Marshall v Berndt
[2011] VCC 384
•7 April 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES LIST - GENERAL DIVISION
Case No. CI-08-01215
| NERISSA MARSHALL | Plaintiff |
| v | |
| PETER KURT BERNDT | Defendant |
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| JUDGE: | HIS HONOUR JUDGE PARRISH |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 29 and 30 April 2010; 3, 4, 5, 6, 7, 10, 11, 12, 13, 14, 17, 18, 19, 20, 21, 24, 25 and 26 May 2010 and 27 July 2010 |
| DATE OF JUDGMENT: | 7 April 2011 |
| CASE MAY BE CITED AS: | Marshall v Berndt |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 384 |
REASONS FOR JUDGMENT
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Catchwords: Domestic dispute between neighbours – tree root encroachment – poisoning of plants – negligence – nuisance – relevant law to be applied – res ipsa loquitur – reasonable inference.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M H Whitten | Adams Maguire Sier |
| For the Defendant | Mr A G Southall QC with | Hall & Wilcox |
| Mr D J Wallis | ||
| HIS HONOUR: |
Introduction
1 In this proceeding, the Reverend Mother Nerissa Marshall, who I shall refer to as the plaintiff, sues her long-term residential neighbour, Mr Peter Kurt Berndt, who I shall refer to as the defendant, for damages in relation to alleged tree root and ivy encroachment and poisoning of various plants and fish.
2 The plaintiff is a seventy-five-year-old woman who purchased, with her mother, the house and land situated at 17 Eric Avenue, Lower Templestowe, about thirty years ago. Since about 2003 (after the death of her mother), the plaintiff has been the sole owner and occupier of the house and land (which I shall refer to as “the plaintiff’s property”).
3 The defendant is a sixty-nine-year-old man who purchased land at 15 Eric Avenue, Lower Templestowe, on which he had a house built in or about 1972. (I shall refer to his house and land as “the defendant’s property”). When he moved into his house in 1972, there was already a house situated on the plaintiff’s property.
4 The Court had a view of both properties on 30 April 2010[1] and has also been provided with various drawings and descriptions of both properties by a variety of expert witnesses.
[1] See s.54 of the Evidence Act 1998
5 Both properties are essentially normal rectangular house blocks facing south to Eric Street. Both houses share a common fence running from Eric Street to the northern end of each property.
6 The plaintiff’s property consists of a timber dwelling on a block on which there is a paved driveway on the west side leading to a paved carport area. Down the west side of the dwelling are a study, a relatively large living (lounge) room leading to a timber deck. On the western side of the dwelling there are some garden beds at the front with a paved garden path leading from the rear of the car park to the north end of the property.
7 In the rear of the property on the western side abutting the fence is what is referred to as a “steel garden shed” and further down the fence there is what is referred to as a “tropical house”.
8 Throughout the backyard there are a large number of black aquatic tanks wherein grow a variety of water plants and which also contain fish.
9 The defendant’s property consists of a modest dwelling surrounded by a variety of shrubs and trees.
The Proceedings
10 The present claim of the plaintiff is set out in what is referred to as the Second Further Amended Statement of Claim dated 29 April 2010 which pleads two causes of action, each of which relies on the torts of nuisance and negligence.
11 The first cause of action, which I shall refer to as “the tree root encroachment claim”, concerns allegations that tree roots and shrubbery emanating from the defendant’s property have caused damage to both external and internal areas of the plaintiff’s property, with the claimed costs of rectification being $95,700.00.
12 The second cause of action, which I shall refer to as “the poisoning claim”, concerns allegations that the defendant applied herbicides and/or toxic chemicals between late 2002 and about 2009 which spread to and contaminated the western side of the plaintiff’s property, causing damage and destruction of plants, with the claim said to be valued at $229,000 and the loss of some common goldfish and two hybridized fish valued at $1,000.00.
13 The defendant denies any liability in relation to both claims.
14 The present allegations made by the plaintiff should be put in the context of the long running litigation between the parties. The history of such litigation includes:
(a)
On 14 June 2001, the plaintiff (and her mother) issued proceedings against the defendant in the Magistrates’ Court, alleging:
(i) that trees, ivy, vines and creepers emanating from the defendant’s property “penetrated the land” in the plaintiff’s property from “since early 1996” causing damage to the dwelling of the plaintiff and the brick paving in the plaintiff’s property. Particulars of loss were said to be $660.00 for restumping, $1,050.00 for repair of the brick paving and $1,886.00 for the rectification of resultant damage;
(ii) that a Notice to Fence pursuant to the Fences Act 1968 was served on the defendant by the plaintiff on 16 October 1998 and that no agreement had been reached between the parties in relation to such fence. The sum of $1,512.54 was sought for the cost of a replacement fence;
(iii) the ivy and creepers emanating from the defendant’s property entered the plaintiff’s property causing damage to aquatic tanks and various plants and fish which were contained in such tanks, and that the defendant on numerous occasions had ignored the complaints of the plaintiff. The particulars of that loss were said to include the sum of $2,537.00 for removal and repair of aquatic tanks; $8,775.00 for replacement of stocked plants; $1,250.00 for replacement of breeding fish; $5,850.00 for loss of sales on plants per annum; and $500.00 for loss of sales of fish per annum.
(b)
On or about 9 January 2006, the Particulars of Claim in the Magistrates’ Court were amended by alleging:
(i)
that not only had the defendant created a nuisance but also he was negligent in permitting the trees and ivy to encroach on the plaintiff’s property;
(ii)
that the defendant failed to take any or any adequate action to prevent or abate the nuisance until about 15 April 2002 when he engaged “Peter James Tree Services and Stump Removal” to remove certain trees from the defendant’s property;
(iii)
that such activity resulted in “large quantities of green sap, sawdust and chainsaw oil” being deposited on the plaintiff’s property and causing contamination of aquatic tanks which house plants and fish;
(iv)
that the defendant had breached an agreement for the replacement of a fence;
(v)
that the particulars of the cost of the resultant losses were $660.00 for restumping; $9,650.00 for consequential building damage; $4,840.00 for repairs to paving; $6,100.00 for repairs to the tropical house; $5,500.00 for repairs to aquatic tanks; $13,680.00 for rectification of soil subsidence and cleaning tanks; $1,840.00 for emergency repairs and access heating overheads; $25,900.00 for importation of replacement plants from Europe; $400.00 for importation of replacement plants from the USA; $4,850.00 for plant quarantine; $4,950.00 for importation of replacement fish; $250.00 for replacement of local fish; $6,700.00 for fish quarantine; and $1,520.00 of transit charges for fish importation.
(c)
On 17 March 2008, the Magistrates’ Court proceeding against the defendant was uplifted to the County Court, and by leave of that Court on 11 April 2008, an Amended Statement of Claim was filed by the plaintiff. The substantial change in such Amended Statement of Claim was the joinder of Peter James, who performed the tree removal work on or about 15 April 2002 (and possibly 25 April 2002). James was alleged to have performed such work negligently, being a cause of the damage caused by the plaintiff. It is to be noted that the costs to rectify any damage did not alter, although it was asserted that further particulars of loss and damage would be provided prior to trial.
(d)
Leave was granted to the plaintiff to further amend her Amended Statement of Claim by order of this Court on 9 October 2009. In particular:
(i)
the further amendments included the addition of paragraphs 10A- 10C, which is the essence of the poisoning claim. In particular, paragraph 10B alleges:
“Between late 2002 and the present, and in breach of the aforesaid duty of care, the first named defendant applied or caused to be applied herbicides and/or toxic chemicals negligently and without any or any proper regard for the safety of the plaintiff or her property which spread to and contaminated the plaintiff’s property and thereby caused or permitted to be caused a further nuisance.”
(ii) the cost to rectify the damage allegedly caused by the tree root encroachment claim was now said to be $95,700.00 based on the expert report dated 30 July 2009 from Mr Edmund D’Cruz, quantity surveyor.
(iii) the claim against the defendant and Peter James in relation to the tree cutting and pruning on 15 April 2002 was said to be $154,648.00, being for loss of fish due the contamination of the tanks;
(iv) the claim against the defendant in relation to the poisoning claim was said to be $278,461.75, all of which was due to loss of plants, save for $1,000.00, being for common goldfish and two hybridized fish.
(e)
Part of the amendments brought about by the Second Further Amended Statement of Claim for which leave was granted to the plaintiff to file on the first day of the hearing of this proceeding, involved the deletion of any claim against Peter James. I was informed from the Bar table that any claim against him in respect to the tree cutting on 15 April 2002 had been resolved.
Relevant Legal Principles
15 Both parties appropriately and understandably refer to and rely on the recent decision of Robson v Leischke,[2] a decision of Preston, CJ, in the New South Wales’ Environment Court. Such decision sets out comprehensively the relevant common law principles pertaining to nuisance and negligence, particularly in the context of a tree root claim. It is convenient to enunciate some of those principles:
[2] (2008) 72 NSWLR 98
•
Under Australian common law, where a tree causes damage to property, there are three causes of action in tort by which the affected landowner can bring against the owner of the land on which the tree that caused the damage grew – trespass, nuisance and negligence. The tort of trespass, which involves direct entry by a defendant onto a claimant’s land, has no relevance in this proceeding.
•
The tort of private nuisance involves an act or omission which is an interference with, disturbance of or annoyance to a person in the exercise or enjoyment of his or her ownership or occupation of land or some easement, profit or right used in connection with the land and is only actionable on proof of special damage.[3]
•
The tort of nuisance involves fault of some kind or another which generally involves foreseeability and accordingly, liability for nuisance is not a strict liability.[4]
•
Generally, fault involves falling below a standard of behaviour required by law and may be in the form of intentional conduct or negligent conduct.[5]
•
The type of fault required varies depending on whether the defendant created the nuisance or adopted or continued the nuisance.
•
In circumstances where a defendant created the nuisance, the fault element varies depending on the nature of the defendant’s conduct and his or her state of knowledge. Preston CJ refers to Clerk & Lindsell on Torts (19th edition) which identifies three situations where the defendant has created the nuisance. Those situations are described as follows:6
[3] See Robson (op.cit.) at paragraphs 42 and 43
[4] See Robson (op.cit.) at paragraphs 44, 45 and 46, and the cases therein referred to
[5] See Robson (op.cit.) at paragraph 38, and the references therein referred to
“(a)
‘if the defendant deliberately or recklessly uses his land in a way which he knows will cause harm to his neighbour, and that harm is considered by a judge to be an unreasonable infringement of his neighbour’s interest in his property, and therefore an unreasonable use by the defendant of his property, the defendant is liable for the foreseeable consequences. This proposition covers all those cases of obvious or ‘patent’ nuisances, and they are peculiarly the cases which call for prevention or prohibition by injunction. It is no defence that the defendant believed he was entitled to do as he did or that he took all possible steps to prevent his action amounting to a nuisance’ …
(b) ‘if the defendant knew or ought to have known that in consequence of his conduct harm to his neighbour was reasonably foreseeable, he is under a duty of care to prevent such consequences as are reasonably foreseeable. In such case the defendant is liable because he is considered negligent in relation to his neighbour, and here nuisance and negligence coincide’ … and
(c) ‘If the defendant neither knows and intends harm nor is negligent with regard to the consequences of his conduct, then he may be nevertheless liable if the claimant can bring his case within the rule in Rylands v Fletcher (1868) LR 3 HL 330, and in that event there is strict liability’ … .”
Preston, CJ does note that in Australia, strict liability within the rule in Rylands v Fletcher has been subsumed within the law of negligence by the High Court decision in Burnie Port Authority v General Jones Pty Ltd.7
•
Where a defendant continues or adopts a nuisance, different conduct is required before liability will be imposed on a defendant. An occupier of land “continues” a nuisance or a potential nuisance if, with actual or constructive knowledge of its existence, he or she fails, within a reasonable period of time, to take reasonable measures to bring it to an end.8
•
An occupier of land “adopts” a nuisance if he or she makes use of, inter alia, a natural object (such as a tree) which constitutes the nuisance.
•
An occupier of land who knows or ought to know of a nuisance, and the possibility of danger occurring in consequence is a real risk, must take such positive action as a reasonable person, in his position and circumstances, would consider necessary to eliminate the nuisance.9
•
A defendant will be liable if, when the nuisance arose, the defendant did not take any reasonable means to bring it to an end when the defendant became aware, or ought to have been aware, of the existence of the nuisance, and damage results.10
16 As Preston, CJ comments, private nuisance involves balancing, on one hand, the right of one owner or occupier of land to do what he or she likes on their land with, on the other hand, a right of a neighbour not to have his or her use or enjoyment of their property interfered with. The tipping point in the balance is where the consequences of the use by the first person of his or her land unduly interferes, in ways recognised by the law as constituting a nuisance, with the use and enjoyment by the neighbour of his or her property.11
17 The law recognises three kinds of interference as constituting a nuisance:
See Robson (op.cit.) at paragraph 48
(1994) 179 CLR 520
See Robson (op.cit.) at paragraph 49 and the cases therein referred to
See Robson (op.cit.) at paragraph 51 and the cases therein referred to
See Robson (op.cit.) at paragraph 53 and the cases therein referred to
See Robson (op.cit.) generally at paragraph 54
(a) causing encroachment on the neighbour’s land, short of trespass; (b)
causing physical damage to the neighbour’s land or any building, works or vegetation on it; and
(c)
unduly interfering with a neighbour in the comfortable and convenient enjoyment of his or her land.[12]
[12] See Robson (op.cit.) at paragraph 54 and the cases therein referred to
18 Nuisances of the first kind, causing an encroachment, are exemplified by branches or roots of a tree growing on a defendant’s land, encroaching into the air above or the soil below the neighbour’s land.
19 The first kind of interference involving encroachment extends to both overhanging branches interfering with the enjoyment of a neighbour’s property,[13] and encroaching roots have been held to constitute an actionable nuisance in circumstances where the roots encroached onto the neighbour’s property extracting moisture from the ground, causing shrinkage of the soil, undermining the foundations and/or causing cracking or subsidence of the buildings on the neighbour’s land.[14]
[13] See Robson (op.cit.) at paragraph 59 and the cases therein referred to
[14] See Robson (op.cit.) at paragraph 60 and the cases therein referred to
20 In most cases, the mere planting of a tree has not been held to be unreasonable use of land,[15] although the planting of a tree may amount to negligence if it was foreseeable that the planting of such tree would give rise to root encroachment issues. However, if the tree grows so as to encroach, such as by its branches overhanging or its roots growing into the neighbour’s property, and damage is caused thereby, the defendant will be liable in nuisance.[16]
[15] See City of Richmond v Scantelbury [1991] 2 VR 38
[16] See Robson (op.cit.) at paragraph 65; City of Richmond v Scantelbury (op.cit.) at page 40
21 The second kind of nuisance involving physical damage to a neighbour’s land and building is generally caused by human activities; for example, a defendant allows a drain that is laid on his land to become blocked and water overflows; or dilapidated buildings fall onto the neighbour’s land.
22 The third kind of nuisance arises where there is excessive use by a defendant of his land, resulting in an unreasonable interference with the enjoyment by the plaintiff of his land. Such nuisances involves, for example, noise, dust or perhaps offensive odours and stenches emanating from the defendant’s property.[17]
[17] See Robson (op.cit.) generally at paragraphs 84-90
23 In relation to the application of the tort of negligence to tree root cases, a claimant must prove:
(a) the defendant owed the claimant a duty, recognised by law, requiring the defendant to adhere to a certain standard of conduct; (b) the defendant breached that duty; (c) the claimant suffered a loss; (d) the loss was caused by the defendant’s breach of duty; and (e) the loss suffered by the plaintiff was not too remote; that is to say, the injury complained of was not only caused by the alleged negligence, but was also an injury of a class or character which was reasonably foreseeable as a result of the possible negligent act or omission.[18] [18] See Robson (op.cit.) at paragraph 93
24 Expanding on each of these elements of the tort, the following matters should be noted:
•
There is no issue that the relationship between the owners or occupiers of neighbouring properties is a category which the common law imposes a duty of care on each neighbour in relation to the other neighbour.[19]
•
In relation to breach of duty, the stated principle espoused by Mason J in Wyong Shire Council v Shirt[20] is apposite. His Honour states:
[19] See Robson (op.cit.) at paragraph 96; Vairy v Wyong Shire Council (2005) 223 CLR 422
[20] (1980) 146 CLR 40 at pages 47-48
“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.”
25 The torts of private nuisance and negligence are very similar, and a common element to both torts is that it must be established that a cause of any loss was the nuisance and/or negligence. Of course, the issue of causation is a question of fact to be resolved as a matter of commonsense and experience.[21]
[21] See March v E & M H Stramare Pty Limited (1991) 171 CLR 506, at 515 (Mason CJ), 522-3 (Deane J), and 524 (Toohey J); Curmi v McLennan [1994] 1 VR 513
26 It is also probably convenient to enunciate the relevant legal principles in relation to the concept of res ipsa loquitur and when reasonable inferences can be drawn to establish nuisance and/or negligence against any defendant. Counsel for the plaintiff relies on the doctrine of res ipsa loquitur and also conceded candidly and appropriately that in establishing causation, some reasonable inferences would need to be made and in particular, a reasonable inference drawn that it was the defendant who either committed a nuisance or acted negligently in the poisoning claim.
Res Ipsa Loquitur
27 The scope and effect of the principle of res ipsa loquitur has been largely settled by a number of High Court decisions[22] which make clear that the principle is not a distinct substantive rule of law, but an application of an inferential reasoning process and that a plaintiff bears the onus of proof in negligence even when the principle is applicable.
[22] See Anchor Products Ltd v Hedges (1966) 115 CLR 493-500, per Windeyer J; Piening v Wanless (1968) 117 CLR 498, at pages 506-508, per Barwick CJ; Government Insurance Office (NSW) v
28 Authorities such as Piening v Wanless23 and Anchor Products Ltd v Hedges24 make clear that a plaintiff may rely on the principle of res ipsa loquitur even where there is pleaded particular acts or omissions and negligence on the part of the defendant, provided that the tribunal of fact concludes that:
(a)
there is an “absence of explanation” of the occurrence that caused the injury;
(b)
the occurrence was of such a kind that it does not ordinarily occur without negligence; and
(c)
the instrument or agency that caused the injury was under the control of the defendant.
Inferences
29 In relation to the operation of inferences, it perhaps should be noted initially that when consideration is given as to whether an inference can be drawn, it is the totality of the evidence which must be considered.25 I refer to Transport Industries Insurance Co Ltd v Longmuir,26 a decision of the Victorian Court of Appeal wherein Tadgell JA stated:27
“… That aside, it should be said that, to assess the evidence in a case like this by reference to various individually-pleaded particulars, as though running through items on a check list, is apt to mislead. The evidence is to be evaluated as a whole in order fairly to consider whether the party bearing the onus of proof has established what is ultimately sought to be proved. The object of the exercise of evaluation is to discover whether the evidence paints a picture reflecting real life, rather than to place a tick or a cross against paragraph after paragraph
Fredrichberg (1968) 118 CLR 403, at pages 413-14, per Barwick CJ.
Piening v Wanless (op.cit.)
Anchor Products Ltd v Hedges (op.cit)
See Hardchrome Engineering Pty Ltd v Kambrook Distributing Pty Ltd [2000] VSC 359, at paragraphs 173-174
[1997] 1 VR 125
Transport Industries Insurance Co Ltd v Longmuir (op.cit.) at page 141
of torpid pleading. A true picture is to be derived from an accumulation of detail. The overall effect of the detailed picture can sometimes be best appreciated by standing back and viewing it from a distance, making an informed, considered, qualitative appreciation of the whole. The overall effect of the detail is not necessarily the same as the sum total of the individual details. … .”
30 In a civil case, where there is no direct evidence of fact that a party bearing the onus of proof seeks to prove, it has been noted that “it is not possible to obtain entire satisfaction as to the true state of affairs”.[28] However, the law does not require proof to the “entire satisfaction” of the tribunal of fact. I refer to the unreported High Court case of Bradshaw v McEwans Pty Ltd[29] (delivered 27 April 1951) wherein a definition of the sufficiency of circumstantial evidence in a civil case to support proof by inference from the directly proved facts was given and in particular, the Court stated:
“Of course as far as logical consistency goes many hypotheses may be put which the evidence does not exclude positively. But this is a civil and not a criminal case. We are concerned with probabilities, not with possibilities. The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence, while in the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture. … But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise. … .”
[28] Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155 at page 169, per Mason J
[29] (1951) 217 ALR 1
31 The passage in Bradshaw has been repeatedly adopted by the High Court in Luxton v Vines;[30] Holloway v McFeeters;[31] Jones v Dunkel[32]and Girlock (Sales) Pty Ltd v Hurrell.[33]
[30] (1952) 85 CLR 352, at 358
[31] (1956) 94 CLR 470, at 480-81
[32] (1959) 101 CLR 298, at 304-305
[33] (op.cit.) at pages 161 and 168
32 I also refer to Dahl v Grice[34] where Gobbo J referred to the question of causation in a personal injuries matter and gave some direction as to the approach of a tribunal of fact to the issue of causation. He stated:
“The review of the authorities leads me to reject the appellants' argument that in matters of bodily health, even outside common experience, it is incumbent on a plaintiff to prove the causal connection to the requisite degree of probability by evidence from the expert. It is plain that in such matters the courts have recognized that a possible cause may be elevated to a probable cause. … .”
The Disposition of the Claims
[34] (1981) VR 513, at 512
33 First, I intend to determine whether the defendant has a liability in relation to the tree encroachment claim and if so, then assess the quantum of damages. Secondly, I intend to determine whether the defendant has a liability in relation to the poisoning claim and if so, then assess the quantum of damages.
Evidence of the Plaintiff
34 The plaintiff gave evidence that she was raised in East St Kilda and went to a seminary at the age of twenty or twenty-one and became an ordained priest at about the age of twenty-four. She described herself as a Catholic priest in the Celtic tradition of the Anglican Church.
35 After being ordained a priest, the plaintiff worked in a couple of Victorian parishes for a few years, after which she went overseas and performed work in the United Kingdom, Germany, and later in Malacca and Singapore. She returned to Australia in 1970 and worked in the Bellarine Parish and later at the Burnley Parish, until 1981, when she retired from chaplaincy responsibilities.
36 She gave evidence that she had been “a botanist” for the past quarter century”.[35] She conceded that she had no formal training or qualifications in botany. Her interest in botany and in particular, water plants, commenced on her retirement in 1981.
[35] T 143, L28-29
37 Over the years from the purchase of her property she acquired, up until the mid-1990s, water plants and in particular, water lilies, for which the Latin name is Nymphaea.[36] Over the years from purchasing the property in 1981, she has grown water lilies and also has hybridized water lilies in what she alleges to be an organic environment.
[36] T 157, L17-18
38 When asked for more detail of being a botanist for the last quarter century, she stated:[37]
“1981, when I set up home with my mother, I very quickly discovered a vacuum that there was little done for the people of Australia in maintaining rare and precious water plants, particularly water lilies. Dr Roger Spencer’s predecessor, Peter Lumley, encouraged me to go further into that and one thing leads to another. It is not a hobby; it is something you’re doing hopefully for the people of Australia down the years … .”
[37] T 114, L14-22
39 She became involved with the Ornamental Plant Collections Association which is associated with the National Herbarium which is now controlled by Dr Roger Spencer.
40 She believes that she started selling some of her plants in about 1985 and that continued until about 1995 when she went “entirely mail order”.[38] She explained that up to 1995 she would pot plants and deliver them to garden centres and after 1995 someone would knock on her door and purchase direct, after making contact with her by phone or letter.
[38] T 152, L23-24
41 She initially traded under her own name but later established a business name known as “Neriad”, which was a play on her own name, and the neriads which apparently were water lilies in ancient mythology. Any plants sold were either species or hybrids but not hybrids created by her save for one or two exceptions.
42 The plaintiff also explained that when she and her mother moved to the plaintiff’s property, her mother had a desire for a garden pond which was filled with goldfish which developed into hybridizing top quality fish. The fish also gave protection from mosquito larvae.
43 The plaintiff gave much evidence about a dispute between her and the defendant in relation to the replacement of the common fence between the two properties. The fence was ultimately replaced in 2008 and for at least ten years prior to that there had been disputation between the parties regarding, amongst other things, the replacement of the fence.
44 The plaintiff gave evidence that in about 1993, an acacia tree in the defendant’s property collapsed across the rear of the fence, snapping the post, causing the fence to fall into disrepair.
45 When asked to recall what other significant trees were on the defendant’s property in or about the mid-1990s, the plaintiff gave the following evidence:[39]
[39] T181, L16 – L182, L12
“He had a large Cape Virgilia, he had two Grevillea Robustas, that’s a silky oak, one near his front gate, one near where my gold creeper is growing or a little below that. The Cape Virgilia was very near the north- west corner of my house. Further over he had two eucalypts growing at the side of his house which he took out about 2002 some time. He also had a Tasmanian blue gum growing up near the street which I was frightened would cause damage to my driveway but he took it out before anything happened. I think it got too big for him even. He had a blackwood wattle at the rear of his property, the other side which he took out for some reason, I think it was dropping litter into the swimming pool at the house behind it. These are the principal trees.”
Q: You mentioned a number of trees having been removed by or at the behest of Mr Berndt from his property, prior to April 2002 which of those trees have been removed?--- A: He removed the two Grevillea Robustas and the Tasmanian blue
gum. Only one of those was posing a threat to my side paving.Q: Can you say what distance there was between each of those trees
and your fence as at the time they were removed?---A: The silky oak that would have been no less than a metre from the fence, the Cape Virgilia would have been, I think, just slightly over a metre from the fence, … “
46 The plaintiff referred to and identified various photographs in support of her claims. Most of these photographs were contained in her Court Book.[40] In particular, she referred to the following photographs:
[40] See “Volume 1” of Photographs, pages 507-527 PCB; “Volume 2” of Photographs, pages 528-536 PCB; “Volume 3” of Photographs, pages 537-549 PCB; “Volume 4” of Photographs, pages 550-554
(a)
Photograph taken in early 1982 showing the rear of the plaintiff’s property;41
(b)
Photograph taken in 1987 looking west at the rear of the plaintiff’s property showing the various aquatic tanks;42
(c)
Photographs taken in the period from November 2000 but prior to September 2002 showing the Cape Virgilia behind the tropical house in the defendant’s property;43
(d)
Photograph looking north along the western boundary of the plaintiff’s property showing the Cape Virgilia and existing Pittosporums;44
(e)
Photograph taken in July 1998 showing the Cape Virgilia hanging over the tropical house, together with the mirror bush and boobialla;45
(f)
Photograph taken 27 October 1998 showing ivy on the fibreglass of the tropical house;46
(g)
Photograph taken 3 December 2001 from the east of the plaintiff’s property looking west showing encroachment of the mirror bush and boobialla;47
(h)
Photograph taken 19 November 2001 showing overhanging foliage at and around the tropical house;48
(i) Photograph taken 4 April 2005 showing ivy infesting the inside of the
PCB; “Volume 5” of Photographs, pages 628-637 PCB – referred to as Exhibit 7
Top photograph on page 509 PCB
Second photograph on page 509 PCB
Photographs 1 and 2 at page 510 PCB
Top photograph on page 511 PCB
Top photograph on page 512 PCB
Top photograph on page 513 PCB
Top photograph on page 514 PCB
Photographs at page 515 PCB
tropical house;[49]
[49]
[50] Photograph at page 516 PCB
[51] Top photograph at page 517 PCB
(j) Photograph taken 3 December 2001 showing ivy growing over the tropical house and the storage shed;[50] (k) Photograph taken 17 December 2001 looking at the plaintiff’s property from the north-west corner showing overhanging foliage from the boobialla and mirror bush;[51] 47 The plaintiff gave evidence that she essentially blamed the Cape Virgilia as one of the “major causes” of root damage to her premises and property.[52]
[52] See bottom photograph at page 517 PCB
48 The plaintiff denied ever growing ivy in her property.[53] Furthermore, she gave evidence that she tried to cut off as much ivy as she could coming from the defendant’s property, “but there’s a limit to what you can do when you have to reach over an aquatic tank”.[54]
[53] T 189, L2-5
[54]49 The plaintiff gave evidence that much of the foliage was removed and cleared in April 2002 when Peter James performed some tree cutting work in the defendant’s property. Furthermore, the plaintiff gave evidence that the Cape Virgilia was cut down to stump some time in very late 2002 or 2003.[55] Also, the two eucalypts adjoining the defendant’s house were cut down in mid-2002 and the silky oak near her carport was removed in 1998 (she thinks). The foliage from the boobialla and mirror bush commenced to hang over into the plaintiff’s property in about 2000.[56]
[55] T 194, L15-20
[56] T 215, L5-7
50 The plaintiff referred to and identified various photographs in support of the damage which she asserts resulted from the tree root encroachment and the ivy encroachment. In particular, she referred to the following photographs:
(a)
Photograph taken on 9 March 2001 of the door on the northern end of her premises entering into her lounge room which “would not shut properly” and which had to have “timbers planed at the top”;[57]
(b)
Photograph taken 1 December 2001 of the latch plate of the northern door from the lounge room which had to be “chiselled out to allow it to be moved up and down”.[58]
[57] Photograph at 518 PCB, see also T 215 at L11-14
[58] Photograph at 518 PCB and T 215, L26-30
51 The plaintiff gave evidence that she first had to move the door latch in early 2000 and it was over a gradual period of time that the door began to stick.[59]
[59] See T 215, L1 – T 216, L10
52 The plaintiff also referred to the following photographs:
(a)
Photographs depicting the inside of the sitting-lounge room showing bowing in the wall where the plaster over the galvanised clouts has popped off.[60] The plaintiff also said that she has knocked on the wall where the plasterboard has bowed and it seems solid behind the bowed plasterboard;[61]
(b)
The plaintiff referred to photographs of what she calls her “breakfast room”, which is on the east side of the premises and according to her, revealed no damage;
(c)
The plaintiff first started noticing unevening in the paving on the western side of her premises in about 1999-2000.[62] The pathway had been originally laid by the plaintiff in the first few months after the property had been purchased. She referred to a photograph[63] and described that roots were taken from where the steps come down from the deck at the rear of the premises. The plaintiff also referred to a further photograph of the deck which revealed a gap in the balustrade which she first noticed in or about 2000 also;[64]
(d)
The plaintiff also referred to some photographs taken in or around mid- April 2002 looking from the eastern side of her property to her western rear boundary. According to the plaintiff, such photographs show the mirror bush and yellow melaleucas prior to the arrival of the Peter James Tree Removal Services.[65]
(e)
The plaintiff gave evidence that even after the tree cutting by Peter James, the ivy still remained[66] and was eventually removed to a “large extent” in about 2005 or 2006.[67] She presumes that the defendant removed the ivy (but does not know).
[60] Photographs at 519 PCB
[61] T 217, L15-21
[62] In particular, the pavers adjacent to the tropical house were lifted and tree roots were taken out – T 220, L4-12
[63] Photograph 13 at 521 PCB
[64] Photograph 14 at page 521 PCB
[65] Photographs at page 529 PCB
[66] T 226, L13-14
[67] T 227, L12-17
53 The plaintiff gave evidence that over the period from about 2002 up until the ivy was removed, it continued to grow, and when asked whether she did anything about it, she answered:
“It was beyond me to reach it, I had no access.”[68]
[68] T 227, L25-26
54 The plaintiff also referred to the following photographs:
(a)
Photographs taken between 2000 and 2006 showing pavement which is said to have subsided and the floor of the tropical house which was said to have been sinking due to tree roots rotting after the Cape Virgilia was removed;[69]
(b)
Photograph taken on 18 December 2006 from a stepladder situated on the plaintiff’s property looking south along the boundary line between the two properties showing the maidenhair creeper infestation on both sides of the trellis;[70]
(c)
Photograph taken on 6 February 2007 from the deck of the plaintiff’s premises looking north-west showing infestation of sweet jasmine.[71] The plaintiff asserted that the jasmine was causing root problems and runner problems;[72]
(d)
Photograph taken on 1 November 2008 showing a “Y” root in the brick path on the western side of the plaintiff’s property just down from the steps from the deck attached to the premises.[73]
[69] Photographs at page 547 PCB; T 250, L11-31
[70] Photograph 1, page 551 PCB; T 266, L7-14
[71] Photograph 2, page 551 PCB; T 266, L25-31
[72] T 267, L6-8
[73] See top left-hand photograph at page 636 PCB; T 281, L13 – T 282, L14
55 When asked about making complaints to the defendant in relation to the tree root encroachment claim, the plaintiff gave the following evidence:[74]
[74] T 296, L6 – T 297, L19
COUNSEL:
“Q:
Ms Marshall, I want to take you back now to your tree root and tree encroachment claim. Did you ever complain to Mr Berndt about your concerns relating to that?---
A: On many occasions. Q: What’s the earliest time which you complained to him?--- A:
I think in the 1980s there was some trouble with the pavement and he promised to rectify it then. When the big problem started it goes back to the correspondence which had been tabled in documents for discovery.
Q: When you say ‘big problems’, what do you mean and when did
you first see these occurring?---A: That is the house, I would say 1996 probably was the starting date
of becoming concerned.Q:
Prior to that time and in the context of complaints you say you made to Mr Berndt, did he do anything about trees or tree roots to your knowledge that you saw?---
A:
He removed – the previous time after he removed both his Grevillea Robustas, one near my carport, the other near his front gate.”
HIS HONOUR:
“Q: I don’t understand when you say ‘the time after that’?--- A: That was the 1980s complaint which was the date when A & R
Tree Surgeons tendered evidence.Q:
As I understand your evidence, you are telling the Court that some time in the 1980s you made contact with the defendant about the tree root problems?---
A: Yes, your Honour. Q: And then I think you are being asked, did something occur as a
result of that contact?---A:
As far as I am aware he removed two silky oaks, that’s the common name for Grevillea Robusta, one near my carport, the other near his front gate.
Q:
What prompted you at that time in the ‘80s, what problems did you observe as far as you were concerned which caused you to contact your neighbour?---
A: The report I had from the A & R Tree Surgeons. Q: But what made you go to the A & R Tree Surgeons?--- A: I was advised by the nursery trade if I wanted good advice, what
was the cause, I should contact Mr Archer.Q: What made you go to people?--- A: Some of our new path was being pushed up and out of order. Q: And that’s when you went ultimately to those people and then you
contacted your neighbour?---A: Yes, your Honour. Q:
So I just want to be clear about this, the problem as observed which resulted in you contacting your neighbour was the brick path which was seen to be displaced?---
A: Yes, your Honour. Q: But what you told me is, as a result of the contact from what you
observed at least there were two silky oaks removed?---A: Yes, your Honour. Q: But towards the front of the property?--- A: Yes, your Honour. Q: So prior to that was anything removed near the pathway which
was disrupted?---A: No, your Honour.”
56 The plaintiff identified correspondence exchanged between her and the defendant. Such correspondence included:
(a) Letter dated 31 July 1998 from the plaintiff to the defendant,[75] wherein it is stated, in part: [75] Exhibit 8, at page 470 PCB
“As you are aware, the trespass of your plants onto our property has been a cause of concern for many years, and so you will appreciate I rely on that during the past year you have made little, if any attempt(s) to control same in any manner … .”
When queried about the words “as you are aware”, the plaintiff gave evidence that she gave the defendant an earlier report from A & R Tree Surgeons and there had been on and off complaints about ivy encroachment over the fence.[76] Within twelve months of receipt of that report, the plaintiff asserts that the defendant removed the two silky oaks.[77]
The plaintiff asserts that she wrote the letter because she was noticing
problems with her premises. She described these problems as:[78]“The problems with the north door of the sitting room, the cornices spring out from their fixings, the door had to be shaved at the top, the latch plate being dealt with, the bottom of the door letting in rainwater despite the fixings there. The window wouldn’t open, it wouldn’t shut during the summer. The steps of the deck were stringy because the ground had sunk underneath them.”
The plaintiff gave evidence that over the period from 1986 to 1998, the
“biggest problem” was the Cape Virgilia;[79]
[76] T 298, L5-21
[77] T 302, L9
[78] T 302, L27 – L 303, L4
[79] T 303, L11-12
(b)
A letter from the defendant to the plaintiff dated 24 August 1998 said to be a “Service of Notice to Fence;”[80]
(c)
A letter from the plaintiff to the defendant dated 8 September 1998[81] wherein issues are raised about the construction of the fence and the “trespass of limbs, foliage and other forms of intrusion”;
(d)
A letter from the plaintiff to the defendant dated 16 October 1998.[82] Such letter raised issues in relation to the fence and “trespass of limbs, foliage or other matters”;
(e)
A letter from the plaintiff to the defendant dated 16 November 2000.[83] Such letter asserts that the defendant had made “no effort” to control plant foliage;
(f)
A letter from the plaintiff to the defendant dated 23 November 2000.[84] Such letter is headed “Notice Re Plant Nuisance and Property Damage”.
[80] Exhibit 8, at page 471 PCB
[81] Exhibit 8, at page 473 PCB
[82] Exhibit 8, at page 474 PCB
[83] Exhibit 8, at page 475 PCB
[84] Exhibit 8, at page 476 PCB
57 The plaintiff gave evidence that she became “acutely worried late in 2002”[85] when she commenced to observe the loss of various plants. Also, over the period from 2002 or 2003 up to the construction of the fence in 2008, the plaintiff gave evidence that she was regularly losing goldfish. Initially, the plaintiff asserted that she was losing fifty fish a month over the years from 2003 to 2008.[86]
[85] T 170, L25
[86] T 178, L20-25. See also T 941-943 when the plaintiff attempted to clarify this position.
58 The plaintiff again referred to and identified various photographs in support of the poisoning claim:
(a)
Photograph taken on 5 August 2005 looking across to the western side of the plaintiff’s property, including the tropical house and revealing a large stem of dead ivy and two dead Boobiallas;[87]
(b)
Photographs dated 27 April 2002 depicting “very sick water lilies”.[88] In particular, the plaintiff described “yellowing and browning of leaves” which means they have been “burned” by some substance.[89] The plaintiff described the state of health of other water lilies away from the western boundary to be “healthy”;
(c)
Photographs taken on 13 September 2002 depicting “sludge” and the remnants of plants;[90]
(d)
Photograph taken on 14 November 2005 depicting the flowers of the water lilies not “opening properly” together with a whitish green sludge across the top. The tanks depicted in the photograph are immediately behind the tropical house;[91]
(e)
Photograph taken on 18 December 2006 along the dividing fence between the properties of the plaintiff and the defendant showing dead grass in the defendant’s property;[92]
(f)
Photograph taken 13 January 2006 depicting an area on the western side of the plaintiff’s property down from her front fence towards her carport which she used as a vegetable garden. On 13 January 2006, the plaintiff ate some vegetables from this area and was “violently ill”;[93]
(g)
Photograph taken on 24 August 2008 depicting south-west front corner of the plaintiff’s property – an area in which the plaintiff noticed that “nothing” grew (from about 2007 to 2008);[94]
(h)
Photograph taken on 24 August 2009 depicting the chemist, Mr Marone, obtaining a soil sample;[95]
(i)
Photographs taken in or about October 2008 depicting grass outside the defendant’s property which has “died”.[96]
[87] Photograph on page 583 PCB; T 228, L2-20
[88] Photograph on page 539 PCB; T 232, L30 – T 233, L5
[89] T 233, L26-28
[90] Photograph at page 540 PCB; T 235, L23-25
[91] Photographs at page 542 PCB; T 240, L18-29
[92] Photograph at page 551 PCB; T 267
[93] See top photograph at page 553 PCB; T 267, L27 – T 268, L15
[94] Top right-hand photograph at page 630 PCB; T 270, L31 – T 271, L8
[95] Bottom right-hand corner photograph at 632 PCB
[96] Photograph on right-hand side at page 633 PCB; T 278, L23-26
59 The plaintiff gave evidence that from about late 2008 things have returned to “normal” in relation to the breeding and growing of her water lilies and the use of the fish in the tanks.[97]
[97] See T 242, L17-24
60 In relation to the poisoning claim, the plaintiff gave this evidence:
HIS HONOUR:
“Q: What were you concerned about Mr Berndt doing to you or your
property back in August 2000 or November 2005?---A:
We wanted a restraining order for him to keep away from – allowing anything to come over the property line onto my property.
Q:
So you had formed a view as at November 2005 as the cause of – as you saw it in the previous photograph, affected plants or ill plants and films or early films on your water, had you formed a view about the cause of that?---
A: Yes. Q: What do you think it was then?--- A: That someone was pouring herbicides around. Q: Why did you think herbicides?--- A: Well they’re commonly called weedkillers or sterilisers as some
call them and they kill plants.Q:
I am just not clear about this. I can understand you’re confronted with obviously plants which you give the impression of the evidence listened to today and enjoyed very much over the years. Now obviously it is something which is, as you said to me this morning, more than a hobby, but you’re confronted with this situation which must have been very disturbing to you, if what you tell me is correct. Why did you think Mr Berndt was the cause of it?---
A: I couldn’t see any other person who could be the cause, your
Honour.Q:
Yes, and – although I don’t want to go into this overly, but at the time that this problem arose, you came to the view that there was a fresh poisoning of your fish and the damaging of your plants, and at that point when that problem started to arise, had there been bad blood between you and Mr Berndt prior to that?---
A:
He was someone I didn’t wish to have anything to do with. I don’t dislike him, I didn’t hate him, I just didn’t want anything to do with him.”[98]
[98] T 243, L21 – T 244, L22
61 The plaintiff gave evidence of engaging various experts, including Mr Perry Setford, a building expert; Mr Carlin-Smith, an engineer; Mr Lewis, an arborist; Mr B Kenyon, an arborist; Mr D’Cruz, a quantity surveyor; Mr V Marone, a consulting chemist; and a forensic accountant, Mr Jones.
62 The plaintiff gave evidence that after increasing concerns about the poisoning of her plants and fish, she took two soil samples from the front western side of her property in or about February 2007 in order for them to be tested by the Department of Primary Industries. The plaintiff received a report from the Department of Primary Industries dated 21 February 2007, after which the plaintiff engaged the services of the chemist, Mr Marone.[99]
[99] Department of Primary Industries’ report dated 21 February 2007, at pages 504-506 of the PCB was admitted into evidence for identity purposes and marked as Exhibit 11
63 The plaintiff gave evidence that she was asked by Dr Roger Spencer to contribute the whole section on water plants, and in particular, water lilies for his book “Flora of South-East Australia”.[100]
[100] T 522
64 Counsel for the plaintiff directed the plaintiff to a document at pages 325 to 326 of the defendant’s Court Book.[101] I refer to evidence given by the plaintiff in relation to that document:
[101] Exhibit 15 – document headed “Horticultural Practice” located at pages 325-326 DCB
COUNSEL:
“Q: Are you able to tell the Court when you produced this document?--- A: No, your Honour, no, no no. Q: Are you able to tell his Honour for what purposes you produced
the document?---A:
It would have been a request from someone, I think, concerning the pesticides released on the fence and over the fence onto my land from a pest control company.
Q: In relation to which property or neighbour did that concern? A: That concerned 19 Eric Avenue. Q: Who occupied that property at this time?--- A: A Mrs Nellie Spence.”[102] [102] T 523, L20-29
65 Later, the following evidence was given:
“Q: I think the question was, over what timeframe was there a dispute between yourself and Ms Spence in relation to the Flick Pest Control spray issue?--- A: There was a dispute when that occurred. She would not divulge
who did it.Q: When did it occur?--- A: I think 1991 from memory. She was not a good neighbour from
before that.Q: Now turn your attention to this document, the first page at 325 and the section on the left-hand side headed ‘Control’ just before halfway?--- A: Yes. Q: It speaks of ants and then that’s (a), (b) European wasps and ants: Baygon dust (Bayer) and (c) garden snails: Baysol and (Bayer) in very limited amounts?--- A: Yes. Q: What do you say about the use of these products from your
property?---A: Concerning (b), that was the time European wasps crossed the Tasman and became a very big nuisance. I had one little knot hole outside the study wall where they started making a nest. The Government authority advising on this to the citizens of Victoria as it was a big issue at the time, recommended everyone buy Baygon dust and puff that into the hole, resulting in the wasps coming in and out, getting it on their bodies, taking it into the nest and killing them. Q: To which part of your property was that applied?--- A: That was the outside wall of the little study at the front. … .”[103] [103] T 525, L21 – T 526, L7
66 The plaintiff also gave evidence that her late mother used Baysol to control snails around her orchids which is on the eastern side at the front of the plaintiff’s property. The plaintiff also said that her mother used Osmocote on her orchids.
67 The plaintiff was cross-examined extensively over a number of days in relation to a variety of issues, many of which were sought to undermine her credibility and/or reliability as a witness. I refer to various salient matters:
(a)
Her property and the defendant’s property are about 130 feet deep and 60 feet wide;[104]
(b)
Between 1982 and 1987, the plaintiff introduced many aquatic tanks into her backyard to pursue her interest in water plants and to a lesser extent fish;[105]
(c)
The plaintiff was directed to photographs at 287.02 of the defendant’s Court Book and rejected the suggestion that a large tree was situated on her property rather than that of the defendant;[106]
(d)
The tropical house was the previous owner’s “pergola”. The plaintiff describes that it consists of some vertical timber uprights with a roof consisting of fibreglass to allow sunlight to come through. The plaintiff made various alterations to the roof by way of an electric saw;[107]
(e)
The plaintiff was taken to a letter from Dr Rana dated July 1993 wherein he certifies the plaintiff to be suffering from “symptoms of organophosphate or carbonate insecticide poisoning since 1991”.[108] The plaintiff gave evidence that her symptoms commenced in 1991 when spraying occurred at the premises occupied by Mrs Spence at 19 Eric Avenue, Lower Templestowe.[109] The plaintiff gave evidence that through her enquiries she established that the Flick company sprayed down the boundary fence on the eastern side of her property bordering the property of Mrs Spence. The plaintiff was ultimately informed that the spraying involved Fenthion and various forms of DDT.[110] The plaintiff also gave evidence that there was heavy damage to plants and fish, limited to a metre to two metres inside the eastern boundary of the plaintiff’s property. The plaintiff also gave this evidence in relation to the use of chemicals along the eastern boundary of her property:
[104] T 567, L26-29
[105] T 569, L13-20
[106] T 572 – T 574
[107] T 579 - 580
[108] T 584, L9-14
[109] T 584, L21-24
[110] T 586, L7-17
“Q: When did you first become aware that the Spences had engaged the Flick people to put the chemicals out about the ants?---
A: When I saw this oily film all over the tanks along that side. Q: What made you think that had anything to do with the
Spences?---
A: Only when I was told it was not kerosene but pesticide. Q: But even then, what made you think it was the Spences?--- A: Because it was along that strip, your Honour. Q: When did you actually find out that the Flick people had attended and done some work there. Is that just the first time in that letter dated 27 September 1994, can you?--- A: We requested divulgence of what had occurred. He said it
was none of my business.Q: Did Mrs Spence say that to you?--- A: Yes, I said, ‘what is your business, is your business what affects me is my business. She gave us red herrings, eventually we narrowed it down and Flick themselves said they had been the perpetrator. That’s why the Flick document is dated 1994.”[111] [111] T 590, L7-27; See also Exhibit D, letter from W A Flick & Co Pty Ltd to the plaintiff dated 27September 1994, contained at page 315 DCB
The plaintiff was taken to various documents which were part of her investigation as to the type and effects of various chemicals used by W A Flick & Co Pty Ltd.[112]
[112] For example, Exhibit H – letter from the plaintiff to Dr John French, Senior Principal Research Chemist, dated 3 October 1994, and Exhibit J, documents headed ‘Documentation’ running from pages 321-324 DCB; Exhibit K, letter dated 16 January 1999 from the plaintiff to Marie Tehan, Minister for Health, at pages 103-105 DCB
68 After hearing argument and making a ruling, I permitted the defendant to tender a report from Environmental Consulting Pty Ltd dated July 1995, together with a sketch in relation to bore holes for testing.[113] I permitted such documents to be tendered for the purposes of identification on the basis that they could not be used as the truth of their contents. In general terms, that report involved an examination of mostly the eastern border of the plaintiff’s property to ascertain the presence or otherwise of chemicals resulting from the so-called “Flick” incident.
[113] Refer Exhibits P and Q
69 It was put to the plaintiff that the Cape Virgilia tree was removed in September 1998 by the defendant, rather than in late 2002 or 2003 as stated by the plaintiff. The plaintiff disputed such assertion and pointed out that photographs from at least November 2000 showed the Cape Virgilia tree still growing.[114]
[114] Refer T 816, L5 – T 817, L19
70 The plaintiff was cross-examined extensively about correspondence between the parties through their solicitors in respect to the construction of the new fence.[115] The plaintiff gave evidence that an agreement was reached between the parties after some mediation to proceed with the fence on certain terms. The plaintiff asserted that following one such agreement, she was to obtain quotes for the building of the fence.
[115] See Exhibit S – bundle of correspondence and attachments exchanged between plaintiff and defendant between 31 July 1998 and 23 November 2000 – inclusive at pages 470-476 PCB. (It would appear that this exhibit corresponds to Exhibit 8 tendered by the plaintiff); Exhibit T – bundle of two letters from Holding Redlich to Adams Maquire Seir dated 22 December 2008 and 18 January 2001 respectively at pages 287.07 – 287.10 DCB.)
71 The plaintiff was taken to various documents including the following:
(a)
Letter from Oakdale Plants and Design to the solicitors for the plaintiff dated 28 January 2004[116] wherein it is stated in part:
[116] Exhibit X – page 279 DCB
“After another brief discussion with your client, Ms Marshall, I have
been informed of the following:1. The neighbour at 15 Eric Avenue, Templestowe will not sign consent for spraying herbicide on his property …
This brings forth two problems. Firstly that it is not legal to spray a chemical soil sterilant onto anyone’s property without their consent. Using any chemical that is stronger would be in breach of EPA guidelines for domestic use. …”
When queried about such letter inferring that the plaintiff would accept the spraying of herbicide, the plaintiff ultimately stated:
“I would not have been comfortable, your Honour, but knowing the contractor I would be confident he would do it without causing any damage to myself or my property.”[117]
[117] T 823, L15-18
(b) A handwritten quotation from Bruce Raper of Warran Glen Nursery dated 22 May 2002.[118] Such documentation is a quotation for Hedera removal, wherein it is stated, in part: “Written permission from the neighbour, via your solicitor for access to his property is required to remove all hedera from western boundary, and clean up, and to remove and poison the roots on the northern boundary and clean up …”
The plaintiff denied that the western boundary referred to in such quotation was the west side of her property.
[118] Exhibit V – pages 274-275 DCB
(c)
Quotation from Dawson’s Pest & Weed Control dated 2 February 2004.[119] Such quotation is addressed to the plaintiff and relates to a quote for the removal of ivy. Although signed by the plaintiff on 2 February 2004, she asserted that such quotation was obtained at the behest of the defendant to perform work in his property. In any event, Dawson’s could not obtain access to the defendant’s property.
(d)
Quotation from Mr Patrick Kenyon of Tree Tactics dated 23 May 2002[120] wherein there is a quote to remove all ivy from 17 and 15 Eric Avenue. Again, the plaintiff maintained that the quotation was for the removal of ivy between 15 and 17 Eric Avenue.[121] Furthermore, although she contacted Mr Kenyon, it was effectively at the request of the defendant.
[119] Exhibit Y – page 280 DCB
[120] Exhibit W – page 277 DCB
[121] T 840, L18-21
72 The plaintiff was shown a discovered letter from her solicitors to Messrs Dibbs Barker Gosling dated 2 July 2003, to which was annexed a typed document of Neriad to Bruce Raper dated 1 July 2003.[122] The plaintiff accepted that it was her signature at the bottom of such document which stated in part the instructions to Raper were to: “to sterilise area adjacent to property line for a total length and to extend 20 centimetres each side thereof”.
[122] See Exhibit Z
73 When queried about the die back of her plants that she said that she had observed from at least April 2005, the plaintiff stated this, in part:
“Q:
Can I ask you this though, Ms Marshall. I don’t understand it at this stage at least. On one hand as I understand it, you tell the Court from about April 2002 and one is never completely precise about these things, but at or around that time you’d noticed plants on your western boundary in an unhealthy state?---
A: Looking stressed, Your Honour. Q:
Looking stressed. And indeed as the year unfolds you also noticed fish were unhealthy and maybe even dead towards the end of the year?---
A:
At various times. The fish would be over a period. The plants would go dormant for the winter and instead of coming back in spring they didn’t come back.
Q: And in fact what you are describing is those plants running down
your side of the fence adjoining the defendant?---A: Yes, your Honour. Q: The area which you talk about being sterilised is about 20
centimetres on either side of the fence?---A: Yes, your Honour. Q: And I think you agree, that conversation or that general discussion
involvement of other people seemingly is about July 2003?---A: If that is the day on that document, that’s correct. Q: And also we had some earlier documents in 2002?--- A: Yes, your Honour. Q:
Did you have a concern with your observations about the state of the plants and/or the fish over 2002 with the suggestion that there was going to be sterilisation 20 centimetres on either side of the fence?---
A:
I assumed that the sensible person would do it in such a manner as not to cause damage to my property. They then leave themselves open for me to sue them, wouldn’t they?”[123]
[123] See T 856, L10 – T 857, L10
74 The plaintiff was cross-examined in relation to a complaint issued in the Magistrates’ Court seeking a restraining order to prevent further property damage as a result of the defendant’s actions. In particular, the plaintiff alleged:
“The defendant has used chemicals on his property which have caused
damage to my plants.”[124]
[124] See Exhibit AA Magistrates’ Court complaint for an intervention order dated 3 May 2007 - pages 107- 111 DCB
The plaintiff was asked questions about the substance of such allegation and gave the following evidence:
“Q You had never seen him use chemicals, had you? Had you?--- A: No, but when I was warned something was happening he was
disappearing as I was coming outside to investigate.Q: What are you talking about when you - - -?--- A: My Doberman would bark from inside and warn me something
was happening.… Q: Did you see any servant or agent or contractor on behalf of Mr
Berndt the defendant ever use chemicals on his property?---A: No.”[125] [125] See T 863, L9-31
75 The plaintiff was extensively cross-examined about the series of pleadings leading up to the present amended statement of claim. When various inconsistencies were suggested to her, the plaintiff essentially fell back on the argument that various counsel had misunderstood instructions.[126]
[126] See, for example, T 964, L15-16
76 The plaintiff accepted that she initially retained the chemist, Mr V Marone, on 5 August 2008 to:
“ … check if any of the contaminants from the east side had gone to the
west side”.[127]
[127] T 975, L22-23
The initial sample was taken approximately 3 metres within the boundary of the gated entrance to her property.
77 The plaintiff gave evidence that she did not have any samples of the contents of her tanks tested because she was advised it was “impractical”.[128]
[128] T 981, L33 – T 982, L13
78 The plaintiff accepted that she had initially engaged Mr P Setford to investigate any damage as a result of water discharges from the Spence property.[129]
[129] T 984, L15-16
79 When pressed as to when the poisoning of the western side of her premises was undertaken, the plaintiff gave this evidence:
“Q:
And it’s your allegation, is it, that from at least about that point … [25 April 2002] … for the next six years and a bit years to late 2008, for a few months after the fence had been put up, over that period of time there was continuous poisoning or infiltration of poison to your plants causing the damage you have described?---
A: Not continuous, there were spasmodic occasions reoccurring,
reoccurring and reoccurring.Q:
Are you able to give the court any idea as far as you’re concerned how often they were reoccurring, every three months, every six months, every year?---
A: It could have been three or four times a year but as I said when I
had been in the house ---Q:
So we [sic] say three or four times a year, and in between those times did the plants show some resurgence, some re-health, did they?---
A:
Some occasions when I immediately put the electric pump in and pumped the water out I managed to stop severe damage to the plants but on those occasions a month later all the area where I had pumped the water to went brown.
Q:
So am I right in saying that your case factually amounts to this, that you say that the period from about mid 2002 to late 2008 in general terms, three or four times a year there was the propagation of poison, insecticides or herbicides from Mr Berndt’s property?---
A: Yes, your Honour. Q: And so it was an ongoing thing in the sense it lasted over six and
a bit years but spasmodic in nature?---A: Yes, Your Honour. Q:
I understand your evidence the other day and correct me if I’m wrong about this, that you never saw Mr Berndt actually use herbicides or pesticides. Is that correct?---
A: Yes, your Honour. Q: And you never saw anyone who you understood to be his agent or
a contractor use them. Is that correct?---A: Yes. Q:
But what alerted your attention was when the dog barked and you came out and saw Mr Berndt, these are my words, not yours, acting furtively or something like that?---
A:
On occasions I did glance that there was evidence that something had occurred and I would then have to take remedial action in the hope of averting further damage.”[130]
[130] T 1062, L6 – T 1063, L15
Later, in relation to the role of her Doberman, the plaintiff gave evidence:
[131] T 1066, L3- 9
“Q: You’re not suggesting, though, in some way or are you, I’m not sure, in some way the dog conveyed to you that Mr Berndt was somehow distributing herbicides or pesticides?--- A: Something was occurring, I’m saying yes, the Doberman conveyed to me something was occurring that she thought should not occur and therefore I should investigate.”[131]
80 In relation to the damage to plants, the plaintiff also gave evidence in cross- examination that it was not only the aquatic tanks on her extreme western boundary of her property, but a second row of tanks on the eastern side of the path running down to the back of the property.[132] In relation to the second row of tanks, the plaintiff accepted that if the damage was related to the propagation of herbicides or insecticides from the defendant’s property, the chemicals would have got to the second row of tanks by “splashing or drifting”.[133]
[132] T 1074, L3-15
[133] T 1079, L11
81 The plaintiff was extensively cross-examined in relation to how she supplied information for the make up of the report for Mr Jones and indeed, the basis for saying which plants she lost as a result of the alleged poisoning from 2002 to 2008.
Evidence of Mr Perry Guy Setford
82 Mr Perry Guy Setford was called and gave evidence on behalf of the plaintiff. He described himself as a retired building consultant.
83 Presently, he is working part-time for Buildspect, building consultants, cleaning out the office of one of the directors of Coghlan Lorich Associates Pty Ltd (“Coghlan Lorich”) who recently died.
84 Mr Setford retired in August 2009 and for about fourteen years prior to that had been employed by Coghlan Lorich which later changed its name to Buildspect & Co Pty Ltd.
85 Mr Setford has no formal qualifications but was in the building industry for over thirty years and was involved with building disputes and rectifying problems with domestic buildings rather than commercial or industrial buildings. In particular, his expertise related to dampness problems and distressed buildings – that is buildings with movement.
86 He inspected the plaintiff’s property on 21 November 2000 at the request of the plaintiff. The purpose of the inspection was to assess and report on the damage to the plaintiff’s property “as a result of overhanging vegetation and the growth of vegetation into the subject property and vegetation growing from the adjoining property and to determine the reasonable costs to rectify the damage …”.
87 He adopted a report date stamped 21 November 2000 in respect to that inspection.[134] That report also contained a number of photographs taken by him on 21 November 2000.
[134] See Exhibit 30, with report date stamped 21 November 2000, at pages 300.3.1 – 300.3.11 PCB
88 His inspection revealed:
(a) Considerable overhanging of vegetation from plants that “appeared” to be growing from the defendant’s property (see Photograph 1); (b) That the plant adjacent to the south-west corner to the plaintiff’s property appeared to be a “Cape Broom” (see Photograph 2); (c) Massive vegetation overgrown from the defendant’s property (see Photograph 4), including jasmine, boobialla melaleuca and ivy (see Photographs 5 and 6). Such vegetation was estimated to be of an approximate height of 5 metres (see Photograph 7); (d) That the “tropical house” on the western boundary of the plaintiff’s property had significant growths of ivy visible (see Photographs 9 and 10). 89 Mr Setford considered that the overhanging vegetation would have damaged the fence and caused vast quantities of “leaf and vegetation matter” to enter the various tanks situated in the rear of the plaintiff’s property.
90 Mr Setford concluded that the plaintiff had “suffered loss due to the intrusion of the ivy and also from the dense overhanging vegetation from the adjoining property”.[135]
[135] See Exhibit 30, at page 300.3.4 PCB
91 At that time, Mr Setford made a document called a “Pricing Calculation” setting out the following calculations:[136]
[136] Page 300.3.11
PRICING CALCULATION
| OWNER/SITE | Marshall – 17 Eric Ave Lower Templestowe | Sheet No . 1 |
This pricing is based on the works to be done being carried out by a small competitive builder with access to the required trades, suppliers and subcontractors. Each item is priced independently using trade rates where appropriate, and otherwise with a cost of direct labour and material provided. A margin is added. The labour rate used is intended to cover not only the wages and oncosts of that labour, but also the supply and running costs of the tools generally required plus transport. A rate of $32.00 per hour has been used for the general trades, and $45.00 per hour for the licensed trades, e.g. electrician and plumber. $42.00 per hour has been allowed for painters with this figure to include material as well as labour. The margin added to each item is intended to cover preliminaries, overheads, supervision, contingencies and profit. A rate of 20% has been used generally. (All cost items are G.S.T. inclusive.)
$
L/M QUAN UNIT RATE B/F
Carefully (under supervision) remove
Aquatic plants from tanks inside the tropical
house and along the west boundary fence
& place plants into other tanks on the site. L 8 Hrs 32 $256
Allow to drain and move tanks and
temporarily store in carport. L 8 Hrs 32 $256 (all tanks along west boundary)
Allow to cover tanks (approx 1/3) in rear
yard with polythene to protect from debris
and sawdust during tree cutting process
and allow to remove & clean up after tree
cutting L 6 Hrs 32 $192 Polythene M 100 M2 75 $75
Allow to remove sections of tropical house
to enable ivy runners to be grubbed out.
Then reinstate sections. L 2 Hrs 32 $64
Excavate along western boundary fence and
remove ivy runners. Treat soil to
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| 6. |
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| 7. |
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Move tanks back to previous positions and
Reline plastic sheet tanks allow to refill L 8 Hrs 32 $256
Pond liners, sundries M Item $25
Allow to replant tanks with plants
Previously removed. L 6 Hrs 32 $192
Sub Total $2114 Margin 20% $423 Total $2537
92 Mr Setford carried out a further inspection of the plaintiff’s property at the request of the plaintiff on 5 March 2001. The purpose of that inspection was to assess and report on the probable cause of building movement in the north- west area of the plaintiff’s residence and brick paving movement on the western side of the plaintiff’s property.
93 Mr Setford prepared a report referred to as “Addendum to Report on Property at 17 Eric Avenue, Templestowe dated 29 November 2000” in respect to such further inspection.[137]
[137] See Exhibit 30 at pages 300.4.1 – 300.4.2 PCB
94 At this inspection, Mr Setford noted:
(a) That the north wall of the lounge room, which is on the western side of the premises, was of a timber glass construction and that the central door was found to be binding. He was also referred by the plaintiff to the lock plate which required an adjustment to enable the door to be locked and that signs of re-positioning of the lock plate were “obvious”; (b) The north wall of the lounge room appeared to have “dropped” and the wall movement has caused the door to bind as a result of the stumps supporting the walls moving downwards; (c) That an inspection of the sub-floor area found the original timber stumps to be still in place and although some deterioration appeared to have occurred, the stumps were considered to be in “reasonable condition”; (d) There was evidence of moisture in the sub-floor area along the eastern side of the building but the area below the north-west corner of the building appeared to be reasonably dry. 95 In such report, Mr Setford concluded:[138]
[138] See Exhibit 30 at pages 300.4.1 – 300.4.2 PCB
[245] T 1885, L21 – T 1886, L9
212 The defendant gave evidence that he cared for his mother from 19 November 2000 as his father had gone into a nursing home and ultimately died in 2002. His mother was admitted to a nursing home in December 2006, where he visited his mother six days a week, four hours a day, until 2009 when she died. He accepted that over that period that he only had time for a “quick cut” of any growth.[246]
[246] T 1891, L24-25
213 The defendant was shown a series of photographs said to be taken in 2007 showing a fair degree or greenery along what he referred to as the corridor on the eastern side of his property. The defendant had identified photographs both in 2002 and 2008 which he said gave a fair depiction of that corridor being reasonably clear of growth over that period. He was asked:
[247] T 1903, L11-17
Q:
Can I ask you this. Would the amount of greenery, as far as you are concerned, being there at any time between those photos in 2002 which you identified in your schedule and the photos which you now accept were taken at or around the time of the fence construction in May 2008, could it have been there during that period of time?---
A: I don’t believe so.”[247]
214 The defendant gave evidence that he never saw the plaintiff use anything like herbicides in her property.[248]
[248] T 1908, L21-23
215 The defendant was queried about the state of health of his various trees and plants in his property over the period from 2002 to 2008. He gave the following evidence:
“Q: Do you accept that what we see in the photograph of the state of
the vegetation, dead vegetation as at August 2005?---A: Yes, possibly. Q: What do you say is the cause of death of the Mirror Bush? Can
you speak to that?---A: I was going to mention that. I’ve lost seven trees in all in the last
three to five years.Q: Is that unusual for your garden?--- A:
It is unusual because of the drought. I didn’t water the Mirror Bushes and they can only last so long without rain so there were two Mirror Bushes on here which I put down to drought. There was another Mirror Bush on the other side of the house. That was a bottlebrush.
Q: Do you have any photos of the Mirror Bush on the other side of
the house?---A: It’s still there. The dead trunk. Q: But is it dead?--- A:
Totally dead. It was higher than the roof, and then next to that I have got the bottlebrush which is dead, then I had two Hakia bushes about six or eight feet from the front fence in the middle of that open area that is grass up there, and I had a Hakia – more like a tree that died on me on the north-western corner of the property about three feet from the house wall. Again I didn’t water it. There is another one next to it, that has remained but this one died. … .”[249]
[249] T 1914, L7-27
216 Furthermore, the defendant gave evidence that areas of his grass were dry and difficult to grow at all times since 1972.
Conclusions
[250] T 1831, L27
[251] T 1771, L1-8
(A) Some comments about the evidence 217
Counsel for the defendant submitted with some force that I should find the plaintiff to be a “wholly unreliable witness” whether as a consequence of dishonesty, delusion, reconstruction or innocent mistake. Counsel for the plaintiff submitted that when the evidence of the defendant was compared to that of the plaintiff, her evidence was far more reliable.
218
I had the advantage of observing the plaintiff give evidence over a number of days and the defendant give evidence over a couple of days.
219
I have formed the view that the plaintiff is a keenly intelligent woman with a seemingly remarkable memory for detail. Perhaps because of these faculties, her evidence was given in a very pedantic manner, and on many occasions she gave non-responsive answers to questions which she seemingly believed were prejudicial to her case.
220
Perhaps borne from her stated belief that she suffers some type of medical condition brought about by exposure to neurotoxins following the “Flick incident”, and the alleged poisoning of the plants by the defendant, she appeared to have an overwhelming desire to succeed in the claim.
221
I have also formed the view that she is a woman with a strong personality who has been very much involved in the preparation of her case and in particular, acutely involved in the preparation and formulation of opinions given by purported independent expert witnesses. I do not make any finding that any of the independent expert witnesses have consciously and/or intentionally given false evidence. However, I have approached their opinions with some caution.
222 In this respect, I refer to, for example, the following matters:
(a)
The evidence of Mr Setford that he was contacted by the plaintiff to effectively “embellish” his report in relation to damage sustained at the plaintiff’s property;
(b)
The evidence of Mr Carlin-Smith that he made various amendments to his report at the request of the plaintiff. Furthermore, the original arborist retained by Mr Carlin-Smith – a Mr Joe Kellett – was dismissed at the request of the plaintiff seemingly on the flimsy basis that Mr Kellett had mis-described the suburb in which the plaintiff lived;
(c)
The evidence of Mr D’Cruz wherein he candidly admitted that it would have been more appropriate to base at least some of his costings on the material supplied by the engineer (which he had available) rather than that set out in the scope of works made up and supplied by the plaintiff.
223
I have also come to the view that possibly as a result of her desire to succeed and her belief that she suffers from a chemical-related illness, the plaintiff has attempted to manipulate in a subtle and sometimes, not so subtle way, aspects of the evidence that she perceives to be either to her advantage or disadvantage.
224
Because of the foregoing, I do not accept her as a wholly reliable witness and accordingly, approach her evidence with great caution and have sought corroboration of her evidence from other sources.
225
I do accept that the plaintiff has gained much expertise since the early 1980s in water lilies and the hybridization of water lilies. The plaintiff clearly has a great love of such plants and was invited by Dr Spencer to contribute to his book. However, given her lack of any formal training, I do not accept that she is an expert botanist with any particular expertise in the understanding of herbicides, or the application of herbicides to various plants.
226
Although I tend to the view that the description by Dr Spencer of the plaintiff being an “enthusiastic amateur” may not do her justice, I do not accept that to the extent that the plaintiff has expertise in water lilies, such expertise is relevant to the fundamental issues between the parties.
227
Counsel for the plaintiff submitted that the evidence of the defendant was “consistently vague and uncertain”. It was further submitted that he appeared “for the most part to be trying to give a frank and accurate account … [but] … when challenged under cross-examination … [he] … fell further into inconsistency and resorted to baseless attacks on the plaintiff’s evidence”. Counsel for the defendant submitted that the evidence of the defendant reflected that he was an “honest, mild mannered man who endeavoured to give straight truthful answers throughout even when it might be detrimental to his case”.
228
I have formed the view that although the defendant was vague on occasions and sometimes a little inconsistent, he was essentially a witness of truth attempting to give an honest account of the events in question. I concluded that on occasion he gave evidence amounting to admissions against his interest – for example, his admission under cross-examination that he ignored the plaintiff’s complaints on occasion[250] and admitting that the roof barrier was not installed[251] - which reinforced my view that he was essentially a witness of truth.
229
I do find that there was animosity between the parties most probably from early days when solicitors became involved. Although much evidence was given of negotiations, agreements and actions taken in relation to the construction of the new fence, I do not make any findings as to whether one party or the other was more culpable in delaying the construction of the fence.
(B) Is the Defendant Liable in relation to the Tree Encroachment Claim? 230
I am satisfied that the defendant, with a view to shield sight of the aquatic tanks in the rear of the plaintiff’s property, planted trees and various shrubs on the eastern side of his premises. The Cape Virgilia was one such tree and on the evidence I tend to the view that such tree remained until at least some time after 2000 rather than being removed in 1988 as suggested by the defendant. The evidence of Mr Lewis implies that he identified the Cape Virgilia in the photographs taken in November 2000. It is to be noted that the defendant was “uncertain” as to whether the Cape Virgilia had been removed in 1998.
231
Part of the case of the plaintiff is that the north-western corner of her premises subsided as a result of root encroachment and consequently caused damage to her back porch, and lounge/sitting room. A factual issue arose as to whether the north-west corner of the premises did in fact subside or was, in truth, at the level on which the house was built or, alternatively, had “heaved”. After a careful consideration of the evidence, I find that consistent with the evidence of Mr Setford, and Mr Carlin-Smith, the north-west corner of the plaintiff’s premises subsided. In this respect, I reject the evidence of Mr Juers and in particular, note that under cross-examination, he accepted that if the striker plate had to be moved up and down in order to accommodate the shutting of the door, that would suggest stump movement. Having viewed the premises and indeed heard the evidence of others, I accept that the striker plate had to be moved up and down, brought about by subsidence of the north-western corner of the premises.
232
However, a distinct issue arose as to whether any tree root encroachment from the defendant’s property was a cause of the subsidence in the north- west corner. Again, after a consideration of all of the evidence, I am not satisfied, as a matter of probability, either by way of direct evidence or inference, that tree root encroachment was a cause of such damage. I am of such view for the following reasons:
(a)
Mr Juers was of the strong view that even if there had been subsidence in the north-west corner of the plaintiff’s premises, such subsidence was not due to tree root involvement as one would expect differential movement in the affected area rather than a uniform movement as seen in the area;
(b)
Mr Setford initially inspected the plaintiff’s property on 12 May 1999 at the request of the plaintiff to assess and report any damage to the building arising from water and consequential damage as a result of water flowing from the Spence property to her property.[252] At that time, there seemingly was no suggestion by the plaintiff to Mr Setford that she was suffering damage from 1996 or 1997 as a result of tree root encroachment. Mr Setford formed the opinion at that time that there had been building foundation movement with various areas of damage throughout the plaintiff’s premises and in particular, the living room area exhibited movement at the wall and ceiling junction with timber cornice separation at the wall and ceiling junctions.
(c)
Mr Setford later examined the premises on 5 March 2001 and came to the view that there had been subsidence of the plaintiff’s premises due to tree root encroachment. During cross-examination, he ultimately conceded that the “more probable explanation” of the subsidence of the north-west corner of the plaintiff’s premises was a result of the “wetting incident”;
[252] T 984, L15-16
It was submitted by counsel for the plaintiff that little or no weight should be given to the evidence of Mr Setford in relation to the 1999 attendance at the plaintiff’s premises as this had not been put to the plaintiff. I reject such submission, as the plaintiff clearly accepted under cross- examination that he attended for that reason and indeed Mr Setford was called on behalf of the plaintiff as her expert witness which presumably involved knowledge of his attendances at her premises;
(d) Mr Carlin-Smith stated that it “could be argued” the tree root encroachment caused subsidence of the north-west part of the plaintiff’s premises and the arborist, Mr Lewis, stated that it was “possible” that tree root encroachment from the defendant’s property may have caused the subsidence in the north-west of the plaintiff’s premises. I also take into account the evidence of Mr Setford that the maintenance of the plaintiff’s premises was not good and there did not appear to be any attempt to rectify any damage when the property was first seen in 1999, to his further attendances in 2000.
233 I am satisfied that tree root encroachment from the defendant’s property has caused damage to the paving on the western side of the plaintiff’s property and some minor damage to the tropical house and garden shed. There is evidence from Mr Juers, Mr Setford and Mr Carlin-Smith that the pavers seemingly have been affected by tree root encroachment, and indeed the evidence from the plaintiff is that she removed tree roots under pavers, and there is photographic evidence of a ‘Y’ shaped root between pavers. Furthermore, I am of the opinion that there is very minor damage brought about by ivy encroachment on the fibreglass of the out buildings. Although not totally clear, I have formed the view that the ivy has largely emanated from the defendant’s property.
234 Furthermore, I have formed the view that the damage described to the pathway and the minor damage to the out buildings have been caused by either the negligence or, alternatively, a nuisance committed by the defendant. It seems clear enough that in the early days the plaintiff did complain regularly about these types of problems and as the defendant freely admits, on occasion he ignored such complaints or took no action. In such circumstances, I am of the opinion that the defendant was put on notice as to any ongoing problem with tree root encroachment, at least in relation to the pathways and ivy encroachment into the out buildings. Furthermore, although an issue arises as to whether or not the plaintiff should have done more in relation to the ivy, I tend to the view, taking account of her age, the difficulty of access and the like, that there should be no finding of contributory negligence on her part.
235 Accordingly, I find that the defendant is liable for the damage to the pathways and to the out buildings.
(C) Quantum of Damages in relation to the Tree Root Encroachment Claim 236
I note that Mr D’Cruz, whose estimates I found to be excessive compared to other estimates, estimates the cost of rectifying the pathway to be $2,300.00. Mr Carlin-Smith estimated the cost to be $3,600.00 and Mr Juers, approximately $1,600.00. Taking into account the minor work to be undertaken on the out buildings, and allowing for any small extras such as insurance and the like, I allow $5,000.00 for this head of damage.
(D) The Liability of the Defendant in relation to the Poisoning Claim 237
I am far from satisfied either on any direct evidence or indeed by inference that the defendant has a liability to the plaintiff in respect to the poisoning claim. As counsel for the plaintiff fairly conceded, it is necessary to make reasonable inferences on behalf of the plaintiff if she is going to succeed in this aspect of the claim. After a consideration of all of the evidence, I am of the opinion that no reasonable inference can be drawn to support the plaintiff’s contention. I say so for the following reasons:
(a)
The defendant, who I found to be essentially a witness of truth, has given sworn evidence to the Court that at no time did he use herbicides and/or insecticides other than some very brief and intermittent use of some ant repellent on his pergola;
(b)
It is to be remembered that the allegation is that over the period from 2002 to 2008, the defendant intermittently used herbicides and/or insecticides to the extent that by some form of propagation (pouring, spraying) the western side of her property was effectively “poisoned” causing damage to plants and fish. At no time during those six years did the plaintiff sight the defendant or any agent performing any activity consistent with the use of herbicide and/or insecticide. The plaintiff gave evidence that she was alerted to such activity by the barking of her Doberman bitch;
(c)
I also take account that in the early 2000s, the defendant was steadfast in his refusal to allow herbicides to be used on his side of the property line to eradicate growth in preparation for the construction of the new fence. The plaintiff submits that there was an element of recent invention about his “green” approach, but I accept that although cost of the herbicides was a factor, he genuinely did not want herbicide on his property as it would retard future growth. I also point out that if indeed the defendant was using herbicides intermittently from 2002 to 2008, surely this would have been made known when he was requested to allow herbicides to be used on his side of the property line;
(d)
Although there is evidence of a significant concentration of chemicals found by Mr Marone on the western side of the backyard of the plaintiff’s property, I am not persuaded that I can draw any inference that there were large amounts of chemicals along the western border of the plaintiff’s property or indeed, the eastern side of the defendant’s property. It is to be remembered that initially, the plaintiff engaged Mr Marone to check on the western side front of her property for chemicals which she believed may have been brought across from the eastern side of her property after the “Flick episode” with the Spence neighbour. Mr Marone also performed some testing of the old fence which failed to detect any chemicals. The major component of the poisoning claim was the alleged loss of plants, grown in various aquatic tanks. There was no testing of the water in such tanks and indeed, no expert opinion in relation to the poisoning of the alleged water plants;
(e)
The defendant gave evidence that he lost a number of trees over the years which he explained by the drought. There is some force in such proposition when one considers that at least two or three of those trees were on the western side of his property well away from the alleged fence line;
(f)
Although I generally accept the evidence of Mr Kenyon that there was some evidence of “dieback” on the western side of the plaintiff’s property, he ultimately came to the view that it was a matter of speculation whether an herbicide was the cause of such damage. Furthermore, as he freely conceded, he would have been in a better position to give an opinion if he had compared all the plants around the premises and on a number of occasions;
238
Considering that I have found that the defendant has no liability in respect to the poisoning claim, I make no findings in relation to the evidence before me from Mr Jones as to the alleged loss of plants and fish.
239
Given the evidence of Mr Lewis that there are no trees on the defendant’s property with the potential to cause tree root encroachment, I decline to grant any injunctive relief. Furthermore, given my findings, the principles of res ipsa loquitur do not apply and in particular, one of the elements of that principle involves that the instrument or agency that caused the injury was under the control of the defendant (see paragraph 28). Of course, that is one of the core issues in dispute in relation to the poisoning claim.
Proposed Orders
240 I will hear the parties as to the proposed orders and any other ancillary matters.
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