense, loss or damage and put the plaintiffs to proof of all such expense, loss and damage. 8 The matter was tried before me in September 2009. Counsel for the plaintiffs, prior to opening, applied to further amend the plaintiffs' statement and particulars of claim to seek aggravated damages, asserting that the defendants' actions in clearing the natural vegetation on lot 101 occurred in circumstances constituting a trespass of the plaintiffs' property which was "high handed and unjustifiable". By way of amended particulars the plaintiffs sought to assert that the defendants were fully aware of or wilfully shut their eyes to, the location of the boundary between lot 89 and lot 101, that after the event the male defendant advised the male plaintiff that he had accidentally knocked down a couple of "gnarly old trees", that the clearing of the vegetation was done on an angle resulting in improvement of the view of Wilson inlet from the defendants' property, that no apology was offered by the defendants to the plaintiffs and that, approximately one year after the event, the defendants again entered upon the plaintiffs' property and removed the cleared vegetation. 9 Counsel for the defendant did not consent to, but did not oppose, the application to amend. The application was, in the interests of disposing of all matters in issue between the parties, granted. The defendants subsequently filed a further amended defence denying the claim for aggravated damages. (Page 5)
Uncontested evidence 10 Susan Dawn Blythe grew up in Mount Barker, her father having a farm nearby. Her grandmother lived in Denmark. She and her siblings visited on a regular basis. After her grandmother's death in 1983 she and her family continued to visit Denmark, often staying at the Ocean Beach Caravan Park. 11 In 1986 the plaintiffs married. They have three children, two boys aged 20 years and 18 years and a girl aged 14 years. The family continued to holiday at Denmark, staying from time to time at the Ocean Beach Caravan Park with members of their extended family. 12 In early 1999 Kim Blythe became interested in acquiring a holiday property in the area. He and his brother-in-law discovered that lot 101 Minsterly Road was for sale. The plaintiffs went to the property and almost immediately decided to make an offer to purchase. Susan Blythe described it as having lots of trees including red flowing gums and paperbarks. It appeared never to have been cleared in any significant way apart from a clearing near the roadside where, it appeared, there had been a small building or shed. What remained was a concrete slab, a power pole, water pipes and a meter. 13 Lot 101 Minsterly Road is 2,223 square metres in area. Its Minsterly Road frontage is 22.54 metres long. The property runs east-west in alignment, its northern boundary being approximately 94 metres long and its southern boundary being approximately 100 metres long. The eastern boundary adjoins a reserve extending to the waters edge at Wilson inlet. A portion of the Bibbulman Track passes through the reserve. Susan Blythe estimated the width of the reserve from the eastern boundary of lot 101 to the waters edge to be about 20 metres. 14 The plaintiffs' offer to purchase was successful. The agreed price was $107,500. Settlement took place on 11 March 1999. They became the registered proprietors. She and her husband were, at the time, recreational kayakers. The property was close to Wilson's inlet and Ocean Beach, some 2 kilometres away. There was, in addition, a boat ramp nearby. Their purpose in purchasing the property was to provide a recreational base for the family on holiday and, ultimately, a place to retire. At the time the plaintiffs were resident with their family in Busselton. Kim Blythe was a director of a business engaged in the installation of underground power lines. The purchase of lot 101 Minsterly Road involved borrowing and the need to repay meant that (Page 6)
Susan Blythe, formerly a housewife and carer of children, was obliged to seek out part-time employment. 15 Their intention was to erect a two-storey residence with minimal interference with the surrounding vegetation. With that in mind, Kim Blythe cleared an area of bush some 25 metres from the road and slightly to the left of the centre of the property, careful to not interfere with a well-established tree which the plaintiffs describe as a red flowering gum. Prior to that clearing, apart from the concrete slab and former improvements associated with the provision of water and electricity, there was just a small path from the road to the area cleared by the plaintiffs. 16 The defendants, at the time of trial, had been married for about 10 years. Michael Hamblin is by trade a carpenter and joiner and his wife is a school teacher. They have no children. They live at 255 Bellfield Road, Denbarker on a small rural holding comprising about 420 acres. He combines work as a carpenter and joiner with running beef cattle on the property, the numbers ranging from 30 to 50 head depending on the seasons. 17 In 2003 they were resident at 255 Bellfield Road as tenants. Their landlord, who was aged and about to retire, indicated that he might be prepared to sell. He mentioned a price but it was beyond their means at the time. They looked, instead, to buying a property in Denmark. They spoke with a representative of "Carter Real Estate" who took them to a property known as 31 Minsterly Road, being lot 89, neighbouring lot 101 acquired in 1999 by the Blythes. When the Hamblins inspected lot 89 there was, near the road, a vacant dwelling, relatively newly built but needing a lot of work. The Hamblins made an offer to purchase on 2 July 2003. Following negotiation a price was agreed, the sum of $240,000. Settlement was to occur on or before 15 August 2003. In due course, the Hamblins became registered proprietors. 18 The Hamblins sold lot 89 for $450,000 on 24 November 2004. The property was sold subject to certain conditions including conditions requiring them to complete improvements or make further improvements to the residence such as the installation of flyscreens to all opening windows and external doors and the re-painting of all external cedar weatherboard. At the time of trial the plaintiffs were still the registered proprietors of lot 101 Minsterly Road. The defendants had acquired and become proprietors of 255 Bellfield Road, Denbarker, the rural property occupied by them as tenants in 2003. (Page 7)
Controversial evidence 19 This action arises out of the clearing of native vegetation on lot 101 in late 2003. The only direct evidence of what occurred at that time is that of Michael Hamblin who said that in about early September of 2003 he began to improve lot 89, carrying out work in close proximity to the house. Adjacent to the house on the southern side was an old laundry, toilet and carport with a wood shed attached. Working on weekends and on the occasional free day he demolished the outbuildings and undertook "general tidying up" around the house including the removal of rubbish, some domestic plants and a dead tree. Such work was preparatory to renovation of the house itself. He and his wife decided to engage a contractor to remove vegetation from the property further away from the house and its immediate surrounds. When asked why that decision was made he said that it would make the property "more manageable". 20 Before engaging a contractor he spoke with the neighbour on the adjoining property to the north, an elderly retired man. It seems that the neighbour to the north had no objection to the Hamblins' proposals for clearing. He then approached and spoke with a Mike Williams of "Denmark Sand and Earthmoving" in early November 2003. They arranged to meet on site a few days later. He told Mike Williams that he wanted to clear at the rear of his property. They agreed an hourly rate for a machine and its operator. A couple of days later the machine for the work arrived in the late evening and on the following morning at about 7 am an operator arrived to commence work. Michael Hamblin drove from Denbarker to meet the operator whose name was Michael Marsden. 21 Michael Hamblin had organised a skip bin to be placed on lot 89 in the days before the machine arrived. It had to be moved to facilitate access to the machine. He was aware of a concrete pad on the property immediately to the south of lot 89. He knew that the pad was on someone else's property but did not know, at that time, who the owners were. The skip bin was placed, for convenience, on the concrete pad. Once the bin had been removed the operator asked Michael Hamlin what was to be cleared. He referred to "a vein of trees" running down, as he said, the centre of the property and a series of trees running along his northern boundary. At the time of giving directions to the operator the two of them were standing on the eastern side of the house looking down lot 89 to its rear boundary which, of course, adjoined the reserve. When asked by his counsel what further directions were given to the operator Michael Hamblin said that the operator was told to undertake: (Page 8)
"a part clearing through the middle of lot 89 with vegetation either side of that and then there was another clearing to the rear of what I know now is lot 101, which I thought was lot 89 at the time. It was a slightly elevated piece of land so I said to him, I said 'look, if you're going to remove this vegetation' I said 'I don't want you really playing around down in the wet because, you know, it's a 20 tonne excavator. It's got quite a – quite a long reach on it'. I said 'if you can sort of clean those trees up and put them on that dry bit of country, just heap them up on that dry bit of country'." 22 Michael Hamblin remained working at the house while the operator cleared vegetation with his machine. In the early part of the afternoon he gave the operator instructions to remove another three trees and add them to the heap of destroyed vegetation that had been created earlier in the day. Having been given those instructions the operator left on the machine to undertake the further work. Michael Hamblin says that he walked back to the front of his property and encountered a man and his wife walking along the road. He recognised them as nearby neighbours. He said that the man remarked to him about the clearing work that had been carried out and expressed concern that the work undertaken was not all on the Hamblins' property. Michael Hamblin said that, at that point, he became confused and worried. He went then to the operator who was tidying up the heap of destroyed vegetation and said: "Look. There's some confusion going on here. I think I may have encroached on a neighbouring property". He says that he told the operator to cease work for the day. Michael Hamblin then tried to identify the boundary between lot 89 and lot 101. He then drove to the Shire of Denmark offices where he made inquiries. He was provided with details of the ownership of lot 101 and then drove home to 255 Bellfield Road, Denbarker. 23 That evening Michael Hamblin telephoned Kim Blythe and said to him: "I think I've actually cleared up a couple of your trees" and asked him how he felt about that. He said that Kim Blythe was quiet. Michael Hamblin says that he apologised. Kim Blythe referred to a red flowering gum. When asked by his counsel what Kim Blythe said during the telephone call Michael Hamblin replied: "He said two things to me. He emphasised a red flowering gum, he emphasised a pile of logs. He was very quiet. I pretty much did all the talking." (Page 9)
24 Kim Blythe gave evidence of a telephone call with Michael Hamblin in November 2003. He said that Michael Hamblin told him that he had inadvertently or accidentally knocked over a couple of "gnarly old trees" on their property. He said that Michael Hamblin inquired as to whether he might push them onto the Blythes' property and burn them at some later stage. Kim Blythe says that he replied: "Well, I'm not too sure about that until I get down there and have a look". That was, he said, the extent of the phone call. 25 "Denmark Sand and Earthmoving" rendered an invoice to Michael Hamblin for 11 hours hire of the excavator at $110 per hour. The total cost, including GST and other expenses was $1,474. The invoice is dated 5 November 2003. 26 In early December 2003 the Blythes visited lot 101 on a weekend, their first visit since the evening telephone conversation between Michael Hamblin and Kim Blythe. They were shocked to find the extent of the clearing of their property. They took photographs and a video.
The circumstances of the encroachment 27 Michael Hamblin said that, at the time of the purchase of lot 89, neither he nor his wife were informed as to the area of the property or the precise location of the boundaries. At the time of inspection he and the agent walked the length of the property from the house to the reserve boundary. The agent did not indicate the position of the boundaries. Michael Hamblin said that he noticed two star pickets on the reserve boundary. He assumed that they marked the presence of surveyor's pegs but he did not look for them. 28 Subsequent to the inspection the Hamblins discussed the property and, shortly after, made an offer to purchase. They were not shown a plan of the property. In cross-examination Michael Hamblin confirmed that he and his wife offered to purchase the property, without knowing its area, the position of the boundaries or seeing a plan of the lot. Ultimately, as mentioned, the purchase price was agreed at $240,000 following offer and counter-offer. In cross-examination Michael Hamblin denied having seen a certificate of title or a copy of one, referring only to the contractual documents. Those documents give no information as to dimensions and the position of boundaries. 29 He confirmed that, at the time of inspection, he noticed a concrete pad and path on the neighbouring property to the south. (Page 10)
30 He confirmed also that, in engaging the contractor to clear vegetation, it was his intention to clear a rectangle from the front of the house to the reserve. He was aware, at the time of purchase, that lot 89 was rectangular in shape, being aware of the shape, generally, of the lots in the subdivision along Minsterly Road to the reserve. Michael Hamblin maintained in cross-examination that at the time of the clearing by the contractor his belief was that the area being cleared was his property, that is, lot 89. It was, he said, only after his conversation with the Indian gentleman late on the afternoon of the clearing that he became confused about the position of the boundary between lot 89 and lot 101. He was none the wiser having visited the Shire of Denmark offices. 31 Counsel for the plaintiffs put to Michael Hamblin in cross-examination that he knew exactly where the real boundary between lot 89 and lot 101 was at the time of engaging the contractor in 2003. He replied that he did not. When confronted with the proposition that he had removed the vegetation to clear an outlook from the home on lot 89 to the inlet he replied: "I took out vegetation at the rear of the block. What vegetation – yeah, there was vegetation to remove from the rear of the block. Yes, there's – there's no – there's no disputing that." 32 In re-examination Michael Hamblin confirmed that he thought the boundary ran between the star picket at the point where the southern boundary of lot 89 met Minsterly Road to the southernmost of the two star pickets along the reserve boundary which was, of course, marking the point where the southern boundary of lot 101 meets the boundary of the reserve. 33 Also in re-examination Michael Hamblin, when asked how many trees on lot 101 were removed by the contractor, replied that there were three. He had not counted the number of trees cleared by the contractor following his discussion with the Indian gentleman so his evidence as to the removal of three trees was his estimate. It was not entirely clear to me whether that was his estimate, at the time, not knowing the position of the boundary or whether that is an estimate given in the light of the subsequently acquired knowledge of the true position of the boundary.
Findings of fact as to the circumstances of the clearing undertaken by the defendants in 2003 34 I find it incredible that the defendants would have purchased lot 89 without any knowledge of the area of the property being purchased, (Page 11)
the precise shape and orientation of that property and the precise position of its boundaries. What would have been obvious to the defendants at the time of purchase was that the lots along Minsterly Road running down to the reserve boundary were long, narrow lots, approximately rectangular in shape. It is clear that Michael Hamblin must have been aware, at least in general terms, of the position of his northern boundary. He took the precaution, before engaging the contractor, of discussing his proposals for clearing with the resident and proprietor of the neighbouring northern property. He was aware, when purchasing lot 89, that there was, quite close to Minsterly Road, a concrete pad and pathway which was not his property but rather, the property of a neighbour immediately to the south. He knew that the star picket on Minsterly Road indicated the presence of a surveyor's peg marking the boundary between lot 89 and lot 101 at Minsterly Road. He knew, if not with precision, at least the approximate length of the Minsterly Road frontage of lot 89. He claims, at the time of inspection, to have seen two star pickets which were apparently on the reserve boundary and assumed that each would mark the position of a surveyor's peg giving precise indication as to the presence of a boundary. Given that he knew the approximate position of the boundary between lot 89 and the neighbouring lot immediately to the north it is inconceivable, in my view, that he would have assumed that the furthest of the two star pickets marking a boundary with the reserve marked the southern boundary of lot 89 with the reserve when the other star picket to the north was obviously not marking the point at which the northern boundary of lot 89 met the reserve boundary. 35 I find that the defendants' intention in purchasing lot 89 was to make improvements to the dwelling on that property, thus enhancing its value with a view to resale. I find that their intention was not to acquire that property for any long-term purpose but rather to do so to reap a capital gain to facilitate the eventual purchase of 255 Bellfield Road from their landlord. Jacqueline Hamblin was, at the time, a schoolteacher working in the Shire of Mt Barker. The property at Denbarker was not only their home but it was Michael Hamblin's place of business both in terms of the base for his work as a carpenter and joiner but also in terms of the place where he ran the business of breeding cattle. He described the property as a "commercial cattle property". There had been some negotiations with the landlord. The Hamblins had made an offer to purchase. It had been rejected. Michael Hamblin, being a carpenter and joiner, was well equipped to undertake the renovation of the house on lot 89. The special conditions attached to the contract for its sale in late 2004 required him to either complete existing improvements or undertake further. I find that (Page 12)
the Hamblins did fulfil their purpose in the acquisition of lot 89 in that they sold the property some 17 months later for a gross profit of some $210,000 which enabled them to acquire 255 Bellfield Road, Denbarker. In the intervening period between purchase and sale the Hamblins never occupied the residence on lot 89. Jacqueline Hamblin visited the lot on no more than six occasions. As Michael Hamblin said, he was there the majority of the time on his own, his purpose being to carry out the work necessary to place the property back on the market at an appropriate time. 36 I find that lot 89 had a number of attractions which included proximity to both the Wilson inlet and Ocean Beach. The main room upstairs at the residence there had full length windows with a large sliding glass door leading onto a balcony which, but for the trees, would have had views to Wilson inlet. I find that the principal purpose in the clearing undertaken in November 2003 was to clear vegetation such that there was a view to the inlet thereby further enhancing the value of the property on resale. 37 Notwithstanding the protestations of Michael Hamblin I infer that he knew, at least approximately, where the boundary between lot 89 and lot 101 lay and that he gave instructions to the machine operator to clear vegetation knowing that such clearing would involve encroaching on his southern neighbours' property and destroying vegetation on it or, at the very least, not caring whether he did so or not. He had, it appears, no hesitation in placing the skip bin on the concrete pad knowing that to be on the neighbouring property. He did so without reference the plaintiffs. He had not, at that stage, even bothered to ascertain the identity or address of the plaintiffs let alone ask their permission. He did consult with the neighbour to the northern side of lot 89 but, I infer, did so because that neighbour was resident at that property. 38 If, as Michael Hamblin asserted in his evidence, he was uncertain, following the conversation with the Indian gentleman, as to the presence of the boundary between lot 89 and lot 101 he would surely have, before contacting Kim Blythe by telephone that evening, ascertained from the Shire the precise location of the boundary. It may have been that, had he done so, he would have established that his clearing did not amount to an encroachment given his evidence that he believed, initially, that it did not. Instead, when Michael Hamblin left the offices of the Shire of Denmark he did so only with the details of the proprietorship of lot 101, not with any information as to the precise location of the boundary. (Page 13)
39 I find that his telephone call to Kim Blythe on the evening in question was disingenuous not only because Michael Hamblin well knew that his contractor had encroached on lot 101 but also because he knew that the destruction undertaken by the contractor was far greater than that mentioned to Kim Blythe. I accept Kim Blythe's account of that conversation as being truthful and accurate. In doing so, I find that he was only informed that Michael Hamblin may have accidentally or inadvertently destroyed a couple of "gnarly old trees".
Events subsequent to the clearing undertaken by the defendants in 2003 40 By letter of 16 February 2004 the plaintiff's wrote to Michael Hamblin referring to his phone call of October 2003 and to his advice that some "accidental" clearing of trees had occurred on the plaintiffs' property, lot 101. The letter advised that the plaintiffs had inspected their property and were, in consequence, "extremely distressed and angered" at the damage done. They advised Michael Hamblin that "under no circumstances" was he permitted onto the property and that none of the destroyed timber remaining on the property was to be removed or burnt. The plaintiffs indicated that they would then having the damage professionally assessed and foreshadowed further contact through solicitors. 41 Following the clearing conducted by the defendants and the realisation of the extent of their loss, the plaintiffs instructed lawyers in Albany. In consequence, a letter was forwarded, dated 15 July 2004, to Michael Hamblin. That letter complained that a contractor, trespassing upon lot 101 and acting under the instructions of Michael Hamblin had cleared a "large swathe of the natural vegetation". The letter specified that the vegetation lost comprised two mature melaleuca pressiana trees, one mature corymbia calophylla tree, approximately 75 immature melaleuca species and miscellaneous shrubs, seedlings, forbs and grasses. The plaintiffs announced their intention to reinstate lot 101 to the condition that it had been in prior to the damage by replacing or replanting vegetation and that a certified arborist had been engaged to source appropriate vegetation and to provide an estimate of the cost of acquisition and replacement. The letter claimed that Michael Hamblin was liable to them for damages, specifying an amount of $104,250. The letter demanded payment of that amount by 5.00 pm on 26 July 2004 and the removal of the remains of the vegetation from lot 101 at Michael Hamblin's cost under the plaintiffs' supervision. (Page 14)
42 In due course the defendants instructed solicitors. By letter of 1 November 2004 a firm, Gibson Lyons, of Perth wrote to the plaintiffs' solicitors indicating that arrangements had been made for the removal of the pile of timber from lot 101 on Wednesday 3 November 2004. The removed timber was to be burnt on lot 89 following removal by a tracked excavator with a grab-claw attachment. Finally, the letter sought the plaintiffs' consent to what was proposed. 43 Lot 89 was sold by the defendants on 24 November 2004. It does seem as though the haste with which the fallen timber was removed resulted, at least in part, from the need to resolve the plaintiffs' complaints prior to sale. Given that the plaintiffs were resident in Busselton, that their solicitors carried on business in Albany and that the defendants' solicitor's letter advising of action on 3 November 2004 was dated 1 November 2004 it did seem to be inevitable that the action taken by the defendants on 4 November 2004 would be without the consent of the plaintiffs. By letter of 11 November 2004 the plaintiffs' solicitors wrote to the defendants' solicitors referring to the letter of 1 November in the anticipation that, in the absence of any consent, the foreshadowed action had not taken place. The plaintiffs' solicitor advised that legal action would be taken in the form of a writ and that the plaintiffs were, as a consequence "keen to preserve the evidence and does not require your client to remove the material at this time." Of course, the material had, by then, been removed. 44 By letter of 30 November 2004 the plaintiffs' solicitors again wrote to the defendants' solicitors complaining that there had been a further trespass upon lot 101 and enclosing, by way of service, a writ of summons issued out of the District Court of Western Australia at Albany. 45 It is the case that on 3 November 2004 the defendants engaged a Denmark contractor to use an excavator to remove the pile of timber from lot 101 to lot 89. The defendants had applied for and obtained a permit from the Ocean Beach Fire Control Officer and the timber, once removed, was burnt.
The extent of the vegetation lost in consequence of the clearing undertaken by the defendants in November 2003 46 The plaintiffs particularised the vegetation cleared by the defendants on lot 101 as being: (Page 15)
47 The defendants by their pleading, particularised the vegetation cleared as being: 48 Clearly, on the pleadings, there is agreement that the vegetation cleared by the defendants on lot 101 included two mature melaleuca pressiana trees, more commonly known as paperbark. The reference in the plaintiff’s pleading to a mature corymbia calophylla tree derives from an error in exhibit 28.1 being a report dated September 2005 prepared by Arbor Logic. The author of that report, Jason Royal, in the course of his evidence, said that the reference to corymbia calophylla in the section entitled "site details" should have been, in fact, a reference to corymbia ficifolia or red flowering gum. The corymbia calophylla is more commonly known as a marri. 49 There was a good deal of evidence about the tree described by the Blythes as a red flowering gum seen to be clearly in full flower in exhibit 2.2. It was also readily identifiable by reference to its distinctive trunk and branch structure as seen in several photographs, for example, exhibits 7, 10, and 11. 50 When referred to exhibit 2.2 Albert Adams, called by the defendants, suggested that the tree in full flower could well be a ficifolia but qualified his comment by saying that he couldn’t be definite that it was that species. He referred to "eucalyptus ficifolia" as being the scientific name for a species commonly called red flowering gum. 51 Jason Royal gave evidence that the corymbia ficifolia was common in the area having noted others, in particular, one at 28 Minsterly Road, Denmark and another on the front verge of 24 Minsterly Road, Denmark. He made an identification of those other trees by reference to the shape and size of nut on those trees. They were not, at the time, in flower. In response to the suggestion that the flowering tree in exhibit 2.2 was a marri, he said that such an identification would be wrong, the marri, generally speaking, having a white, occasionally pale pink flower. As to the suggestion that the same tree might be a eucalyptus patens or (Page 16)
blackbutt he again said that such an identification would be wrong because the blackbutt also has a white flower as opposed to a red flower. 52 Albert Adams was asked by counsel for the defendants to look at photo 2 in the Arbor Logic report (exhibit 28.1) and to attempt to identify the distinctive tree which had been repeatedly referred to in the evidence as the red flowering gum. He replied: "I wouldn't be confident to identify beyond doubt." 53 I find that the distinctive tree referred to by the Blythes as a red flowering gum was, in fact, a corymbia ficifolia or red flowering gum as identified, correctly in my view, by Jason Royal. His identification of it was more assured and precise whereas the evidence given by Albert Adams in that regard was considerably more tentative or guarded than his purported identification in his report of 24 January 2005 (exhibit 39). That tree, corymbia ficifolia, was one of the trees cleared by the defendants in November 2003. 54 Turning to the pleadings, in terms of particulars, the defendants concede only that the vegetation cleared, besides the mature melaleuca pressiana trees and the red flowering gum, were miscellaneous scrubs and exotic weeds. That pleading accords with Michael Hamblin’s evidence to the effect that he only cleared three trees from lot 101. The plaintiffs particularise their loss beyond the two mature melaleuca pressiana trees and the single mature corymbia ficifolia as being approximately 75 melaleuca species and miscellaneous shrubs, seedlings, forbs and grasses. Suzanne Blythe gave evidence that, in addition to the two paperbarks and the red flowering gum, the clearing involved the destruction of 30, 40 or 50 large tea trees. Her reference is to a species known as taxandria juniperina. Jason Royal’s conclusion was that approximately 20 to 30 larger mature specimens plus an estimated 50 to 75 smaller specimens of that species had been removed. Albert Adams estimated that the vegetation left after the clearing undertaken by the defendants comprised 80 to 90 per cent taxandria juniperina with substantial wind damage that had occurred over a number of years. 55 Those who were present at the time of the clearing in November 2003 were Michael Hamblin and Michael Marsden, the machine operator. Of those, only Michael Hamblin gave evidence. In cross-examination he confirmed that the contractor engaged by him had removed only three trees along the boundary. When asked as to the red flowering gum he did (Page 17)
accept that it was one of the trees removed by his contractor although he did not accept that it was, as described, a red flowering gum. 56 In re-examination Michael Hamblin was asked whether he was aware of how many trees the contractor removed on the day in question. He said that there were three. Later he said that he did not count the number of trees cleared but had a good idea of how many had been taken. He didn't count the trees in the pile of destroyed vegetation. 57 Both parties put photographs into evidence. The plaintiffs also relied on videotapes taken. Both parties engaged and called experts to give evidence. They were Jason Simon Royal for the plaintiffs and Albert Patterson Adams for the defendants. Both experts tendered reports, each relying upon material provided to them by their respective clients in the form of written or oral instructions and photographic material. Each had visited lot 101 and inspected the property. 58 The two reports became exhibits. Each relates to the assessment of damage suffered by the plaintiffs and, in particular, to an appropriate way to reinstate that which had been destroyed by the defendants' negligence and the cost of doing so. 59 In order to prepare their respective reports each expert had necessarily to rely on information provided in order to arrive at an assessment of what had been lost. 60 What was lost in terms of vegetation destroyed is a matter of fact. In order to properly make findings of fact as to what was lost in terms of destroyed vegetation I must have regard to, not only the oral evidence, but also to expert evidence and the whole of the photographic and videotape evidence to the extent that it can throw light on the issue. 61 I do not accept the proposition advanced by Michael Hamblin that he removed only three trees. Clearly the destruction was greater than that. The only other witnesses who saw lot 101 both before and after the defendants' clearing are the plaintiffs. They gave evidence of their recollections of the property from the time of its purchase to the clearing done by the defendants' contractor in November 2003 and as to their recollection of the property following that clearing when they visited in December 2003 or January 2004. Sensibly, they took photographs and videotapes. Despite difficulties of orientation and of placing the time of a particular photograph that body of photographs and videotape material does afford reliable evidence of the state of lot 101 before and after the clearing undertaken by the defendants. Quite obviously, there was no (Page 18)
audit of trees and vegetation either before or after and so precision in that regard, is unattainable. 62 Jason Simon Royal said that he was a director of a business called "Arbor Logic". He gave his full qualifications as being City and Guilds certificates in forestry from Hereford College in the United Kingdom in 1988 and a National Diploma in Arboriculture from Merrist Wood College, also in the United Kingdom, in 1992. Jason Royal is a member of the International Society of Arboriculture and of the Australian chapter of that society. He has 20 years experience in all aspects of tree transplanting, tree surgery, tree management and arboricultural consultancy. 63 Albert Adams has, relevantly, a Diploma in Nature Conservation attained at Cape Town in 1988. Upon arrival in Australia in 2001 he undertook a traineeship as an aboricultural tradesman, Certificate III, with a college of tertiary and further education at Manjimup. His resume (exhibit 37) describes him as undertaking the second year of an on-line degree in arboriculture through the University of Central Lancashire, in the United Kingdom. In evidence Mr Adams said that he had finished that degree and was enrolled as an honours student. In cross-examination Mr Adams said that he completed the TAFE course as a trainee while working for Southern Professional Tree Services in Bridgetown. It was a form of vocational training, the principal of the company for which he worked being a qualified arborist with qualifications similar to those of Mr Royal. Mr Adams said that he, too, was a certified arborist being a member of the Australian chapter of the International Society of Arboriculture. From mid-2003 to 2006 Mr Adams worked under contract as a project manager with Green Skills Inc being largely involved in restoration and revegetation projects. Since 2006 he has worked as an arborist in his own business. 64 There are two expert reports in evidence, the first provided by Jason Royal dated September 2005 (exhibit 28.1) with an addendum dated 15 September 2009 (exhibit 28.2) and the other provided by Albert Adams dated 24 January 2005 (exhibit 39). 65 Albert Adams was approached by the Hamblins in 2004, their major concern being to obtain advice as to the disposal of the pile of cleared vegetation on lot 101 in a way that least disturbed the site. He provided advice in that regard to the effect that it should be removed using a wide track machine with a grab-claw, entering and leaving lot 101 by the same route to minimise compaction. Soil compaction, he said, is the primary (Page 19)
cause of death of urban trees. Albert Adams first went to lots 89 and 101 in late 2004 and produced a report on 24 January in the following year. 66 Arbour Logic was approached by Susan Blythe in April 2004. Jason Royal conducted a site inspection on 27 September 2005. His report was produced in that month, presumably after the inspection. That report makes reference to an earlier report by Bruce Moorman of 19 May 2004. It appears that Mr Moorman was a consultant in the employ of Arbor Logic and that he was consulted by Susan Blythe when she first approached Arbor Logic. His advice formed the basis of certain information provided by the plaintiffs' solicitors to Michael Hamblin in the letter of 15 July 2004. In his report of 24 January 2005 Albert Adams makes reference to opinions expressed by Arbor Logic. I take the reference to be to opinions expressed in a report or advice prepared by Bruce Moorman. 67 The author of the Arbor Logic report of September 2005 is Jason Royal who, in preparing that report, took into account photographs of the site taken by the Blythes in 2001, further photographs taken by them following the 2003 clearing by the defendants, aerial photographs taken before and after the 2003 clearing, Susan Blythe's instructions as to the state of property before and after the 2003 clearing, the report of Albert Adams dated 24 January 2005 and that of Bruce Moorman dated 19 May 2004. 68 Jason Royal concluded that the trees and vegetation removed by the defendants in 2003 included a number of taxandria juniperina being between 20 and 30 larger, more mature specimens and between 50 and 75 smaller specimens, one mature corymbia ficifolia estimated to have a height of 8 metres, a trunk calliper of 700 mm and an age of at least 80 years, two melaleuca pressiana having a height of approximately 6 metres with trunk callipers estimated at 800 mn and an age of at least 90 years and a number of small trees, shrubs and other plants. It was, he said, not possible to quantify the latter from the evidence available to him. 69 Jason Royal concluded that the majority of remaining trees on lot 101 and on adjacent land showed good health and vigour. He concluded that the structural form of the remaining trees on site was generally good and that the main vegetation occurring in areas previously cleared was introduced herbaceous species. 70 Jason Royal noted that excessive clearing of an area with a relatively dense tree population can prove detrimental to the remaining tree (Page 20)
population because of root damage or loss caused by machinery during the clearing process, stability and health issues caused by increased exposure to winds and other environmental factors, soil compaction caused by plant or machinery resulting in a detrimental effect on root zones and increased soil erosion due to root loss and disturbance. He did not observe any evidence of substantial wind damage at the time of inspection but rather noted minor wind damage in small number of the canopies of trees then on site. He concluded that the potential risk for future wind damage had been increased by reason of the 2003 clearing but was unable to say whether the minor wind damage observed by him had been caused by that clearing. 71 Albert Adams estimated that an area of 625 square metres (being the lower one third of lot 101) had been affected by encroachment of machinery in the first half of 2004 resulting in possible negative secondary physical effects on the remaining tree and shrub resource. He did note that, in his opinion, the area was not in a "pristine state prior to the 2004 disturbance". The reference to the "2004 disturbance" is mistaken in that it is a reference to the clearing undertaken by the defendants in 2003. 72 In evidence Mr Adams said that his first visit to the site was in the summer of 2003/04 following Mr Hamblin's attendance at the Green Skills Inc. office. He said in evidence-in-chief that the clearing had left "an open gap between the continuum of the forest" and that, in consequence of the clearing, the remaining vegetation was susceptible to wind shear, meaning the snapping or breaking off of limbs due to wind. Upon attendance he noticed that there was still a lot of native vegetation on the western side of lot 101 which he described as being mature trees with weed and understorey. The mature trees, he said, were "leggy" meaning very tall and skinny as the result of being in a forest-type environment. 73 In his report of 24 January 2005 Mr Adams concluded that the majority of the species on lot 101 at the time of his inspection were taxandria juniperina. He accepted the loss of two melaleuca pressiana and the loss of the corymbia ficifolia (which he referred to as eucalyptus patens). 74 Having regard to the pleadings and the evidence, both expert and otherwise, as to what was lost as a result of the clearing undertaken by the defendants in 2003 I conclude, as a matter of fact, that it included one mature corymbia ficifolia, two mature melaleuca pressiana trees as (Page 21)
described by Jason Royal and about 75 taxandria juniperina trees being about 25 more mature specimens and about 50 smaller specimens along with a number of smaller shrubs, grasses and plants, some of which, according to the evidence, would have been within the definition of weed.
An appropriate approach to the question of damages 75 The fundamental principle guiding an award of damages or pecuniary compensation was enunciated by Lord Blackburn in Livingstone v The Rawyards Coal Company (1879-80) 5 App Cas 25 at 39 as follows: "That sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation." 76 That principle has been consistently restated in Australia (Butler v Egg & Egg Pulp Marketing Board (1966) 114 CLR 185, Finesky Holdings Pty Ltd v Minister for Transport for Western Australia (2002) 26 WAR 368 per Steytler J at 380). 77 In this matter, putting aside for the moment the claim for exemplary and aggravated damages, the plaintiffs seek damages for both the cost of reinstatement of the lost vegetation and the loss of amenity being, in effect, a claim to compensate them for the loss of the enjoyment of the destroyed vegetation while reinstatement is attempted. 78 In his report of September 2005 Jason Royal estimated the cost of transplanting and planting in an attempt to reinstate lot 101 to be between $152,493 and $161,265.50. That cost, he said, would involve the transplanting of two melaleuca pressiana trees at a cost of $71,621 including GST, the planting of between 50 and 75 agonis flexuosa trees at cost of between $33,297 and $42,069.50 (GST included), the planting of miscellaneous seedlings and grasses at cost of $1,375 (GST included) and site preparation works, annual maintenance and arboricultural monitoring for 10 years at cost of $46,200 (including GST). 79 It is clear that the corymbia ficifolia or red flowing gum is a species that cannot be readily transplanted. Similarly, taxandria juniperina is a species which cannot be transplanted. The reference to agonis flexuosa in the preceding paragraph arises from the recommendation of Jason Royal that, from an arboricultural point of view, the taxandria juniperina be replaced by agonis flexuosa more commonly known as the (Page 22)
Western Australian peppermint, that species being amenable to transplantation and comparable in terms of size, appearance and amenity to taxandria juniperina. Jason Royal has, in addition to his calculations for the purpose of reinstatement, calculated an amenity value for corymbia ficifolia, melaleuca pressiana and taxandria juniperina based upon the "Thyer Method of Amenity Tree Evaluation". 80 The defendant submits that the plaintiffs are entitled only to nominal damages on the basis that what is sought by the plaintiffs by way of damages would result in disproportionate compensation amounting to a windfall or unjust enrichment to them. 81 Counsel for the plaintiffs, in his final speech, submitted: "Since the November 2003 clearing they still have the property, they still own it, they can still go there. There are many other trees on the property. They can do as they please." 82 Counsel for the defendants described the Thyer method as misconceived and unhelpful. 83 Professor J G Fleming at p 282 of the 9th edition of his work "The Law of Torts" in dealing with assessment of loss with respect to damaged property in the case of land and property comments: "Despite a wide spread impression favouring difference in value, there is in fact no categorical rule. That measure is undoubtedly proper where the owner has already decided to pull down the house in any event or the cost of repair or replacement is out of all proportion, as when expensive engineering would be required to drain land inundated by the sea or whenever there is an available market for a similar property, as in the case of most urban dwellings. So also where a surveyor's appraisal failed to reveal that a house to be purchased had rotten timbers, the point of reference was the lesser sales value, not the cost of repair. On the other hand, a plaintiff may well be justified to insist on his right to repair or rebuild, as in the case of a home to which the owner has become especially attached, or of a factory without any reasonable alternative for carrying on the business and retaining its labour force." 84 The defendant says that the cost of reinstatement as claimed by the plaintiff is out of all proportion. The plaintiffs, who readily admit that the value of lot 101 is now greater than it was when it was purchased, say that (Page 23)
they acquired the property for a number of reasons one of which related to the presence of what appeared to them to be mature trees in their natural state. Unlike neighbouring lots, lot 101, it appeared, had not been substantially cleared. 85 The red flowing gum or corymbia ficifolia is estimated to have been at least 80 years old and the two melaleuca pressiana trees are estimated to have been at least 90 years old. The former cannot be replaced. The latter can be by way of transplanting. The Arbor Logic report (exhibit 28.1) states that mature melaleuca species of similar age and trunk calliper to those removed have been successfully transplanted in the metropolitan area and surrounding regions. Such a transplant would involve root-zone preparation and a comprehensive post-transplant maintenance after-care programme. Once established in its new location such a tree can be expected to continue to mature as normal without being any more susceptible to pests, diseases or environmental factors than any other specimen. The alternative to the transplant of mature melaleuca trees would be to plant smaller nursery stock which would, of course, not reach the same size or stature as a mature tree for decades. An extensive after-care programme would still be required. 86 So far as taxandria juniperina are concerned Jason Royal said, in his report, that a mature specimen might be between 60 and 80 years old, perhaps older. His proposal with respect to those is to replace the lost vegetation with a further 50 to 75 agonis flexuosa, or peppermint trees which, he said, appeared to have similar physiological traits. Taxandria juniperina are not amenable to transplant whereas agonis flexuosa are. He estimated the cost of planting 50 to 75 agonis flexuosa trees from nursery stock to be between $33,297 and $42,069.50, inclusive of GST. 87 Kim Blythe, when giving evidence, was asked in cross-examination whether he had considered any more economical alternatives to restore that which had been lost. He replied: "No, because what we have lost was mature trees, and I know that the only way to replace them is to put mature trees back in, and if we put small ones back in, well, I'm not going to see mature trees in my lifetime." 88 Susan Blythe was asked in cross-examination whether she had considered alternatives that were less expensive. She replied: (Page 24)
"Well, I believe … the arborist's report has a variety of sizes of vegetation in it, but I also believe that the only way we can have paper barks or those three large trees within our lifetime available to us is if mature specimens are transplanted." 89 Counsel for the plaintiffs, in final submissions, submitted that there needs to be compensation for the loss of amenity from the time of removal and "conceivably for the lifetime of the plaintiffs, because they will never get back what they had". 90 The foregoing begs the question of whether the plaintiffs can be put in the same position as they would have been had they not sustained the wrong committed by the defendants. The answer, it seems to me, is that they cannot be. It may well be that the mature red flowing gum, the two mature melaleuca pressiana and a number of the mature taxandria juniperina were magnificent trees combining in a bushland setting which appealed to the plaintiffs as a thing of beauty and pleasure. It is the case, however, that what was lost cannot be replicated both in terms of the resistance of some mature species to transplanting and in terms of the length of time required for younger species to grow again to maturity. The plaintiffs both recognised in their evidence that what had been lost could not, in practical terms, be recreated during their lifetimes. 91 It does, however, seem reasonable and practical that there should be an attempted replacement of what was lost by revegetation in the form of the planting of species native to the area. It does seem to me that the plaintiffs' may well plant replacement seedlings both for the red flowing gum and for the pressiana melaleuca. There is pleasure in planting a nursery tree and watching it grow although it will not replace the amenity of a lost mature specimen. 92 In Finesky Holdings Pty Ltd v Minister for Transport for Western Australia (2002) 26 WAR 368 Steytler J said (at p 381): "The extent to which ordinary principles of compensatory damages are departed from in cases of the kind to which I have referred depends upon the individual circumstances of each case." 93 He then made reference to the decision in the House of Lords in the matter of Attorney General v Blake [2001] 1 AC 268. In particular he noted the following from Lord Nicholls (at 278-279): (Page 25)
"So I turn to established, basic principles. I shall first set the scene by noting how the court approaches the question of financial recompense for interference with rights of property. As with breaches of contract, so with tort, the general principle regarding assessment of damages is that they are compensatory for loss or injury. The general rule is that, in the oft quoted words of Lord Blackburn, the measure of damages is to be, as far as possible, that amount of money which will put the injured party in the same position he would have been in had he not sustained the wrong: Livingstone v Rawyards Coal Co (1880) 5 App Cas 25 at 39. Damages are measured by the plaintiff's loss, not the defendant's gain. But the common law, pragmatic as ever, has long recognised that there are many commonplace situations where a strict application of this principle would not do justice between the parties. Then compensation for the wrong done to the plaintiff is measured by a different yardstick. A trespasser who enters another's land may cause the landowner no financial loss. In such a case damages are measured by the benefit received by the trespasser, namely, by his use of the land." 94 Counsel for the defendants made reference to unjust enrichment or windfall, the implication being that the plaintiffs might, by way of compensation, receive something for which they have no entitlement. In terms of the cost of revegetation where natural vegetation was removed, although there can be no replication of the plaintiffs' property prior to its removal in 2003, there can be a reinstatement of native vegetation such that, in due course, what was lost will be replaced by something approximating what was there before. The plaintiffs had already cleared a small portion of the native vegetation with the intent that it be the site of their future residence. There is no evidence that they were intending to do anything other than enjoy the benefits of the property in the longer term, firstly, as a family holiday venue from time to time and, secondly, as a place of retirement. There was certainly no evidence of an intention to ultimately clear and redevelop the property during their lifetime. To suggest that revegetation would amount to a windfall or unjust enrichment is to advance the proposition that what was lost was of no or only nominal value. It is true that what was lost had no marketable value as would have been the case had the defendants come onto the property and removed minerals or plantation timber grown for commercial purposes. My finding is that the defendants did have a commercial purpose not related to what was taken from the plaintiffs' (Page 26)
property but rather related to the enhancement of the value of their own in the form of a view to the inlet. 95 This is not a case where, as suggested by Lord Nicholls in Attorney General v Blake (supra), damages should be assessed by reference to the benefit derived by the wrong-doer. Justice requires, in my view, that there be an award of damages encompassing both loss of amenity and the cost of revegetation. Given that the latter, as already mentioned, will not put the plaintiffs in the same position as they would have been had they not sustained the wrong, there is no practical benefit to be had from attempting to do so having regard to factors already considered. What can be done, though, is revegetation on a more modest scale to replace, at least, something of the lost amenity during the plaintiffs' lifetime. 96 Albert Adams said that, in his opinion, the most economical way to restore the damage done would be to rehabilitate the area. Doing so would necessitate preparing the site which would include, as he put it, getting the weeds under control. Then, he said, he would plant out nursery grown stock. To provide that stock he would collect seed from the immediate area. That might be done by acquiring seed locally, for example, from a community nursery in Denmark. He had in mind taxandria juniperina, eucalyptus, paperbark and peppermints common to the area. Had the exercise been undertaken 4½ years ago the height of the canopy of the planted trees would be 2 ½ to 3 metres. If conditions remained favourable they would, he said, have continued to grow at a rate of between 300 and 500 centimetres per annum. The normal procedure, following planting, would be to visit the site annually to check on conditions and to undertake continued weed control. 97 In his report of 24 January 2005 he contemplated: 1. weed control and site management to allow successful germination and regeneration of native plants from the seed bank at $5,000 per annum; 2. select, supply and plant seedlings at $5 per plant; 3. strategically plant 2 and 3 year old container grown trees at $100 per tree. 98 He concluded that to stabilise and re-establish a community of local native plants on the site in such a way that the health and vigour of the community would be insured should cost no more than $25,000. That would, he said, include annual visits to the site for 2 or 3 years. (Page 27)
99 Jason Royal was referred to the Green Skills report prepared by Albert Adams and in particular to the recommended revegetation through the use of nursery stock. He agreed that the method proposed would result in similar numbers and species in terms of what was present before the destruction adding that the size would be markedly smaller and that it would be a good number of years "if not decades" (especially in the case of melaleuca and red flowering gum) before they reached the size of the trees removed. 100 It is the case that, rather than replant with taxandria juniperina Jason Royal thought that agonis flexuosa would be an acceptable alternative. In cross-examination he clarified the reason for that proposal. He doubted that the seed stock for taxandria juniperina would be available, speculating that seed would have to be collected in the area and grown in a nursery. 101 Jason Royal, in cross-examination, clarified also that his figures for arboricultural monitoring on an annual basis were based on a quotation from a Perth firm who would travel to the site for that purpose. He agreed that there was a significant transport component in the quote as well as professional time. 102 In re-examination Jason Royal was asked about the replacement of taxandria juniperina with agonis flexuosa. He said that his inquiries of a number of nurseries and nursery catalogues in Perth suggested that taxandria juniperina was not available but that agonis flexuosa was. He explained that grown trees come in bag sizes, being 5 litres, 45 litres, 100 litres and 200 litre bags. An agonis flexuosa in a 100 litre bag would be a tree about 2 to 2½ metres tall with a trunk calliper of 50 to 75 millimetres. His calculation of the replacement cost involved in planting 50 to 75 agonis flexuosa trees was based on planting 100 litre sized stock or trees that were 2 to 2 ½ metres tall. He emphasised that the reason for selecting agonis flexuosa as an alternative was that, according to his enquiries, there was no taxandria juniperina available. I assume that he was seeking taxandria juniperina already grown to about the same height in 100 litre bags. 103 Although I regard Jason Royal as having the better expert credentials of the two who were called to give evidence I regard some aspects of his report and evidence to be less practical than that of Albert Adams. The latter, who proposed the gathering of seed either from the community nursery in Denmark or from the local area and the growth of young trees from that seed in nursery conditions before planting at site, appeared to be (Page 28)
drawing on his local knowledge of the area whereas Jason Royal, based in Perth, appeared to be drawing on, not only his expertise but also the availability of plant stock in Perth to be transported to the site already well established in 100 litre pots having a height of 2 to 2½ metres. He selected agonis flexuosa as an alternative because taxandria juniperina was not in demand in Perth and therefore not available in nursery catalogues whereas, it seems, there was a ready availability of agonis flexuosa. His proposal was driven, firstly, by the availability of nursery stock in the metropolitan area and, secondly, by the apparent necessity to attempt, as quickly as possible, to recreate what had been lost. 104 In my view the only practical approach to an award of damages is to compensate the plaintiffs, firstly, by revegetation based on an economical and practical approach and, given that revegetation will be gradual and ultimately will not replicate that which was taken, to compensate them for loss of amenity. 105 The plaintiff's claim against the defendants for damages is particularised as seeking compensation not only for the cost of revegetation but also for loss of amenity, exemplary and aggravated damages. 106 The particulars relating to loss of amenity seek damages for the period from the time of destruction of the vegetation until regeneration to a state of growth "reasonably commensurate with that that existed prior to their destruction". "Amenity" in reference to a place, pertains to the place being pleasant or agreeable. To the plaintiff's, lot 101 was pleasant or agreeable because of its established vegetation. Having heard the evidence, my sense of the plaintiff's loss in that regard is not so much in terms of individual trees but rather in terms of the loss of the natural bush setting, so valued by the plaintiffs, and very substantially destroyed by the defendants. It is, in my view, not appropriate to approach an award of damages for loss of amenity on a tree-by-tree basis. I accept that the well-established red flowering gum and two paperbarks would have been individually valued by the plaintiffs in terms of their appreciation of the characteristics of those trees but the essence of the plaintiffs' loss is not, in my view, the loss of individual trees but rather the wholesale loss of a bushland setting including, as it did, those individual trees. 107 In the Arbor Logic report (exhibit 28.1) reference is made, under the heading of "Amenity Tree Evaluation" to the Thyer Method of Amenity Tree Evaluation. When asked, in evidence-in-chief, how that method might be applied, Jason Royal said that the method was based on a tree's (Page 29)
physical attributes, for example, its size, shape, age and condition. He would use the method to calculate the value of an individual tree in terms of its amenity. When asked to explain he said: "It's based on a number of physical attributes of the tree, and then you times all those together, score point on them, and then you times all those together and you times that by a base value, and then with the Thyer Method the base value is set at what it costs to supply, plant – or supply, deliver and plant and prepare the bed for a 5 litre sized plant, be it a shrub or a tree species or whatever. And that's set by the New South Wales Landscape Contractors Association." 108 He explained that the method was used by local governments in New South Wales in the event of unlawful clearing or damage to a council tree to arrive at an amount to be charged to the wrong-doer. Exhibit 28.2 is an update of the Arbor Logic report and, in particular, the assessment of amenity value of vegetation removed based on the Thyer Evaluation Method. Attached to that exhibit are Thyer tree evaluation worksheets for melaleuca pressiana, corymbia ficifolia and taxandria juniperina. Each melaleuca pressiana is valued at $10,669, the corymbia ficifolia is valued at $10,946, and the taxandria juniperina are valued at $5,622. It is apparent that the method is designed to achieve a uniform approach to the valuation of a tree in a community setting. Among the factors to be taken into account are such considerations as the environmental benefit of an individual tree, the re-establishment potential of the same species at that site, the rate of growth upon re-establishment over the first 10 years and the social benefit and significance of the tree concerned. 109 It is readily apparent that the Thyer method incorporates a component of revegetation as well as social and community considerations not apposite to the assessment of the substantial loss of a bushland setting on private property in terms of the loss of amenity suffered by the individual landowners concerned. The latter is entirely subjective. Some landowners might have been unperturbed by the destruction. Others might have considered the destruction of some utility. Yet others, like the plaintiffs, might have been distraught at what happened. 110 While the cost of revegetation can be quantified with some specificity such that it might be a component of an award of damages, the amount to be awarded in respect of loss of amenity is not amenable to such precise calculation. It is to be contrasted with an award of damages (Page 30)
for "loss of amenities" in claims for personal injuries, such awards being to compensate the plaintiff for his or her loss of enjoyment of life by reason of consequences of the injuries and disabilities suffered. Such an assessment must necessarily take an holistic approach and, being particularly subjective, will vary according to individual circumstances. The loss of amenity suffered by the plaintiffs in the matter before me is not of such broad compass but rather embraces one relatively small aspect of the, no doubt, many things that bring the plaintiffs pleasure or enjoyment. The forgoing is not in any way belittling the plaintiffs loss of amenity but rather placing it in its context.
Exemplary and aggravated damages 111 The plaintiffs claim both exemplary and aggravated damages. The former are not compensatory in that the focus is on the behaviour of the defendants and the degree to which a sum of money should be awarded to express "the public's indignation and need for deterrence or retribution" (see JD Fleming, "The Law of Torts" 9th edition, p 272). The latter does relate, by contrast, to the plaintiffs because it is an award of money which derives from the impact of the defendant's conduct upon the plaintiffs' feelings (see JD Fleming, "The Law of Torts", op.cit. p 274). 112 In Gray v Motor Accident Commission [1998] 196 CLR 1 Gleeson J, McHugh, Gumow and Hayne JJ said (at p 6) that the power to award exemplary damages has been long recognised but that such damages are awarded only rarely. They said: "Because the kinds of case in which exemplary damages might be awarded are so varied, it may be doubted whether a single formula adequately describes the boundaries of the field in which they may properly be awarded. Nevertheless, the phrase adopted by Knox CJ in Whitfeld v De Lauret & Co Ltd of 'conscious wrongdoing in contumelious disregard of another's rights' describes at least the greater part of the relevant field. In considering whether to award exemplary damages, the first, if not the principle, focus of the inquiry is upon the wrongdoer, not upon the party who was wronged. (The reaction of the party who was wrong to high-handed or deliberate conduct may well be a reason for awarding aggravated damages in further compensation for the wrong done. But it is not ordinarily relevant to whether exemplary damages should be allowed). The party wronged is entitled to whatever compensatory (Page 31)
damages the law allows (including, if appropriate, aggravated damages). By hypothesis then, the party wronged will receive just compensation for the wrong that is suffered. If exemplary damages are awarded, they will be paid in addition to compensatory damages and, in that sense, will be a windfall in the hands of the party who was wronged. Nevertheless, they are awarded at the suit of that party and, although awarded to punish the wrongdoer and deter others from like conduct, they are not exacted by the State or paid to it." 113 In that same case, Kirby J said (a p 34): "The difficulty of distinguishing between aggravated damages and exemplary damages has been acknowledged by this Court. To some extent compensatory, aggravated and exemplary damages overlap. Thus, compensatory damages themselves may, to some degree, fulfil the purposes for which exemplary damages exist. These are ambiguous concepts and, at least in part, anomalous. However, it is clear that, by Australian law, compensatory damages may be enlarged to include a component for the aggravated circumstances in which a wrong to the plaintiff has occurred. … Aggravated damages are given for conduct which shocks the plaintiff and hurts his or her feelings. Exemplary damages are awarded for conduct which shocks the tribunal of fact, representing the community. Obviously the two affronts will often coincide and overlap. But in awarding an additional element in the plaintiff's compensatory damages as aggravated damages for such affront, the attention of the decision maker must be concentrated upon the impact which the wrong had on the plaintiff and the particular injury done to his or her feelings." 114 So far as the impact upon the plaintiffs is concerned, I do accept that they were shocked and distraught by what they found when the destruction wrought by the defendants was first seen. I accept also that they were annoyed and further frustrated by the virtually unilateral further trespass upon their land for the purpose of removal of the pile of vegetation left on it after the defendants' first invasion. The second invasion was undertaken with undue haste and certainly no adequate notice to the plaintiffs, in contravention of the plaintiffs' clear embargo (Page 32)
upon further entry, out of a need on the part of defendants to ready their property for sale and to deal with any residual problems arising from their first invasion of the plaintiffs' property which might hinder or impede the intended sale of their own property. In that sense, exemplary damages do not overlap with either damages awarded to reflect the cost of revegetation or damages for loss of amenity. Each can be the subject of a discrete award. In the circumstances, the plaintiffs are entitled to an award of aggravated damages. 115 Exemplary damages are sometimes awarded in cases of defamation, trespass to the person and trespass to property. They are awarded to punish, reflecting the tribunal of facts abhorrence of the conduct of the defendants. In that sense, exemplary damages are in the nature of a fine to be paid to the person who has suffered at the hands of wrong-doing. I am conscious of the fact that it is a discretionary remedy and only rarely awarded. Such damages could not be awarded in a case of alleged negligence in which there was no conscious wrong-doing by the defendant. In accordance with my findings, this is not such a case. Clearly, the conduct of the wrong-doer is central to the inquiry as to whether exemplary damages should be awarded. In the present case, I consider the conduct of the defendants to be both deliberate and calculated and in complete disregard of the rights of the plaintiffs, their neighbours. It is, in my view, conduct that warrants an award of exemplary damages.
The issue of an apology 116 By par 10(b) of the plaintiffs' further amended particulars of claim they assert, inter alia, that at no time prior to the commencement of proceedings was an apology offered by the defendants to the plaintiffs. That matter is raised as a particular of the plaintiff's claim for aggravated damages. By the defendants' further amended defence par 10(b) is denied with the assertion that the particulars, if proved, would not, at law, found a claim for aggravated damages. 117 Susan Blythe said, in her evidence-in-chief, that the plaintiffs had received no apology. In cross-examination she was unable to recall any apology. Kim Blythe was asked in evidence-in-chief whether he had received an apology from the defendants. He replied: "No. Not that I can recall". He confirmed that in cross-examination. 118 According to Michael Hamblin there was an exchange between he and Kim Blythe in the context of a pre-trial conference, the terms of which are uncertain. Rule 41 of the District Court Rules 2005 provides (Page 33)
that evidence of anything said or any admission made in the course of a pre-trial conference is not admissible at the trial of the case. There is, in consequence, no evidence of an apology in this matter. 119 The significance of an apology is, in the context of this case, in any event, somewhat obscure. Section 5AH of the Civil Liability Act 2002 provides that an apology made by or on behalf of a person in connection with an incident giving rise to a claim for damages does not constitute an express or implied admission of fault or liability by the person in connection with that incident and is not relevant to the determination of fault or liability in connection with that incident. The section provides further that evidence of an apology is not admissible in any civil proceeding as evidence of fault or liability. 120 As mentioned, in this matter, the defendants admit their negligence. They put the plaintiffs to proof of their loss. To that extent, the question of whether there was an apology becomes somewhat irrelevant. Clearly, in cases of defamation, an apology may be an important factor where there has been publication of a defamatory statement. Subsequent publication of an apology with the same or similar degree of prominence of the original publication may have the effect of restoring some of the damage done to the plaintiff's reputation. In Ali v Nationwide News Pty Ltd [2008] NSWCA 183 Tobias and McColl JJA in the New South Wales Court of Appeal held that the defendant's failure to apologise was a basis for an award of aggravated damages. In the area of defamation the position is understandable. The defendant, very often, has the means of publicly apologising for and withdrawing the defamatory material such that damage to the plaintiff's reputation is limited if not negated. Failure to do so by a recalcitrant defendant might, understandably, sound in aggravated damages. The matter before me is not played out in the public arena. I am dealing with the impact of the defendants' actions upon the plaintiffs. There is no evidence of an apology. Had there been, the fact of an apology after commencement of proceedings would have been, in my view, of no consequence so far as my assessment of the plaintiffs' damages is concerned. Equally, the absence of an apology is, in my view, of no consequence in damages. |