Castrisios v Loh

[1989] TASSC 94

Serial No. B16/1989
List “B”

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Castrisios v Loh [1989] TASSC 94; B16/1989

PARTIES:  CASTRISIOS
  v
  LOH

FILE NO:  733/1986
DELIVERED ON:  12 May 1989
JUDGMENT OF:  Crawford J

Judgment Number:  B16/1989
Number of paragraphs:  29

Serial No B16/1989
File No 733/1986

CASTRISIOS v LOH

REASONS FOR JUDGMENT  CRAWFORD J

12 May 1989

1. The respondent, Mrs Loh, sued the appellants for damages for loss of support for her land. The amended statement of claim alleged that she was the owner and entitled to possession of a house and land at 348 Liverpool Street Hobart, and that the first appellant, Mr Castrisios, was the occupier of land adjoining at the rear, such land being known as 46 – 48 Molle Street. The second appellant was alleged to be the owner of the Molle Street land. By paragraph 4 of the amended statement of claim it was alleged that in or about April 1986 the first appellant either on his own account or as the servant or agent of the second appellant, wrongfully excavated and worked the land adjoining the respondent's rear boundary without proper or sufficient vertical or lateral support being maintained for the respondent's land. Paragraph 5 alleged that as a result the respondent's land sank and gave way, the rear boundary fence was left without support and the respondent's land deteriorated and was greatly diminished in value. By consent interlocutory judgment for damages to be assessed was obtained by the respondent. The Master subsequently assessed damages in the sum of $17,723.20 and the appellants have appealed. The grounds of appeal are expressed as follows:

"1The Master erred in finding that the respondent was entitled to have a Hume Crib Wall erected.

2Alternatively the Master erred in finding that the Respondent would be at considerable risk if a Cantilever Wall was erected.

3The Master erred in the absence of any evidence in finding or assuming that the appellants or their successors in title might lawfully use the land in a manner that would create a reasonable risk that the respondent would incur further loss by way of subsidence of her land or deterioration of any retaining wall.

4The Master erred in finding that the respondent is to be safeguarded against the reasonable risks that may result from the reasonable and lawful use to which the appellants and their successors may use the land.

5The award of $17,723.20 for damages was manifestly excessive and out of all proportion to the loss suffered by the respondent."

1. The Master's award was made up of the following components:

Cost of construction of a

ten metre crib block wall  $16,650.00

Cost of a drain  600.00

Cost of erecting a fence  473.20

$17,723.20

1. The respondent's property fronts onto Liverpool Street and slopes rather steeply from the front downhill to the rear. A house is situated at the front. Prior to the excavation work there was a paling fence standing along the rear boundary, on the other side of which there was quite a steep drop away from the boundary. The land on the other side of the boundary was that of the appellants. The respondent's case was that excavation work was carried out on that neighbouring land immediately adjacent to that fence. Evidence from the respondent's husband was as follows:

"... the rear of the property has actually fallen away, the ground has fallen right back in and the fencing has gone with it, approximately two thirds across the width of the rear of the block has dropped away and the remaining third of the block has a very steep slope from the fence to where the point of excavation commenced in that area and ... I am concerned that that will also move. The damage to the rear of the property in that two thirds area was very severe over the time ... the ground has actually fallen away back into our property and taken the fence with it, as I have mentioned."

1. Photographs taken in 1986 and 1987 show how the paling fence had fallen into the excavation. Mr Loh said that the width of the rear boundary was roughly 18 metres and the excavation had been carried out right to the boundary for about two thirds of that width, or roughly ten metres of it, the excavation leaving an almost perpendicular drop from the boundary whereas before the excavation there was a bank with roughly a 45 degree slope. I will refer to the excavation which went right to the boundary as being excavation AB. Mr Loh said that the remaining excavation was about two metres away from the fence for the remaining one third, or perhaps roughly eight metres, of the boundary. I will refer to that as being excavation BC. The respondent's husband was concerned that the excavation BC was a threat to the stability of that part of the boundary also. About 13 metres of the rear boundary fence had fallen by the date of his evidence.

1. Evidence was called by the respondent from a consulting civil engineer, Mr England. In December 1986 he inspected the respondent's property. He found that the appellants' excavation was on land at a lower level than the respondent's property, and he measured the width of the excavation AB at approximately 13 metres, the top of that excavation appearing to be the boundary line between the two properties and a large section of the fence had fallen into the excavation. He said that for the remainder of the width of the respondent's property an excavation BC with a face height of about three metres had also been carried out but it was about one and a half to two metres away from the actual fence line. Mr England also observed numerous cracks in the ground of the respondent's property near the fence line evidencing that the land was moving. A report prepared by him, dated 12 December 1986, was admitted into evidence. In it he stated that the excavation AB along the common boundary was for a length of 13 metres and the excavation BC for the remainder of the common boundary was of a length of some 7.5 metres, the face of the second section not being close to the boundary. The report therefore suggested a total boundary of some 20.5 metres. However, a specification for remedial work subsequently prepared by him stated that the boundary width was about 18.2 metres. There arises therefore a doubt concerning the accuracy of Mr England's measurements.

1. A consulting engineer, Mr Gee, gave evidence for the appellants that he considered that a ten metre length of wall was all that was needed for support and that the rest of the bank would be able to sustain itself without further support. Another consulting engineer called by the appellants, Mr Wilson, gave evidence that about eight metres of the bank were stable. He was referring to the length of the boundary other than the ten metres referred to by Mr Gee.

1. The Master held that the respondent was entitled to be compensated for the cost of erecting a wall of ten metres in length. I agree. There was undisputed evidence of actual subsidence but only where the excavation had gone to the boundary and on the evidence it was difficult to find that the length involved exceeded ten metres. I did not understand the respondent's counsel to submit to me that a greater length should have been found.

1. I also agree with the Master that on the authority of West Leigh Colliery Co Ltd v Tunnicliffeand Hampson Ltd [1908] AC 27 damages should only be awarded for actual subsidence caused and existing at the time of the action. The possibility of future subsidence cannot be taken into account. The evidence of Mr England that a crib block wall was needed for the full length of the boundary must be considered in this light.

1. Counsel for the appellants submitted that the proper measure of damages is the diminution in value of the property and damages for loss of amenities. He submitted correctly that there was no direct evidence of the value of the land or of the diminution in value.

1. Before dealing further with the law concerning the measure of damages, something should be said about the way in which the parties presented their cases to the Master. The evidence for the respondent was that there was actual subsidence and a likelihood of further movement of the property. Her case was that she should be compensated with the estimated cost of a substantial crib block wall for the entire width of the boundary. Her counsel argued that the evidence established subsidence along the entire rear of the land. In opening the case for the appellants, their counsel said that there were only two points at issue, the first being the precise length of wall being necessary to ensure a reasonable retaining of the embankment between the two properties, and the second being the cost of the wall which would depend on the type of wall construction. The evidence led for the appellants was to the effect that a wall for ten metres only was needed and that a cantilever wall would be sufficient rather than a crib block wall. In his closing address to the Master, the appellants' counsel said that the factual issues were fairly straight forward, they being not whether or not a wall ought to be built but what kind of wall was necessary and "the overall length of the wall that is necessary to compensate this plaintiff for the damage done to the land and bound up with that of course, is the cost of doing the work". Subsequently he addressed on the question of whether the compensation should be the diminution in value of the land. He submitted that the loss that the respondent had suffered was the amount in money terms of making good the area AB, that is the cost of making good the area which "is presently unstable and dangerous". He accepted that the cost of making good was equivalent to the diminution in value.

1. No direct evidence of the value of the land or of its diminution was called by either party. All evidence was directed to what work needed to be done and to its cost. Minter v Eacott (1952) 69 WN (NSW) 93 and Public Trustee v Hermann (1968) 88 WN (Pt 1) (NSW) 442 are authorities for the following propositions of law. The plaintiff has an election to claim as compensation the difference between the value of the land before the harm and the value after the harm, or he may claim the cost of restoration which has been or may be reasonably incurred.

1. The reasonable cost of replacing the land in its original position is ordinarily allowable as the measure of recovery. If, however, the cost of replacing the land is disproportionate to the diminution in the value of the land, damages are measured only by the difference in value, unless there is sufficient reason personal to the owner for restoring the original condition.

1. As all the evidence called, both by the appellants and the respondent, concentrated on the nature and cost of the work which needed to be done, it became necessary for the damages to be assessed accordingly, without regard to the valuation question. In his submissions to me the appellants' counsel argued that the actual damage to the respondent's property was not great and that the award of $17,723.20 was out of all proportion to the small amount of land affected. The answer to that submission is that in the absence of valuation evidence, damages can only be assessed on the basis of the cost of restoring the land.

1. It is clear from the evidence that either a crib block wall or a cantilever wall is required to rectify the damage caused to the respondent's land. The land which has fallen away or moved cannot be replaced or restored without one or other of such forms of retaining wall being constructed. The length of it needs to be ten metres. I am in general agreement with the Master when I say that the respondent is not entitled to the erection of an unnecessarily costly wall but is entitled to have the restored land at least as stable as it was before the excavation occurred. She is also entitled to be safeguarded against the reasonably likely risk of movement of the restored land that may result from the use to which the appellants and their successors may put their land in the future, if that risk was not one she had to face prior to the excavation work and the subsidence of her land. I repeat that she is entitled to have the restored land at least as stable as before.

1. Mr England, was of opinion that the most satisfactory and cheapest wall would be a crib block wall, which is one made of pre–cast concrete units placed together with the interstices filled with crushed rock. Based on a ten metre length the effect of his evidence, as accepted by the Master, was that the reasonable cost of such a wall would be $16,650.00. Such cost included miscellaneous charges including those of Mr England for his services. I agree with that assessment and I do not understand that it was attacked by the appellants on the hearing of the appeal.

1. The appellant's case was that a cantilever wall would be sufficient for the purpose and would also be much cheaper. They called evidence from Mr Gee. He was confident that Mr England's design of a crib block wall would be adequate. But Mr Castrisios, the first appellant, made it plain to him that he did not want a crib block wall. I gather that such a wall would protrude onto the appellants' land at its base. The protrusion at the top would not be as much because the design provided for the wall to lean back towards the respondent's property. Mr Gee therefore designed a poured concrete wall with its back against the site boundary, so as to encroach as little as possible onto the appellants' land. He proposed that further excavation would be carried out to provide a vertical face on the boundary. The first metre of the new wall would be poured directly against that freshly cut face before a three metre, reinforced concrete retaining wall would be constructed on top. His proposal allowed for a 400 mm. thick footing coming out from the front of the wall for a distance of about two metres further on to the appellants' land, or if measured from the back of the wall for a distance of 2.4 metres from the line of the boundary of the two properties.

1. Mr England considered the cantilever retaining wall unsuitable. In many instances such a wall would be suitable. However Mr England said:

"... but what gives me cause for fear in this case is that this wall, being on Mr Castrisios's property, could at a later date have the toe or the outstanding toe loaded by traffic, by materials stored on it, and the ground underneath on which the wall is to be founded is a very poor bouldery type clay with limited capacity to support loads. With the ever growing size and weight of trucks which are being used the loading imposed by wheels of trucks, particularly towards the outer edge of the toe, could cause the whole wall to rotate and thereby fail and leave Mr Loh's land unsupported".

1. He also foresaw other problems. The design required further excavation into the foot of the bank. This could be dangerous. Also, the top three metres of the wall would be 200 mm. off the site boundary. The wall would have a formed face, that is to say form work which would be placed in the space between the bank and the back of the wall so that the wall could be poured. He did not consider that anybody could reasonably get into the 200 mm. space and take the form work out again. If it was timber form work it would eventually rot and the soil would fall into the space left by the rotted timber and a subsidence of the ground just behind the wall would occur. The alternative was to use steel form work but it would be too expensive to leave behind the wall. Mr England also said that in December 1986 he estimated the cost of a 13 metre cantilever wall to be at least $30,000.00, which I presume would convert back to a figure of at least $23,000.00, for such a wall ten metres in length. However no calculations were produced.

1. It was put to Mr England in cross–examination that the problem with loads being placed on the footing of the cantilever wall could be overcome by excavating and placing crushed rock before pouring the footing. However he said the cost would not be viable in his opinion. The soil was very soft, he indicated. He agreed that Mr Gee's wall would be perfectly adequate if it was not subjected to a load on the toe and providing it could be built safely. He entirely disagreed that Mr Gee's wall could be built for less than $6,000.00. He did not think that sum would even pay for the concrete. He also criticised Mr Gee's design in that it did not provide for a heel to be built on to it, which would dig into the ground to provide resistance against the wall sliding forward, as a result of pressure from water which might get down behind the wall.

1. Mr Gee did in fact describe the cantilever wall as "the next best solution" to a crib block wall. He gave no evidence of his estimate of the cost of his designed wall. He was asked about the problem which might occur if loads were placed on the footing. He obviously had not considered it in preparing his design. He said:

"If at this stage it was thought desirable to allow for any future use of this sort, I see no reason why once the footing has been excavated that the material underneath can be examined with that in mind. And if sections of it were considered to be not of sufficient load bearing capacity, then they could be removed and suitable road pavement material placed there underneath the toe of the wall so that it would carry the loads in the future. But if traffic was to use that area in the future, there would need to be considerable pavement construction in the area, in any case."

1. Mr Gee's levels were approximate and if the work proceeded he would have expected that a surveyor would have to be engaged to establish them accurately. Mr England on the other hand, had already obtained a surveyor's report for the purpose of his crib block wall design and he had come to the conclusion that the wall needed to be 4.75 metres in height. Mr Gee accepted that the height of his design might eventually have to be increased or decreased "slightly". He also agreed that if a lip was provided in the base of the wall it would help stability. He said, "It may be necessary to put another lip in the base here which is what we call a sheer key which is to counteract any horizontal movement."

1. Mr Pedder, a concrete contractor, gave evidence for the appellants that he had provided a quotation of $5,800.00 for undertaking the work shown in Mr Gee's drawing. His price did not include the placing of a crushed rock foundation under the toe or footing of the wall. He had carried out no tests and did not know if the ground under the proposed footing was soft or solid. If the wall had to be higher than four metres then the price would be greater. For form work for the work he would use Acro sheeting and to get it out after pouring the wall it would be necessary to further excavate the bank by "eighteen inches, probably a foot". He had made no provision for the cost of a Council bond to enable him to cross Council land to get to the land. That would be an extra if it had to be paid.

1. I prefer the evidence of Mr England to that of Mr Gee and Mr Pedder in so far as the evidence relates to the question of whether a crib block wall or a cantilever wall should be preferred. I am satisfied that Mr England has done a thoroughly professional job in designing a wall which will be adequate and in costing such a wall. On the other hand the evidence of Mr Gee leaves me with the impression that he has not done such a thorough job, and a number of uncertainties remain so far as his proposal is concerned. In fact I am of opinion that it is likely that if the cantilever wall proposal proceeded, Mr Gee and Mr Pedder would find that further work would be required.

1. The only evidence of the use the appellants may have in mind for their land, came from the cross–examination of the first appellant. There are already warehouses on the land but apparently not close to the excavated land. The relevant cross–examination of Mr Castrisios proceeded as follows:

"QMr Castrisios, for what use are you going to use the property behind the Loh's property?

ABuild some more warehouses.

QAnd are those warehouses to be adjacent to the wall at the Castrisios property?

AYes, if allowed by the Council, of course."

The possible use of the land for the storage of goods with likely movements of vehicles to and from, and within, the proposed warehouse areas, persuades me that the respondents should not have to accept a cantilever wall which will be at risk of rotating if loads are placed on its footing.

1. I agree entirely with the conclusions reached by the Master in paragraph 2 of his findings in his reasons for judgment, particularly his conclusion that the respondent is entitled to the reasonable cost of a crib block wall. I quote from that part of his finding:

"2As to the type of wall to be erected, I prefer the evidence of Mr England on this issue to that of the defendants engineers. I am satisfied that, whilst the plaintiff is not entitled to the erection of an unnecessarily costly wall, she is to be safeguarded against the reasonable risks that may result from the reasonable and lawful use to which the defendants and their successors may use the land. Mr England's detailed examination of the site and the considerations advanced by him lead me to the conclusion that the plaintiff will be at a significant risk if a cantilever wall is erected. Mr England has had the advantage of viewing the site since 1986 and I find that the plaintiff is entitled to have a Hume Crib Wall constructed for a length of 10 metres across the portion of the plaintiff's rear boundary as shown in Mr Gee's plan and that its construction should be in accordance with the specifications prepared by Mr England in March 1988 and subject to the costs detailed therein, together with the increased costs referred to above in these reasons."

1. As stated earlier, the reasonable cost of a ten metre crib block wall would be $16,650.00. The respondent is entitled to that sum.

1. The Master allowed $473.20 for the cost of erecting a fence to replace the one which fell down as a result of the excavation work. I am satisfied that that sum is properly payable. It is the cost as estimated by Mr Pedder, who was called as a witness by the appellants.

1. The Master also allowed $600.00 for the cost of a drain. With respect this assessment was erroneous. It was the agreed cost of a concrete drain to be placed on the appellants' land, just below the respondent's boundary, and just above the excavation BC. The Master preferred a concrete drain at a cost of $600.00 instead of an open earth drain proposed by the appellants at an agreed cost of $350.00. However nothing should have been allowed for the drain. At this point of time the face of the excavation BC is up to about two metres away from the respondent's boundary. There is no evidence of any actual damage or subsidence to the respondent's property in the area of BC. The purpose of the drain would be to stop further erosion of the bank, which might eventually be eroded back into the respondent's property. The law is clear that the respondents are not entitled to be compensated for future subsidence or damage, only for subsidence which has actually occurred. The drain will not restore any land which has subsided. The cost of it should not have been allowed.

1. Accordingly the appeal will be successful to the extent of $600.00. The judgment of the Master will be set aside and in its place there will be judgment for the respondent against the appellants for $17,123.20 damages.