Dynamic Flooring Pty Limited v Carter

[2001] NSWCA 396

CITATION:	Dynamic Flooring Pty Limited v Carter & Anor [2001] NSWCA 396
FILE NUMBER(S):	CA 40910/00
HEARING DATE(S):	28 August 2001
JUDGMENT DATE:	8 November 2001
PARTIES :	Dynamic Flooring Pty Limited v James Frederick Carter and Triene Amelia Carter
JUDGMENT OF:	Priestley JA at 1; Beazley JA at 47; Stein JA at 48

LOWER COURT JURISDICTION :	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S) :	ED 4063/98
LOWER COURT JUDICIAL OFFICER :	Hodgson CJ in Eq

COUNSEL:	Appellant - T.S. Hale SC / G.L. Turner Respondents - T.J. Morahan
SOLICITORS:	Appellant - Yandell Wright Stell Respondents - A.R. Conolly & Company
CATCHWORDS:	Private nuisance
CASES CITED:	Don Brass Foundry Pty Ltd v Stead (1948) 48 SR 482
DECISION:	Appeal dismissed with costs.

CA 40910/00
ED 4063/98
PRIESTLEY JA
BEAZLEY JA
STEIN JA


Thursday, 8 November 2001

DYNAMIC FLOORING PTY LIMITED v CARTER & ANOR

PRIVATE NUISANCE - owner of residential land alters land to reduce flow of storm and flood water on to it – neighbouring residential block then becomes subject to worse flow of storm water on to it than before – claims and cross-claims between the parties the outcome of which depended on whether private nuisance had been created – trial judge finds there had – on appeal appellant contends (1), judge’s factual findings not justified on the evidence; (2), in any event factual findings did not support the holding that a private nuisance had been created – both grounds fail – as to (1), evidence sufficient for judge’s findings – as to (2), there had been appropriate application of accepted authority concerning the tort of nuisance.

ORDERS
Appeal dismissed with costs.

20

CA 40910/00
ED 4063/98
PRIESTLEY JA
BEAZLEY JA
STEIN JA


Thursday, 8 November 2001

DYNAMIC FLOORING PTY LIMITED v CARTER & ANOR

1 PRIESTLEY JA: The owner of 20 Marandowie Drive, Iluka, did work on the land which the owner of the neighbouring property, 18 Marandowie Drive claimed had altered the slope of No 20 resulting in the escape of water onto No 18. Mr Carter, the owner (with his wife) of No 18 informed solicitors acting for a proposed purchaser of No 20 that he would look to the owner of No 20 to abate the nuisance caused by the alleged alterations to the slope of the land. The proposed purchaser did not proceed. The owner of No 20, Dynamic Flooring Pty Limited, a company controlled by Mr A. Lambert, began proceedings in the Equity Division against Mr and Mrs Carter seeking a declaration that there was no water nuisance and an injunction restraining Mr Carter from asserting there was. Mr and Mrs Carter cross-claimed against both Dynamic Flooring and Mr Lambert, claiming an injunction against continuation of the alleged nuisance and damages.

2 The proceedings were heard by Hodgson CJ in Eq who held that Dynamic Flooring created a nuisance so that its claims failed, and Mr and Mrs Carter succeeded, to a limited extent on their cross-claim. Hodgson CJ in Eq ordered that Dynamic Flooring pay damages to Mr and Mrs Carter in the sum of $5,500 and pay one half of Mr and Mrs Carter’s costs of the proceedings; that Dynamic Flooring’s proceedings be dismissed, and that, except to the extent of the orders in their favour, Mr and Mrs Carter’s cross-claims be dismissed.

3 Dynamic Flooring appealed.

4 In explaining my approach to the appeal it will be necessary to give some detail of the course of events at the hearing before Hodgson CJ in Eq but before doing that I will refer to the facts of the case, by reproducing a summary of them which Hodgson CJ in Eq included in his reasons for judgment, as follows:

“7. Marandowie Drive runs approximately north/south with the Clarence River to its west. In the vicinity of numbers 18 to 26 Marandowie Drive, this road is approximately level. The edge of the bitumen is at Australian height datum (AHD) level 1.37 metres outside numbers 18 and 20, 1.39 metres outside number 22, 1.37 metres outside number 24 and 1.39 metres outside number 26. The crown of the bitumen rises from 1.3 metres in front of number 18 to 1.7 metres in front of numbers 24 and 26. There are no houses on the western side of the road in this vicinity. Numbers 18 to 26 are all on the eastern side. Number 18 is on the corner of Loxton Avenue, which runs away from the river, rising gradually, reaching about two metres AHD at the rear boundary of number 18.

8. All of the houses referred to are single storey dwellings. It seems that numbers 18, 20, 22 and 26 were built in about the 1970’s and number 24 perhaps a little alter. The floor levels of numbers 18 and 20 are respectively 1.93 metres and 1.90 metres. Those of numbers 22 and 24 are somewhat higher at about 2.35 metres and that of number 26 is 1.9 metres.

9. The general topography of the land is flat, ranging from a maximum of a little over 1.80 metres on parts of numbers 24, 22 and 18, down to about 1.09 metres towards the front of number 18. as the land is at present, number 18 is most prone to affectation by flooding. Over half its area is below 1.30 metres and about one-third of that is below 1.20 metres. The only other land associated with these houses which is below 1.30 metres are two small parts of number 20, adjoining its boundary with number 18.

10. Mr and Mrs Carter purchased number 18 in March or April of 1988. There were floods in the area in 1988 and 1990. According to Mr and Mrs carter, their property was not badly affected, and was much less affected than number 20.

11. Mr Lambert, or a company associated with him, purchased number 22 in March 1990, number 26 in March 1991, number 24 in February 1992 and number 20 in January 1993. At various times, not clearly identified in the evidence, Mr Lambert has had soil spread on these properties.

12. The particular events which are alleged in this case to amount to the creation of a nuisance occurred in about the middle of 1993, a time most clearly identified by evidence from Mr and Mrs Finch, who were then staying in No 1 Loxton Avenue, a property adjoining the rear of numbers 18 and 20, and who took photographs of some of the events.

13. According to Mr Lambert, at this time about nine truck loads of soil totalling about 45 cubic metres were placed on these properties. He claims that of these, only about three loads were placed on number 20 and about two or three on number 22. Mr Lambert described what was done as top dressing. He says that the soil was spread to fill depressions on the land, some created by removal of trees, and to provide an even surface and turf was laid on an area of about 520 square metres at the back of number 20 and about 100 square metres at the front of number 20. Mr Lambert said this did not change the slope of the land or the flow of water.

14. At the time of the work, Mr Carter complained, and arranged for an officer of the local Council to come out. It appears that an engineer from the Council, who subsequently came to the site, expressed the view that what Mr Lambert was doing was all right, and Mr Lambert completed the work.

15. Mr and Mrs Carter claim that the work has changed the flow of water. In effect, they say that before the work was done, even in heavy rain, no water was discharged from number 20 on to number 18. Water coming on to number 20 from the north and east of number 20 used to run along a shallow depression along the boundary between number 20 and number 22, to the vicinity of a garage near the boundary just behind the house on number 20, and then on into the front of number 20 and into the street. They claim that since the work, that water now runs across the back of number 20 and on to number 18.

16. In two floods since the work was done, in 1995 and 1997, the water came to a depth of up to about 600 millimetres around the house and took some days to disperse. Mr and Mrs Carter also claim that following the 1995 flood, there was damage to their house through subsidence of a section at the rear of the house.”

5 The proceedings were heard on 5, 6 and 7 June 2000. Evidence was given by Mr and Mrs Carter, Mr Lambert, a number of persons who had lived near Nos 18 and 20 at relevant times and some experts. Much of the lay evidence concerned what it was that Mr Lambert had caused to be done on No 20. His case was that the filling that had been put on No 20 was not of such a quantity as to have affected the flow of water in the way claimed by Mr and Mrs Carter. The evidence of the various witnesses about these matters differed. Some of this evidence, if correct, showed that considerably more had been done on No 20 than Mr Lambert had claimed, for example, one witness said that the fill placed across the back of No 20 went up to about fifteen inches deep, while Mr Lambert said that the filling at its deepest point was only seventy-five millimetres. One expert gave evidence substantially supporting Mr and Mrs Carter’s case, but in his evidence this expert was relying partly on information in a Department of Public Works diagram which was basic to his opinion but which was shown to be significantly incorrect. An expert called in the plaintiff’s case, and Mr Lambert himself in their evidence pointed out the mistake and also said that most of the stormwater run-off affecting No 18 was from a stormwater pipeline running down Loxton Avenue.

6 At the end of the evidence on 7 June counsel made oral submissions. Hodgson CJ in Eq reserved his decision.

7 In the course of considering the matter Hodgson CJ in Eq came to some provisional conclusions, but also felt the need to draw to the parties’ attention to two matters so that the parties could decide whether anyone wished to take any further steps regarding them. Accordingly, on 9 June 2000 Hodgson CJ in Eq sent the following memorandum to counsel:

“My consideration of this case has given rise to two matters which may not have been fully dealt with at the hearing of the case.

The first is a matter that was the subject of submissions by Mr Carney, though not developed in the detail in which I develop it below, and as I understand it, not squarely dealt with by experts.

It is plain that the work done in 1993 did not increase the total water coming onto the properties 18 to 26 Marandowie Drive. What it may have done is to affect the distribution of that water and the rate at which it discharged (and therefore the rate at which and extent to which it could build up). Distribution may have been affected by adding what might possibly have been up to 100 cubic metres of topsoil on the properties other than No 18; and the discharge may have been affected by making the ground less pervious or permeable, because turf and topsoil covered sand.

At present, I am inclined to accept Mr Carter's evidence that in 1995 the water was around two feet deep around his house, and that in 1997 it was at least eighteen inches deep around the house. This would mean that the surface of that water in 1995 was at around 1.70 metres AHD, and in 1997 about 1.60 metres AHD. These levels are confirmed by the evidence that on these occasions the flooding spread across No 20, and across the back of No 22 and No 24, that is across land at a level of 1.50 to 1.60 metres AHD. The evidence also is that the water remained at this level for some time, so I would infer that the surface of it did become approximately level.

One way of assessing the possible impact to this flooding of about 100 cubic metres of soil having been added to No 20 to No 26 is to calculate what area of those blocks is now 1.50 metres AHD or below (2,500 square metres); assume that the whole of the 100 cubic metres was added to areas previously below 1.50 metres AHD, and brought the surface of those areas up to no higher than 1.50 metres; and consider the effect of this on the level of a body of water whose surface is at a level higher than 1.50 metres. The effect would be to raise the surface of the water by no more than 100 cubic metres divided by 2,500 square metres, that is by no more than 4 centimetres. In fact, the effect on a body of water whose surface was at a level higher than 1.50 metres AHD would be substantially less than this, because, if the surface was higher than 1.50 metres AHD, the water could be expected to flow onto and across Marandowie Drive, the highest point of which in this area is no more than 1.47 metres AHD.

Turning to the effect of possible increased imperviousness, I have no evidence about what this could mean; but I think it is extremely unlikely that, in conditions producing a body of water at that level, it could have made more than a few centimetres difference to the highest level of the water.

I infer from those considerations that, if the same amount of water had come onto No 18 to No 26 prior to the work being done, as came on to those properties in 1995, it would have resulted in a body of water whose surface was at a level of no less than about 1.65 metres AHD; and if the same amount of water had come on to these properties before the work as came on to them in 1997, the result would have been a body of water whose surface was at a level of no less than about 1.55 metres AHD.

Even a level of about 1.55 metres AHD would have been at least about 25 centimetres above the level of boundary between No 20 and No 18, at the front of those properties, the level of which in my opinion has not changed. In my opinion, the result would inevitably have been water to a depth of at least about 35 centimetres surrounding the house on No 18.

At present, I am inclined to accept Mr Carter's evidence that in 1988 and 1989, his property was affected by a pool of water up to six inches deep covering three-quarters of the front yard. That evidence would put the surface level of this water at about 1.25 metres AHD at the most.

From all these matters, I would at present draw the following inferences:

1. The quantity of water which came onto the properties 18-26 Marandowie Drive in 1988 and 1989 was very much less than the quantity which came on to those properties in 1995 and 1997.

2. Even without the work done in 1993, the result of the 1995 and 1997 rains would have been water to a depth of at least about 35 to 45 centimetres around the house No 18.

3. Accordingly, if the effect of the 1995 and 1997 rains would have been less had the 1993 work not been done, the difference would not have been very great.

4. Even if I were able to infer that the damage to the house was caused by the 1995 floods, I could not infer that it was caused by the difference to the effect of those floods due to the 1993 work.

In fact, the onus is generally on the defendants in these matters, and as matters stand, I certainly could not be satisfied that 1 to 3 are not true.

I would be prepared to receive further submissions on this matter from the defendants. If there were official figures of rainfall and flood levels that showed plainly that the 1988 and 1989 rains and/or floods were as bad as those of 1995 and 1997, I may be prepared to allow that material to be presented.

The second point was also dealt with by evidence and submissions, but again not in the way in which I now raise it. It concerns the question, how much was the floor of the garage raised?

It is clear that it was raised at least 200 millimetres. Mr Lambert gave evidence that it was raised 100 millimetres, but I do not accept that evidence. Mr Webster said it was raised to the extent of one besser block, by putting in 100 millimetres of fill, then 100 millimetres of concrete. However, on the evidence as it stands I would infer that it was in fact raised at least 400 millimetres, for the following reasons.

If it was raised only about 200 millimetres the previous level of the garage floor must have been around 1.30 metres (perhaps 1.35 metres at the front, and 1.25 metres at the back). However, I note that the bottom of the swale just inside the north-west corner of 1 Loxton Avenue is 1.29 metres, and it seems clear that the level of the front boundary of No 20 prior to the work being done could not have been higher than about 1.30 metres. There is evidence, which I am at present inclined to accept, that water used to flow down the swale to the vicinity of the garage; and there is also evidence from Mr Simpson, which I am minded to accept, that on occasions there was a pool on No 20 which was up to one foot deep in the vicinity of the garage extending almost to the road. If I accept that evidence, it must mean that the garage floor could have been no higher than about 1.10 metres AHD. (Mr Simpson could have mistaken eight inches for twelve inches, but could not I believe have mistaken one or two inches for twelve inches.)

For those reasons, on the evidence and submissions as they stand, I would find that the garage floor was raised at least 400 millimetres, not 200 millimetres. That finding could reflect very adversely on Mr Lambert's credit. The reasoning which leads me to that view was not really examined at the hearing, and the conclusion that I reach could I believe be refuted by a very simple investigation, that is, digging down outside the garage wall to identify the previous floor level and what has been built on top of it.

I would be prepared to receive further submissions from the plaintiff on this matter; and if the plaintiff wished to conduct that investigation, in the presence of and at a location selected by a representative of the defendants, I would be prepared, subject to submissions from the defendants, to receive the agreed results of that investigation.

Unless there is some response or submission to the contrary, I will proceed to finalise my judgment after 14 days from the date of this memorandum.”

8 Consequent upon this memorandum, further evidence was given before Hodgson CJ in Eq, and further submissions were made, on 23 October 2000, following which he delivered judgment on the same day.

9 In his reasons for judgment the trial judge summarised the history as I have reproduced it, then stated the issues, and then set out his memorandum of 9 June as reproduced above.

10 The issues as he had set them out were: 1, what were the levels on relevant properties, particularly No 20 and to a lesser extent No 22, prior to the work being done; 2, what work was actually done, in particular what was the depth of fill placed on the land at various points; 3, did this work cause any material change in water flow so as to damage Mr and Mrs Carter’s property; and, 4, did what Dynamic Flooring had done amount to a nuisance.

11 Then, depending on the determination of those issues, there were questions of appropriate remedies to be decided.

12 After he had set out his summary of the history, the issues in the case, and his memorandum of 9 June 2000, Hodgson CJ in Eq went on to describe the evidence that had come in since his memorandum, and the effect the evidence had had on his fact finding. The further evidence caused him to make a much less severe adverse finding about Mr Lambert’s credibility than he had indicated he was thinking of doing in the memorandum. He still had some reservations about that evidence which led him to the conclusion that he needed to scrutinise it with some care but nevertheless thought Mr Lambert’s account of the events was reasonably accurate. The further evidence had also led him not to accept the evidence of Mr Simpson and Mr O’Connell as he had previously been intending to do. The further evidence also, in his opinion, showed that some evidence given by Mr Carter about the levels before the changes made by Mr Lambert was wrong. His opinion was that Mr Carter had given evidence accurately to the best of his ability but that it suffered from a tendency to exaggeration. As to the other witnesses, he thought they were giving evidence to the best of their ability, the variations of their evidence being attributable to different points of view and, to some extent, different interests and different abilities to observe and recollect.

13 Hodgson CJ in Eq then turned to the first issue he had listed, namely relevant levels before the work was done. His principal finding on this issue was that the garage floor was only raised 200 mm. He noted that it seemed to be common ground that before the work the back part of the rear of No 20 was swampy, and that water collected and stayed there. He said it was difficult to come to a conclusion as to the levels involved, except working back from the existing levels and the amount of fill probably introduced in 1993.

14 The last consideration took him to his issue number 2. Here again he indicated that he was influenced by the further evidence before the court since 9 June 2000 to make a finding more favourable to Mr Lambert’s side than he had indicated in his memorandum. But for the additional evidence, he said, he probably would have found that Mr Lambert’s evidence was very far from accurate and that the quantities involved were much larger than those he admitted. In light of the further evidence however he was prepared to accept that what was put on the back of No 20 was about three truckloads, each of about eight cubic metres and that what was put on the front was one truckload of about eight cubic metres. From these findings he calculated that something like twenty-four cubic metres was spread over about 520 square metres at the back giving an average of around forty to fifty mm. He added that he thought there would be parts where the fill was as much as 100 mm or more, going down to nearly zero in other places.

15 Next, he dealt with his issue 3, whether what was done made a material change to the water flow. His conclusion was, in the light of the further material, that, taken at its highest, the difference made by the work would only be that the flooding in 1995 and 1997 would have been two or three inches lower, and perhaps would have cleared away somewhat faster.

16 To this point, it looked as if the further evidence together with the argument of 23 October 2000 were going to cause the trial judge to find all the issues in favour of Dynamic Flooring and Mr Lambert. However, having made his findings on issue 3, the trial judge continued by saying, in par 66 of his reasons,

“there is general evidence both from the Carters and from their witnesses that, in general terms, No 18 is wetter and more affected by water than it was before 1993. I think it is reasonable to infer that this would be so because water that used to lie in the back of No 20, making it a boggy area, and seep into the ground at that point no longer does so and it seems reasonable to infer that in one way or another, that water now passes on to No 18. I think the photographs showing water coming down the depression at the back of No 1 Loxton Street and being then blocked and diverted towards No 18 also confirm this view.”

17 The trial judge then passed to issue 4: did his finding that water that seeped into the ground in No 20 and made its way to No 18 mean that the work that was done in 1993 created a nuisance.

18 In answering this question, the trial judge first said that Dynamic Flooring and Mr Lambert were entitled to do something to try and rectify the state of the rear yard of No 20, but next went on to say that because of the topography and vulnerability of No 18 it was unreasonable to bring such a large amount of soil on to No 20 without any attempt to consult the neighbour and no real precautions being taken to prevent damage being caused. Having regard to this and his view about the affectation of No 18, the trial judge concluded that a nuisance had been created.

19 Dynamic Flooring’s notice of appeal contained two grounds. Prior to the hearing of the appeal written submissions were filed both for Dynamic Flooring and Mr and Mrs Carter. When the appeal came on for hearing, Dynamic Flooring’s counsel restated the grounds of appeal in the following way. He said there were two broad grounds:

1, whether the facts as found by the trial judge were supported by the evidence;
2, itself in two parts,
(i) whether the facts found by the trial judge established a prima facie action in nuisance, that is did they constitute a material injury to Mr and Mrs Carter’s property or alternatively the requisite level of inconvenience, such as to found a cause of action in nuisance, and
(ii) whether on the facts as found Dynamic Flooring’s actions could be said to constitute an unreasonable or unnatural use of land.

20 Ground 1. The first ground was entirely a challenge to the trial judge’s fact finding. In supporting it, counsel for Dynamic Flooring frequently referred to the change of direction that had happened in the case on 23 October 2000. He said the case

“... was originally put as one of material injury to [the Carters’] property, the foundations and suchlike arising from certain work undertaken on the property which caused injury during the floods of 1995 and 1997”,

but that it took a different course


“... largely based on the same evidence, in which the argument was put and accepted that there was a general level of wetness as it were, as distinct from material injury and that gave rise to the cause of action in nuisance ...”

21 The general submission was made that until almost the very end of the hearing all the evidence had been directed to the issues raised by Mr and Mrs Carter’s original case, that is that the 1993 work had caused damage to their property during the floods of 1995 and 1997 and that this evidence was never directed to the claim which found favour with the trial judge and was insufficient to support his conclusions. The question of wetness itself upon which the trial judge founded his decision was said to have been at all times in the trial wetness caused by the 1995 and 1997 floods.

22 The transcript of the evidence and argument on 23 October 2000 throws some light on how the case for Mr and Mrs Carter changed on that day to the one upon which the trial judge ruled, to some extent at least, in their favour.

23 The further hearing on 23 October 2000 began with the tender of a number of expert reports some of which were admitted and some of which were rejected. Then Mr Lambert gave some further oral evidence, limited to the state of the garage at the time when Dynamic Flooring bought the property. Counsel for Mr and Mrs Carter then applied to recall Mr Carter so that evidence could be led from him

“confined to the experiences of inundation and the redirection of water on to property No 18 in times other than the two major events in 1995 and 1997.”

For Dynamic Flooring objection was taken to this further evidence. The trial judge said he would take the evidence on the voir dire and then consider the position. Mr Carter was then examined in chief on the voir dire. The trial judge then asked counsel for Dynamic Flooring what he had to say about the evidence so far. Counsel replied that he would be objecting to it as new material. He then said, somewhat inconsistently, that it did not take the matter further and that the judge had already heard it before. Counsel for Mr and Mrs Carter said he would not have called it if that was so. The transcript then continues:


“CARNEY [Counsel for Dynamic Flooring]: I thought your Honour had heard some of this before. There is many other factors to be taken into account on this question. I did not think it went to the issue that your Honour was looking at, the question of damage.

HIS HONOUR: It might but up until now, I had thought that the only evidence of actual ponding around the house was evidence of what happened in the two major inundations and for the reasons I set out in my memorandum, I have come to the view that it would have been similar – the filling at most made a couple of inches difference so I could not find that it had an impact on the foundations but if there is evidence that ponding occurs at times other than these major inundations when it might have made a difference, then that might possibly make a difference as to what inferences I can draw.”

24 There was then some further discussion, an adjournment to enable counsel for Dynamic Flooring to get instructions, followed by maintenance of the objection to the reception in the trial of the evidence Mr Carter had given. Counsel for Mr and Mrs Carter submitted the evidence was relevant and admissible. Relevantly for present purposes, the transcript records:

“MORAHAN [Counsel for Mr and Mrs Carter]: On those points, this case was never run on the allegation that this only occurred on two major events.

HIS HONOUR: It has got to be run on the evidence.

MORAHAN: Certainly, your Honour. The plaintiffs have never been confined in their case to meeting only the situation where there was a problem during two major events. It was always from the very beginning a general inundation problem.

HIS HONOUR: That’s right. But the plaintiffs have to deal with the evidence that is led against them. As the exercise this morning has shown, the evidence gave particularity only in relation to the two major events. That was the evidence that the plaintiff had to deal with.”

25 Counsel for Mr and Mrs Carter in further submission mentioned some aspects of evidence already before the court supporting the contention that the cases run for Mr and Mrs Carter had never been confined to the two major flood events and indicated that even if the admission of Mr Carter’s latest evidence led to an adjournment the costs of which might have to be paid by Mr and Mrs Carter, he would still seek to have the evidence admitted.

26 Hodgson CJ in Eq then gave brief reasons for refusing to allow Mr Carter’s evidence to be introduced at that stage of the trial. In the course of his reasons he said:

“It is submitted that, insofar as this evidence is new, it is evidence in respect of which the plaintiff would need to get instructions and consider whether to call evidence from other residents.”

He then indicated that he accepted that submission and did not think he should permit the case to be further adjourned at the late stage it had reached. In reaching his conclusion he said:


“I think the evidence, insofar as it is new evidence, is evidence that the plaintiff would require instructions on and would require to consider the calling of further evidence.”

27 It was recognised by the last part of the submission made by counsel for Dynamic Flooring in this court from which I quoted in par 20 above that in the final oral submissions, counsel for Mr and Mrs Carter put the argument that there was a general level of wetness, as distinct from material injury, and that that wetness was sufficient to warrant a holding that nuisance had been established. Such a submission was explicitly recorded by Hodgson CJ in Eq as having been made, in par 52 of his reasons. I will mention par 52 again later in these reasons.

28 In an effort to persuade the court that the trial judge should not have made the factual findings which he stated in par 66 of his reasons (see par 16 above) counsel for Dynamic Flooring painstakingly took the court through the evidence in the case. He did this against the general background of a submission that before Hodgson CJ in Eq “the case was fought effectively with respect to the two flooding events”. In support of this assertion he relied on the interchange that had taken place between counsel for Mr and Mrs Carter and the trial judge, part of which is quoted in par 24 above. He especially relied on the judge’s statement that the evidence in the case had given particularity only in relation to the two major events and that was the evidence the plaintiff had to deal with.

29 However, counsel’s assertion did not give due weight to other things said by Hodgson CJ in Eq at about the same time. In particular, in his reasons for refusing to allow further evidence to be given by Mr Carter on that day, the trial judge appears to have been careful not to endorse any idea that the evidence he had heard on the voir dire was all new evidence; twice he referred to this evidence “insofar as it … is new”. Further, in the very passage relied upon by counsel for Dynamic Flooring, Hodgson CJ in Eq observed that the evidence “gave particularity only in relation to” the two flood years. As he made clear in his final reasons later that day, he was of the opinion that there was general evidence not confined to the two inundation years, over and above the particular evidence concerning those two years. As I have already remarked, there is no doubt that in the submissions preceding the judge’s delivery of his final reasons counsel for Mr and Mrs Carter relied upon this more general evidence in seeking to have the judge find in his client’s favour on the basis of this alternative and more general case.

30 The questions therefore become, in respect of counsel’s reformulated ground 1 as it was argued in this court, what was this general evidence and should the judge’s fact finding referable to it be changed by this court.

31 In trying to persuade the court to change the trial judge’s factual conclusions, counsel had a laborious task. It involved seeking to demonstrate, by reference to the whole of the evidence, not that there was no evidence supporting the trial judge’s findings, but that the evidence was so slight that the judge erred in his understanding of the facts in coming to the conclusions which he did.

32 In par 52 of the trial judge’s reasons he mentioned a submission made by counsel for Mr and Mrs Carter after the conclusion of all the evidence on 23 October 2000, asking that the judge not approach the matter on the basis that the only times that No 18 was affected were at the times of the floods of 1995 and 1997. The judge also mentioned the reference by counsel when making that submission to pars 191, 222 and 227 of Mr Carter’s main affidavit.

33 Counsel for Dynamic Flooring sought to minimise the content of these paragraphs and also sought to minimise the effect of the photographs to which his Honour referred in his par 66. He also sought to minimise the evidence of Mrs B. Taylor who lived at 1 Loxton Avenue who gave evidence, which both in its own right and also when taken in conjunction with the photographs, supported the general wetness case.

34 Notwithstanding the efforts to minimise this evidence, however, certain aspects of it stand out. One is that when the evidence is read and compared with what the trial judge said in his par 66, it is obvious that he accepted Mr Carter’s evidence and also Mrs Taylor’s evidence in regard to the general wetness aspect of the case. The other is, that once it is recognised that the trial judge accepted that evidence, it really was not open to Dynamic Flooring to try to minimise it in the way attempted. Perhaps counsel’s best point was that the evidence was not very clear or very specific, (although some of Mrs Taylor’s evidence was quite specific), but in my opinion it was quite sufficient to enable the trial judge to base the findings upon it which he did.

35 In addition to the evidence of Mr Carter and Mrs Taylor, there was evidence from Mr Connell, a long time resident in the immediate neighbourhood.

36 These various materials were, in my opinion, quite sufficient to justify the factual conclusions reached by Hodgson CJ in Eq.

37 There was a further argument directed to the trial judge’s fact finding in Dynamic Flooring’s written submissions, which was not further explained or elaborated in the oral submissions. This was to the effect that Hodgson CJ in Eq had made a mathematical or deductive error in reaching the conclusion by inference which he stated in par 66 about how the work done by Dynamic Flooring on No 20 had brought about the result that water which used to lie in the back of No 20 now passed on to No 18. In my respectful opinion, the trial judge’s inference seems to me to be a logical one from the premises which he stated, which were in turn, based on the evidence of “general wetness” which I have been discussing in immediately preceding paragraphs.

38 In my opinion, Dynamic Flooring’s reformulated ground 1 does not succeed.

39 Ground 2.The two limbs of this ground reflect the two frequently asserted aspects of the tort of nuisance, that it is for the claimant party to establish that the actions of the defending party caused damage to the claimant party’s property or substantially interfered with that party’s comfort and convenience in use of that party’s property; and for the defendant party to establish that the use of that party’s land was a natural or reasonable use.

40 Amongst the authorities cited to the court on this aspect of the case was Don Brass Foundry Pty Ltd v Stead (1948) 48 SR 482 in which the trial judge held as follows:

“On the whole, I am satisfied that the plaintiff has been subjected to and is further threatened with inconveniences materially interfering with the ordinary physical comfort of life according to plain sober and simple notions of our people and that these inconveniences arise from the unjustifiable and unreasonable use by the defendant of its land.” (at 485)

41 Although Jordan CJ stated the tests somewhat more elaborately in his reasons in the appeal against the trial judge’s nuisance findings, he accepted that the trial judge had not misdirected himself in acting on his findings in the passage reproduced above. Davidson J accepted the trial judge’s formulation, in its terms, without critical comment (at 491). The third judge in the appeal did not give separate reasons. The appeal was dismissed.

42 For the purposes of the present case, it is in my opinion sufficient to adopt the trial judge’s formulation in the Don Brass Foundry case; and see also The Law of Torts, J.G. Fleming, 9th ed, 1998, at 464-471.

43 Ground 2(i). The submission for Dynamic Flooring under the first part of ground 2 was that the facts as accepted by the trial judge negated the material damage for which Mr and Mrs Carter had contended and, in substance, led to a finding of inconvenience which, it was submitted, was not sufficient to fulfil the requirements of the tort of private nuisance.

44 Hodgson CJ in Eq’s reasons seem to me to show unquestionably that he was applying the appropriate test to the question which is the subject of this part of ground 2. His factual finding was that “some damage in the sense of loss of amenity is proved”. That is, his opinion was that the degree of inconvenience caused by water coming on to the land of Mr and Mrs Carter as a result of what Dynamic flooring had done on No 20 was sufficient to warrant his holding that a private nuisance had been created, unless Dynamic Flooring could persuade him that its use of No 20 (including the work it had done there) was reasonable. The conclusion required evaluation on the judge’s part: on his view of the facts, was a sufficient degree of interference with convenience established? The trial judge recognised that the inconvenience was at the lower end of the relevant range, but nevertheless thought it was sufficient for purposes of the cause of action. I do not think he made any legal or factual error in coming to his conclusion. It appears from the evidence that 18 Marandowie Drive has been Mr and Mrs Carter’s home since April 1988. That is, the “general wetness” case found to be established by the trial judge affected the land on which Mr and Mrs Carter lived. It seems to me completely understandable that this would be a matter of substantial and continuing inconvenience to their enjoyment of their home. I do not think that Dynamic Flooring’s submissions to the contrary should be accepted.

45 Ground 2(ii). Stated shortly, the argument under this heading is that the trial judge should have found that Dynamic Flooring’s use of the land was reasonable in the circumstances. In par 18 above I stated, in slightly abbreviated form, what the trial judge had said on this issue. Although what he had to say was in comparatively short form, he was, in my opinion, applying the correct test in the circumstances and was entitled, on the material before him and his findings on it, to come to the conclusion that he arrived at. I do not think that Dynamic Flooring’s submission on this aspect of the case should be accepted.

46 Conclusion. In my opinion Dynamic Flooring’s appeal fails and should be dismissed with costs.

47 BEAZLEY JA: I agree with Priestley JA.

I agree with Priestley JA.

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