Lewis v The Council of Mosman

[2001] NSWSC 1144

CITATION:	Lewis v The Council of Mosman [2001] NSWSC 1144
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	SC 20259/1994
HEARING DATE(S):	7/11/2000 - 10/11/2000; 13/11/2000; 16/11/2000; 21/11/2000; 15/12/2000
JUDGMENT DATE:	13 December 2001
PARTIES :	Colleen Anne Lewis (1st plaintiff) Michael Norman Rayhill (2nd plaintiff) The Council of Mosman (defendant)
JUDGMENT OF:	Hidden J at 1

COUNSEL :	D Elliott (plaintiffs) D McGovern (defendant)
SOLICITORS:	Barkell & Peacock (plaintiffs) Phillips Fox (defendant)
CATCHWORDS:	Proceedings in negligence and nuisance - issue of liability only - question of causation.
DECISION:	Verdict for the defendant.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
20259/94
HIDDEN J
Thursday 13 December 2001

Colleen Anne Lewis & Michael Norman Rayhill v The Council of Mosman

Reasons for Judgment

1 HIS HONOUR: The first plaintiff, Colleen Ann Lewis, is the owner of a property at 42A Bay Street, Beauty Point. (The property was acquired in 1963 by a company in which she had an interest.) A substantial house was built on the land in the late 60s. The second plaintiff, Michael Norman Rayhill, is Ms Lewis’ husband. He has also been her solicitor over the years. Ms Lewis had resided in the home from its construction and Mr Rayhill joined her in 1976. There they lived together until the house was extensively damaged by fire on 1st May 1988.

2 It is the plaintiffs’ case that the fire was a result of water seeping into the house, having flowed onto the property from a lane which was the responsibility of the defendant, the Council of Mosman. The plaintiffs have brought proceedings against the Council in negligence and nuisance. I am asked to determine the question of liability only.

3 The relevant part of Bay Street runs from south to north. The ground slopes steeply from Bay Street in a westerly direction towards the water at Quakers Hat Bay. The lane, known as Pulpit Lane, is really a bush track running west from Bay Street down to a reserve on the waterfront. The plaintiffs’ property, number 42A, is a battleaxe block above the waterfront and immediately to the south of the lane. Access to the property is gained by a fairly long, sloping driveway.

4 The house at 42A was built into the hill and had three levels. The front door was on the top level, level three, and the driveway led to a garage on that level. There was a small courtyard outside the middle level, level two. The bottom level, level one, contained the laundry and the plant room, a separate room in which the electrical fuse box was housed.

5 The days leading up to the fire were wet and there was heavy rain on the day before it, Saturday, 30 April 1988. According to the plaintiffs, water pooled in the courtyard at level two to a depth of about thirty centimetres. It seeped into the house through the cedar doors giving on to the courtyard. The fire broke out after 2am on the Sunday, 1st May. It started in level one, although exactly where is a matter of contention, and spread to the upper levels. Whether it was the rainwater which caused the fire is very much in issue and it is best to deal with that matter immediately.

Fire

6 Mr Roger Bucholtz, a district officer with the New South Wales Fire Brigade, was the duty fire investigation officer who attended the scene, arriving at 4am. He provided a report, which is in evidence. Among other things, he recorded having observed severe damage to the fuses in the fuse box. He was unable to determine the cause of the fire, but expressed the opinion that it was most probably a short circuit in the electrical wiring in level one. He added that this was based on his observations at the scene and was “without the benefit of any scientific investigation”.

7 Dr Robin MacMillan, Director of the Fire Investigation Unit at the University of Technology, Sydney, investigated the fire in May 1988 for the insurance assessors. He was unable to make a positive determination of the cause of the fire at that time, but considered it likely that it was electrical and that the fire had originated at the fuse box. However, in February 1998 he produced a further report, having again visited the scene and having been provided with information by Mr Rayhill about the heavy rain and the penetration of water into the house.

8 The external doors at level two led into a carpeted foyer, from which a staircase led down to level one. On a wall opposite those doors was a power point, which was about fifteen centimetres above the floor. Dr MacMillan considered that water may have soaked through the carpet so as to penetrate the cavity beneath the timber floor of level two, which contained electrical cables leading to the fuse box. Alternatively, he thought that the pooling of water in the courtyard was sufficient to have penetrated the walls, so as to come in contact with the cables running from the power point to which I have referred. By either means, he reported, water could have flowed down the cables to the fuse box, leading to an electrical fire. This, he concluded, was the most likely cause of the fire.

9 Associate Professor Trevor Blackburn of the School of Electrical Engineering at the University of New South Wales, who did not visit the site, provided a report to the plaintiffs in December 1995. He also concluded that the fire had been caused electrically due to contamination of the electrical wiring by moisture. However, he understood that water had pooled in the foyer itself to a depth of about thirty centimetres, so as to cover the power point, and he saw this as the source of the contamination. In oral evidence, he said that his conclusion would be “much less probable” if that were not the case. Of course, it could not have been and in evidence neither plaintiff suggested that it was. As I have said, there was a staircase leading from the foyer to level one, and for water to have reached such a depth in the foyer the lower level would have to have been flooded. Dr MacMillan, who also gave oral evidence, was under no such misapprehension and Associate Professor Blackburn’s report did not cause him to change his opinion.

10 Associate Professor Blackburn explained how moisture on electrical wiring might cause a fire but, fortunately perhaps, it is unnecessary to summarise that evidence. He also explained that it is likely that contamination of that kind would not trigger fuses or circuit breakers (described in his report as ‘over-current electrical protection’) as they operated in 1988. This evidence is not in dispute.

11 Mr Bucholtz reported a conversation with a neighbour at 42 Bay Street, an adjoining house, who said that the lights in his house flickered a couple of times about five minutes before he noticed the fire at 42A. A representative of Sydney Electricity told Mr Bucholtz that this could have been the result of a short circuit in an electrical feeder line which the two properties shared. Dr MacMillan thought it possible that this was associated with a power surge which might have caused an electrical appliance in 42A to “blow”, leading to the fire. However, he thought it more likely that the flickering observed by the neighbour was the result of interference with the electrical system by a fire which had already begun. He explained that the “growth phase” of a fire, that is, its development from ignition to a “full fire”, can be quite slow. For that reason, he attached little significance to the fact that the neighbour did not see the fire until some minutes after the flickering. For his part, Associate Professor Blackburn discounted a power surge as the cause of the fire.

12 There was evidence raising the question whether the fire started in a clothes dryer in the laundry. Dr MacMillan reported having observed remnants of burnt clothing in the dryer. More importantly, Mr Gerald Wolff gave evidence that on 6 July 1988, a little over two months after the fire, Ms Lewis told him that she believed that it had started in the dryer.

13 Mr Wolff is a quantity surveyor, who had known Ms Lewis for many years. She had engaged him in his professional capacity at the time the house was built. After the fire she again sought his professional assistance for the purpose of her insurance claim. She contacted him in early July 1988 and he met her at the property on 6 July. According to him, Mr Rayhill was also there and they were introduced. His evidence was that Ms Lewis said words to this effect:

My home was destroyed by fire on 1 May 1988. The fire apparently started in the clothes dryer while I was having a shower and Michael was asleep in front of the television. As you were involved in the original construction of the house, you probably have some recollection of the house and in this way you could assist us with our claim against the insurance company.

14 That Ms Lewis was having a shower and Mr Rayhill was asleep in front of the television before they became aware of the fire is consistent with their own account of what occurred in the early hours of that morning. Ms Lewis agreed in evidence that the meeting with Mr Wolff occurred on 6 July and that, apart from saying that the fire had apparently started in the dryer, she had said what he attributed to her. However, she denied having used the clothes dryer on the night in question and said that she did not remember having told Mr Wolff that she believed it to have been the source of the fire. Mr Rayhill’s evidence was that he did not recall the meeting with Mr Wolff, although he accepted that Ms Lewis may have had the conversation outlined by Mr Wolff apart from the reference to the clothes dryer. He emphatically denied that Ms Lewis had said any such thing in his presence.

15 Mr Wolff was cross-examined with some vigour and his credibility was challenged by counsel for the plaintiffs in final submissions. However, on balance, I accept his evidence about Ms Lewis’ reference to the clothes dryer. It may be that the dryer was used that night, despite her protestations to the contrary. However, the evidence establishes no more than that, at the time she spoke to Mr Wolff, Ms Lewis believed the fire to have originated in the dryer. It is not suggested that she witnessed the onset of the fire and Mr Wolff acknowledged that he did not ask her why she was of that belief. This evidence may bear upon her credibility and that of Mr Rayhill, a matter with which I shall deal later, but the question of the cause of the fire can be resolved only by reference to the expert evidence.

16 Dr MacMillan said that fires in clothes dryers are common, usually due to restriction of the air flow because the lint filter has not been kept clean. However, he excluded the dryer in the present case because, from his observation of the spread of the fire, it did not appear to him to have originated in the laundry. Rather, it had spread to the laundry from the direction of the plant room. Associate Professor Blackburn discounted an electrical fault in any of the appliances in the house as the cause of the fire. He thought it unlikely that the dryer would have overheated and ignited because, he said, dryers are fitted with an “over temperature cut out” and, in any event, are tested for their ability to operate under normal conditions without causing a fire. The matter was not pursued further in his evidence.

17 This issue is by no means free of difficulty but, on balance, I am satisfied that the fire was caused by the contamination of the electrical wiring by water. Associate Professor Blackburn explained that there are circumstances in which an electrical fire can be caused by the accumulation of moisture over an extended period of time, but I think it more likely that this fire was the result of the penetration of rainwater into the house on the occasion in question.

Rain

18 As I have said, number 42A was towards the bottom of the slope from Bay Street to the reserve on the waterfront. On the northern side of Pulpit Lane, roughly opposite 42A, was number 48. Above 42A, to the east of it and fronting onto Bay Street, was number 46. On the other side of 42A, to the south of it, was number 42, and to the east of 42 was number 44.

19 Underneath the lane was an earthenware storm water pipe known, for historical reasons which need not concern us, as the “dairy pipe”. It was many years old and had not been laid by the Council. In 1987 the Council did some work to improve the lane as a walking track in preparation for the Bicentennial celebrations the following year. Prior to that it had been a rough bush track, overgrown by various forms of vegetation. The soil in the lane is shallow and sandy, and there are a number of outcrops of sandstone.

20 In April 1969 Ms Lewis complained to the Council that surface water from number 48 was running across the lane and onto her property. In evidence, she said that she also reported that the dairy pipe was broken and that the Council had the pipe repaired, although there is no reference to this in the Council’s records of her complaint. On the other hand, those records contain an engineer’s report that a twelve inch by eighteen inch channel would be required to eliminate the problem although, as he did not believe the matter to be the Council’s responsibility, the engineer did not recommend that that work be carried out.

21 According to Ms Lewis, there were no further problems with the run-off of water until the 1980s. In the early 80s the owner of number 46 built an extension to the home and obtained Council approval to direct the outflow of roof and surface storm water to the dairy pipe. In January 1986 Ms Lewis complained to the Council about flooding of her property by storm water from the tennis court at number 44 and from the extension to number 46. The Council’s record of an inspection of the site in March 1986 contains an observation that the dairy pipe “may be defective as soil has subsided in certain areas”. The document went on to record that a memo had been sent to the Council’s engineer about the pipe, but that Ms Lewis was informed that she must accept a certain amount of surface run-off because of the position of her property towards the bottom of the slope.

22 Ms Lewis had been conscious of the problem of storm water run-off at the time the house was built. She had drains constructed around the property, together with a large sump at the edge of the driveway. In particular, there were drains in the courtyard at level two. The condition of the drains at the time of the fire is a matter to which I shall return. In the mid-1980s Ms Lewis sought and obtained Council’s approval to extend the home so as to convert it into a dual occupancy. At around that time she made application to the Council for permission to connect her stormwater outflow to the dairy pipe, but that application was refused.

23 The Bicentennial project undertaken in 1987 involved improvements to the lane as part of a walkway which continued through the waterfront reserve to the Spit. The lane was cleared of overgrowth and some natives were planted. It may also be that some large exotic trees were removed, although the evidence about this is not entirely clear. Steps with timber risers were inserted at a number of positions on the slope. So much appears from Council records and from the evidence of Mr Brian Leckey, who was the Council’s chief engineer at the time. I accept also that bark was laid as ground cover. This does not emerge from Council records or Mr Leckey’s evidence, but it is the evidence not only of the plaintiffs but also of Mr Jack Davies, an engineer whom they engaged around the time the work was done.

24 According to the plaintiffs, the work on the lane led to an increased flow of water onto the property when it rained. Ms Lewis’ evidence was that it increased “dramatically”. In heavy rain bark from the ground cover would also be washed onto the property. Mr Davies did not observe the run-off of water on any occasion that he was there, but in a report of February 1988 he observed that, as a result of the work, “the ground has compacted and thus increased the velocity and amount of any overland water flow in the event of heavy rain.” This, he explained in evidence, was because the lane had been “cut and contoured” so that it would be easier to traverse. The effect, he said, was to divert toward no 42A water which would normally have run down a natural depression in the ground.

25 In November 1987 Mr Rayhill, as Ms Lewis’ solicitor, wrote to the Council to complain about the increased flow of water, which he attributed to the fact that the dairy pipe had “completely collapsed”, to the connection to that pipe of storm water from number 46 and to the Council’s development of the lane. In a reply of December 1987, the Council undertook to investigate the “inter allotment drainage” but, relying upon the advice of Mr Leckey, denied that the improvements to the lane had anything to do with the problem. Mr Rayhill wrote a further letter to the Council in March 1988, calling in aid the opinion of Mr Davies in the report to which I have referred. An internal report of 20 April 1988, attributed to the chief engineer, described the improvements to the lane as “minor” and maintained that they would not have increased “the velocity or amount” of the water flowing across it.

26 The plaintiffs gave evidence that on Friday, 29 April 1988, a day or so before the fire, they met Mr Leckey and Mr Davies at the home. It was their evidence that it was raining slightly and a small amount of water was flowing from the lane onto the property. Mr Leckey said something to the effect that their complaint about the problem had been passed from one council officer to another until it was ultimately referred to him. According to the plaintiffs, he also said that water should not have been flowing onto the property and that he would investigate the matter.

27 Mr Leckey gave evidence. He recalled such a meeting with Mr Rayhill and Mr Davies but he did not remember Ms Lewis being present. He did not recall that it was raining and he said that he did not see water flowing from the lane onto the property. He had no recollection of saying that he would investigate a problem of that kind. He said that the plaintiffs’ complaint had been passed around between the Council’s Health Department and its Engineering Department, there having been a dispute as to which of them should deal with it. In evidence, Mr Davies had no more than a vague recollection of a meeting at the property with someone from the Council, but he could not recall who it was or any detail of what occurred.

28 In late 1988, some months after the fire, it came to the plaintiffs’ attention that the storm water run-off from no 48, as well as no 46, was connected to the dairy pipe. (The evidence does not disclose when this was done or whether it was the subject of Council approval.) In February 1989 Mr Rayhill wrote to the Council to enquire what was being done to rectify a continuing drainage problem in the lane, and proposing an “open dish drainage system” as the best solution. An investigation by the Council in 1988 had established that the dairy pipe was broken or blocked adjacent to the boundary of the lane with no 42A, and this correspondence led the Council to request the owners of no 46 and no 48 to have the pipe repaired. This was done. However, in February 1990, Mr Rayhill again wrote to the Council to complain that the problem of run-off from the lane into 42A remained and, again, to urge the construction of an open storm water drain. In the following month the Council replied that it would not meet the cost of constructing such a drain, denying that the control of surface water on the lane was its responsibility.

29 Some years after the fire no 48A, a substantial Tuscan style residence, was built immediately above (to the east of) no 48. At that time a channel was dug in the lane and a new stormwater pipe was inserted (by the developers, I take it, not the Council). Thereafter, according to Ms Lewis, the problem of water flowing from the lane onto the property ceased. It is against this background that the plaintiffs’ case is to be understood.

30 The plaintiffs allege that, by permitting the connection of the storm water from no 46 to the dairy pipe and by its work on the lane in 1987, the Council became the occupier in the relevant sense of the pipe and the lane. It is further alleged that the Council failed to take due care in the maintenance of the pipe and in the execution of the improvements to the lane, giving rise to the flow of water from the lane onto no 42A from which the fire resulted. It is said that, as early as 1969, the Council was on notice of the problem of run-off of water from the lane onto the property and of the means whereby it might be remedied: see para 20 of these reasons. Mr Leckey agreed that such a measure, similar to that which was put in place when no 48A was built, would have been effective.

31 Two engineers specialising in hydrology prepared reports and gave evidence: Associate Professor James Ball, for the plaintiffs, and Dr Stephen Perrens, for the Council. Associate Professor Ball was engaged last year and Dr Perrens in 1998. Both were of the view that the natural state of the lane, with its shallow soil and rocky outcrops, rendered it prone to surface water run-off.

32 Associate Professor Ball found the Council’s records of the Bicentennial work inadequate to determine whether it might have increased the water flow or altered its direction. That is consistent with my own examination of the Council documents which are in evidence. He did say, as one would expect, that clearing of vegetation would enable water to flow more freely. Dr Perrens thought it unlikely that the Bicentennial work would have had any significant effect upon the flow of water in the lane. His observation was that the natural terrain of the lane was such as to direct water towards no 42A and, given the limited nature of the work undertaken in 1987, he considered that the outcrops of rock provided “limited opportunity for radical change of the land levels”. He was taken to Mr Davies’ report but disagreed with his conclusions.

33 While it is not clear from the evidence, I am prepared to accept that Mr Davies, unlike Associate Professor Ball and Dr Perrens, had the advantage of seeing the lane before and after the work was done. On the other hand, Mr Leckey had the overall supervision of the work and visited the site from time to time while it was in progress. In evidence, he did not appear to have a detailed recollection of what was done but he said that he “would not think” that there was any change of the natural course of the path, so as to direct the flow of water towards no 42A.

34 Figures obtained by Dr Perrens demonstrate that between October 1987 and May 1988 rainfall in the Mosman area was in the order of three times the average for Sydney. Associate Professor Ball explained that moisture on the surface of the lane would reduce such capacity for absorption as it had when it was dry, so that continuing rain would give rise to even greater surface run-off. The reports of both experts contained figures for rainfall in the relevant area in the period leading up to the fire. These led Associate Professor Ball to observe that the rain of 30 April 1988 was “not an extreme event…”. Dr Perrens concluded in his report that, although there had been steady rain over several days, at no point was it so intense as to lead to run-off which could not be accommodated by an adequate drainage system. In evidence, he maintained this opinion upon the assumption that additional water was flowing onto the lane from the broken dairy pipe.

35 Dr Perrens visited the site in mid-1998. It is accepted that the drainage system at that time is not significantly different from that which was in place in 1988. In his report he questioned the adequacy of the system, given the location of the house, but this matter was not pursued in any detail in his oral evidence and, on the limited material I have, I could not arrive at any firm conclusion about it. Associate Professor Ball said that he did not have sufficient information about the design to enable a detailed analysis of the system. However, he noted the absence of any complaint by the plaintiffs between the end of the 1960s and the mid-1980s and said that, in his experience, “…where people get wet they complain frequently and loudly”.

36 The question remains, then, what was the condition of the drains at the relevant time. Both plaintiffs gave evidence that they engaged a cleaner who, among other things, regularly cleared the drains of leaf litter and the like. Notwithstanding that, Ms Lewis said that the rain in the late afternoon prior to the fire was so heavy that she checked the drains to ensure that they were clear, using an umbrella for that purpose.

37 In 1986 and 1987 Mr Warren Clabburn was a health and building surveyor with the Council. In September 1986, as a result of a complaint, he inspected the plaintiffs’ property and noticed a large number of items placed on the driveway and around the external walls. On subsequent visits in 1986 and early 1987 his observations were substantially the same.

38 As a result, in June 1987 he issued Ms Lewis with an order under an ordinance then in force to remove those items, which were said to be likely to harbour vermin. Attached to that order was a schedule specifying the items and indicating where on the premises they had been observed. It comprised a wide variety of articles, from household appliances and pieces of furniture to bottles and boxes of canned food. They were said to have been seen on the driveway, around the walls under the eavesline and at the rear of the house (its western elevation). Some of this material can be seen in photographs which are in evidence, and which were taken by Mr Geoffrey Page in mid-1987 for reasons which are of no present relevance.

39 The plaintiffs’ evidence was that there were only household items and building materials required for the proposed conversion of the home to a dual occupancy and, because the commencement of the work had been delayed, they had had no choice but to store them on the site. They said that most of the items were placed on pallets and all material was positioned so as not to obstruct the drains. This appears to me to be a somewhat sanitised account of what appears in the photographs, although it is not possible to determine from them whether any of the drains was blocked.

40 Mr Clabburn made no particular observation of the drains on the occasions he was at the property. Mr Page, who gave evidence, was not asked whether he had. Of course, neither man had any reason to give that matter his attention. On the other hand, Mr Davies observed the drains to be blocked with silt, leaves and bark when he visited the property in early 1988 and it did not appear to him that they were being properly maintained. He observed items outside the house such as those depicted in the photographs and described the site as “disorderly”. While he did not think that those items would have contributed significantly to a failure of the drainage system, he saw them as “more of a hindrance than a help”. Associate Professor Ball, shown the photographs, said that the articles had the potential to cause problems with the drainage and agreed that it was not the way he would wish to maintain his own home.

41 I have already referred to the conflict between the evidence of the plaintiffs and that of Mr Wolff, and to the fact that this may bear adversely upon the plaintiffs’ credibility: see para 15 of these reasons. The same must be said of the conflict to which I have just referred between their evidence and that of Mr Davies. By this I do not mean that I find either of them to have been consciously dishonest. Of the two, I found Mr Rayhill’s demeanour to be the more dispassionate. Nevertheless, both were defensive witnesses at times. Given what is at stake in these proceedings and the traumatic nature of the event giving rise to them, it is perhaps understandable that there might be some unconscious colouring of the plaintiffs’ recollection in a manner favourable to their cause. However that may be, I do not accept that Mr Leckey made the statement attributed to him at the meeting on 29 April 1988 about the water flowing onto the property: paras 26-27 above. Equally, I do not accept that the drains were maintained in the manner which the plaintiffs claimed or that Ms Lewis checked them in the afternoon of 30 April.

Conclusion

42 Clearly, the drainage system was overwhelmed in the period leading up to the fire. The question is whether that can be fairly attributed to any act or omission of the Council. I am not satisfied that it can. No doubt, rainwater did penetrate the house at the relevant time, although whether it pooled in the courtyard at level two to the extent which the plaintiffs claim I cannot say. However, it is as likely as not that this was the result of a failure adequately to maintain the drains, exacerbated by the condition of the exterior of the house generally.

43 Mr Davies, Associate Professor Ball and Dr Perrens were agreed that the position of the property was such as to make it particularly vulnerable to rainwater run-off from the houses above it, from the lane and, indeed, from Bay Street itself. Complaints by the plaintiffs about run-off in the 1980’s began before the Bicentennial improvements to the lane were undertaken (para 21 above), and continued in 1990 after the dairy pipe had been repaired (para 28). It may well be that the problem ceased after the new pipe was laid at the time no 48A was built, but that is not to the point. I accept Dr Perrens’ evidence that the dimension of that pipe is greater than would reasonably be required and that, in any event, an effect of the construction of no 48A (and, apparently, a new driveway for no 48) has been to reduce the flow of rainwater onto the lane.

44 As I have said (para 32 above), Dr Perrens discounted the improvements to the lane as a cause of increased run-off onto no 42A, while Associate Professor Ball expressed no concluded view about the matter. In his report the Associate Professor thought it likely that the seepage of water into the house was the result of “a diversion of surface run-off flows … from adjacent properties”, accepting the lane as a possible source. This was based upon the assumption that the drains on the property were not blocked, which I am not prepared to assume. In evidence, he acknowledged that he could say no more than that the drainage system had failed. He added:

Whether it failed because it was inadequate or whether it failed because of the condition of the system or whether it failed because additional water was added into the system is a little bit open to conjecture.

45 For the proposition that the improvements to the lane affected the flow of water onto the property the plaintiffs are reliant upon the evidence of Mr Davies. His report of 1988 is relatively brief and, in evidence, his recollection of his observations at that time was not always precise. This is hardly surprising, given the intervening years and the fact that he no longer had access to any contemporaneous notes. I have referred (para 24 above) to his evidence that the effect of the development of the lane was to divert water towards no 42A. However, it is noteworthy that his report did not refer to this and asserted no more than that the ground was compacted, so as to increase the volume and speed of the flow of surface water. As I have said, on no occasion did he actually see water flowing onto the property. I found Mr Davies to be an intelligent and objective witness but, at the end of the day, I could not accept his evidence about this matter in preference to that of Mr Leckey and Dr Perrens.

46 What I have written is a terse but, I hope, adequate summary of a considerable volume of material, calculated to deal with the factual issues in the case as they were refined in the final submissions of counsel. I have given this aspect of the matter anxious consideration but I have determined that the plaintiffs have not made out their case. Argument was also directed to whether the Council owed the plaintiffs any relevant duty of care, whether the damage alleged was reasonably foreseeable and whether, in any event, Mr Rayhill could be said to have suffered any damage. The Council also sought leave to rely upon an amended defence that the proceedings were statute barred. In the event, none of these matters needs to be decided.

47 There must be a verdict for the defendant. If necessary, I shall hear the parties on costs.

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Last Modified: 12/19/2001