Owners Corporation SP020030 v Keyt
[2016] VCC 1656
•24 October 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-15-01538
| OWNERS CORPORATION SP020030 | Plaintiff |
| v | |
| NORMA LORRAINE KEYT (a person under disability who sues by her Litigation Guardian BRIAN KEYT) | Defendant |
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JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12, 13, 17, 18, 20 and 21 October 2016 | |
DATE OF JUDGMENT: | 24 October 2016 | |
CASE MAY BE CITED AS: | Owners Corporation SP020030 v Keyt | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1656 | |
REASONS FOR JUDGMENT
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Subject: NUISANCE
Catchwords: Tree root encroachment – negligence – knowledge – continued or adopted nuisance
Cases Cited: Robson v Leischke (2008) 72 NSWLR 98
Judgment: Judgment for the plaintiff against the defendant for damages in the sum of $61,780.00.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B McCullagh | LFS Legal |
| For the Defendant | The defendant’s Litigation Guardian, Brian Keyt, appeared in person | Peter J Gauld |
HIS HONOUR:
1 The plaintiff is the Owners Corporation responsible for the common property at a block of eight units at 10 Munro Avenue, Carnegie. The defendant, between 2000 and September 2015, was the registered proprietor of a house next door, at 9 Munro Avenue. The defendant, Norma Lorraine Keyt (“NK”), occupied this house with her husband, Brian Keyt (“BK”), and defends this action through him as her Litigation Guardian.
2 Two Leylandii cypress trees (“T1” and “T2”) are situated at 9 Munro Avenue and are positioned immediately next to the dividing fence between 9 Munro Avenue and 10 Munro Avenue. A concrete driveway runs the full length of 10 Munro Avenue alongside the dividing fence.
3 As part of professional property management, the managing agents of 10 Munro Avenue, G A Thomson & Co Pty Ltd, commissioned a risk report on 10 Munro Avenue from Risk Management Services. They produced a detailed report of the exterior and interior sections on 7 May 2010.[1] There was no issue reported as to any problems regarding trees or damage caused by roots. In fact it was specifically reported that in terms of any problems or action required with respect to exits and paths to the units, there were none.
[1]Exhibit H
4 In or about August 2012, through Mr Anthony Lee, the director of G A Thomson, the plaintiff became aware of potential damage to that driveway by way of concrete starting to uplift as a result of tree roots coming from T1 in 9 Munro Avenue. Mr Lee, at that stage, saw no grave concerns and in particular thought motor vehicles could travel up and down the driveway without any difficulty. He also saw no major impediment to tenants’ access due to the uplift.
5 Mr Lee conversed with the owner of 10 Munro Avenue and followed his instructions to contact the Keyts about the issue. Employees of Thomson left communication by card or letter at 9 Munro Avenue requesting contact be made with the property manager about the matter. No contact was made.
6 In November 2013, Mr Lee met a tradesman from a company called “Stumps and Trees” at the property to discuss two large pittosporum trees growing at the front of 10 Munro Avenue. On that day, the two men walked down the driveway and Mr Lee noted that the uplift from T1 and T2 was greater than he had seen in August 2012. He considered it was now becoming an issue and was a concern.
7 Following that inspection and after discussion with the owner of 10 Munro Avenue, the engagement of the arborist, Mr Robert Murray, took place. He attended in his professional capacity on 17 February 2014. The very next day, on 18 February 2014, BK forwarded quotes for a new dividing fence. This led to a number of exchanges by email contained in the various exhibits about the undesirability of proceeding to do anything with respect to the fence until the tree root problem was attended to. No positive response from the Keyts to the root issue was forthcoming. This was in spite of BK meeting Mr Murray on site in something of a verbal confrontation while Mr Murray was cutting part of the concrete driveway for inspection purposes on 17 February 2014. BK was verbally aggressive and demanded that Mr Murray not damage the roots.
8 An email from Mr Nicholas St Flour, an employee of Mr Lee’s property management company, to BK on 8 March 2014, pointed out in very explicit terms the “massive damage to the fence and the driveway at 10 Munro Avenue”. It went on to point out how it had become a tripping hazard and there had been repeated advices to BK about “the damage being caused to the property next door and no action has been taken to date”. In further very plain terms, it said that the tree “is causing significant damage to the owner’s driveway, tree roots are broken and raised sections of paving and fence plinth/kerb and is a hazard for pedestrians”.[2]
[2]Exhibit C
9 On 15 August 2014, Mr Lee arranged an inspection and obtained a quotation of $6,578.00 from a concreting company, MAP, to repair the driveway and to cut the roots from T1.[3] Upon querying the concreter however, that work did not proceed. This was because it was made clear to Mr Lee that the concreter thought T1 might fall over if that root was cut and thus cause even more major problems for both 10 and 9 Munro Avenue.
[3]Exhibit 4
10 After a number of unsuccessful communications between the management company and the Keyts concerning the problem, solicitors were engaged by the plaintiff in order to address the encroachment of roots that were now causing obvious damage at 10 Munro Avenue. Nothing was done by the Keyts to address the problem in spite of Mr St Flour pointing out in that 5 March email that it was an ongoing issue as it was “a living tree root, it is about 100mm diameter”.
11 In late 2014, NK engaged local real estate agents, Woodards, to sell 9 Munro Avenue at public auction. Shortly prior to that auction the plaintiff, through its solicitors, LFS Legal, sent a letter to Woodards informing them of the issue and the loss and damage caused to the plaintiff as well as the multiple attempts to resolve the dispute without success. The letter made it clear this issue was to be communicated to any prospective new owner as an expert had been engaged and the plaintiff intended issuing legal proceedings for the ongoing loss and damage.
12 Not surprisingly, the property did not sell at auction. There was no bid. Still nothing was done by the defendant.
13 The current proceedings were then issued in March 2015 seeking damages in trespass, negligence and nuisance. The claim was for damages of $56,530.00 for rectification works to the driveway, pavement, stormwater system, WC and boundary fence, together with the costs of expert reports of $4,862.00. The total claim pleaded was for $61,392.00 damages.
14 A Defence to this claim dated 22 May 2015 was filed and had been prepared by Peter J Gauld, solicitors. Essentially, it contained denials of the allegations of damage, and in relation to any knowledge on the part of the defendant, of any damage.
15 After the failed auction, in early 2015, NK then offered 9 Munro Avenue for private sale via the Internet without the engagement of a professional agent. A price of $1.2 million was sought. In May 2015, a Ms Olivia Guntarik and her husband, Mr Greg Davis, saw the Internet advertisement and spoke by telephone to BK. They arranged an inspection and on 25 May 2015, inspected the property. Without engaging solicitors or estate agents they verbally agreed to purchase 9 Munro Avenue for $1.2 million and the Keyts agreed to sell for that price.
16 BK said he would arrange to have a contract of sale prepared. No mention was made either by telephone or at the inspection about the tree root problem. The solicitor’s letter of 5 December 2014 was not mentioned nor shown to the prospective purchasers. Nor was any mention made of the issued legal proceedings even though by the time of the inspection on 25 May 2015, the Keyts’ solicitors had filed their actual Defence to the Statement of Claim.
17 Two days later, on 27 May 2015, BK then sent an email to Greg Davis that reads like sudden bad news had just occurred. It said “We have been hit with some bad news from our solicitor. Our neighbour is claiming damages caused by one of our trees to their property. The claim for damage is a mad claim of $75,000. This will now, be taken to court. (There may be other claims, we will pay for them).” A little further on the email said “We cannot afford to pay for the claim, that will leave us short for the move to the next house. Will you be able to increase your offer by $75K?”[4] The clear inference from this email was that the Keyts were saying to the prospective purchasers that they had suddenly been hit with this claim, “out of the blue” as it were, between the 25 May 2015 inspection and 27 May 2015.
[4]Exhibit 4
18 The prospective purchasers indicated they could not pay the $75,000 BK asked them to pay for the damage. In the end, after a number of phone calls and BK indicating there were now other purchasers interested in 9 Munro Avenue, a final price of $1.3 million was agreed on. A Contract of Sale and a Vendor’s Statement were prepared by Peter J R Gauld, solicitors.[5] There was nothing in the Contract nor in the Vendor’s Statement or anywhere else in the paperwork regarding the tree issue. Somewhat surprisingly, the purchasers signed a Contract and accepted the verbal assurance of BK that the tree issue would be addressed by the Keyts.
[5]Exhibit E
19 The settlement date was 16 September 2015. The purchasers wanted a final inspection before settlement. They had great difficulty arranging any final inspection in spite of repeated requests every few days of the Keyts. The day before 16 September 2015, the purchasers walked next door into 10 Munro Avenue and saw that the damage had not been fixed.
20 Again, somewhat surprisingly, settlement still took place on 16 September 2015. The $1.3 million was paid over but vacant possession was not to be handed over for another two weeks as the Keyts apparently said they needed that time to finally pack up their possessions. BK told them on 16 September 2015 that he was still dealing with the tree problem. No date was agreed on as to the removal of the trees but BK orally agreed he would remove the trees by the time they took possession of the property which was to be a fortnight later.
21 The purchasers took possession on 30 September 2015. Nothing had been done about the trees. They continued to contact BK regularly and he kept maintaining he would deal with the issue. He said he was still in dispute with 10 Munro Avenue.
22 Sometime between 16 September and 30 September 2015 the purchasers decided to engage solicitors. They prepared a Deed of Release to protect the purchasers’ position with respect to the trees and it was forwarded to the Keyts’ solicitors.[6] It has never been signed. The evidence is that the Keyts changed solicitors and there were three firms acting for them at different stages in this period but to no avail. The Deed of Release was never executed. An email on 14 December 2005 from Greg Davis to BK was another specific request in writing for the Deed to be signed. Still nothing eventuated.
[6]Exhibit F
23 Then, on 22 January 2016, some trades people attended at 9 Munro Avenue. Apparently they were from a tree cutting firm, “Jacks Trees”. The evidence is they had been sent there by BK. The new owners stopped any work taking place because the Deed of Release designed to protect their interests had still not been executed. From there the matter has just proceeded to trial.
24 When this matter came before me on Thursday, 13 October 2016, it became apparent that a mediation had never taken place in spite of one having been ordered. I arranged, with the consent of both parties, a Court ordered mediation to take place. It was organised to take place before a Registrar of this Court. It was conducted the next day. I stayed seized of the matter and in view of no settlement being reached, I commenced to hear evidence on Monday, 17 October 2016.
25 The first witness called was Mr Terence O’Donoghue, engineer and building consultant. An expert report from him was tendered, together with photographs and they are self-explanatory in indicating the damage from encroachment of roots from the trees in 9 Munro Avenue into 10 Munro Avenue.[7] The rectification costs of $56,530.00 were set out. In Court he said $5,250.00 would also be needed in order to remove the two trees (T1 and T2).
[7]Exhibit A
26 The second witness was Mr Robert Murray, arborist. An expert report from him was tendered.[8] It is also self-explanatory. It contained a number of photographs following an inspection of the property by the expert on 17 February 2014. On that day he cut out a triangular piece of concrete uplifted in the driveway and removed it. The photographs clearly demonstrate what he discovered underneath by way of the presence of a very large tree root less than 2 metres away from the trunk of T1 on the other side of the very damaged paling dividing fence.
[8]Exhibit B
27 As already mentioned, he gave evidence of being verbally abused by BK on that day while working in the driveway. BK told him that he was “not to damage the roots of his trees”. Mr Murray said in view of that he “backed off”.
28 Mr Murray visited 10 Munro Avenue a second time on 11 October 2016 for purposes of this trial. He said the damage to the concrete driveway was now a lot worse. It had been disrupted to the extent that he thought the low front on some modern vehicles would not be able to drive over it. He also gave evidence about how this variety of tree would cause damage to pipes and disrupt drainage and had done so at 10 Munro Avenue.
29 I accept the evidence of the two experts that the root encroachment from T1 and T2 has caused the damage to the fence, driveway, storm water system and rear toilet structure of 10 Munro Avenue. That evidence was set out in their respective expert reports as well as their oral testimony. They were impressive witnesses.
30 The next witness was Mr Nicholas St Flour, the Thomson employee already mentioned who had been involved as the property manager responsible for 10 Munro Avenue from June 2013 to July 2014. He noticed the damage to the driveway and had been responsible for a number of emails to BK in 2014.[9] I accept his evidence about communications with the Keyts and the damage.
[9]Exhibit C
31 The final witness for the plaintiff was Mr Lee. He has been managing the property for some thirty years at 10 Munro Avenue and is the director of Thomson. I have already covered some aspects of his evidence in the earlier summary I have given of the facts. Mr Lee, in August 2012, met his client, Mr Lermer, the owner of 10 Munro Avenue, at the premises and it was on that occasion that he noticed, in the course of a routine inspection, the start of some uplift of the concrete driveway.
32 Mr Lee then instructed his staff to contact the Keyts about the problem. In November 2013, Mr Lee met a tradesman from “Stumps and Trees” who was there to look at some pittosporum trees at the front of 10 Munro Avenue. After both walked down the driveway, the tradesman suggested retention of an arborist in view of the T1 and T2 damage they saw.
33 Mr Lee engaged Mr Murray, who attended on 17 February 2014, had the confrontation in the driveway with BK and produced his report. Somewhat amazingly, the very next day was when the email about fence quotes came in from BK. Predictably Mr Lee said his client was not interested in those until the tree problem was fixed. In effect nothing was heard from BK for some five months until August 2014.
34 I found Mr Lee a reliable witness and accept his evidence that attempts were made by his employees leaving cards or letters at 9 Munro Avenue asking the Keyts to “contact us”. No contact was made. Mr Lee had engaged the concreter, MAP, in August 2014 to quote for repair of the concrete driveway.[10] Mr Lee did not proceed with that repair work as the concreter warned if the root from T1 was cut, the tree might fall on either property.
[10]Exhibit 4
35 I also accept Mr Lee’s evidence that after searching his records he had not engaged any tree lopping firm to cut the large branches of T1 and T2 on the10 Munro Avenue side of the fence. Mr Lee noticed on subsequent occasions, including when attending with the concreter, how the concrete had lifted further and higher. At the view this week, the damage was even worse and the uplift higher again than witnesses had observed on earlier occasions.
36 At the end of the first day of hearing I enquired of the parties whether such a view was desired and both requested same. It was conducted for approximately one hour at 10.30am on 18 October 2016 with all parties in attendance. Counsel for the plaintiff pointed out matters along the driveway and into the rear concrete yard of 10 Munro Avenue along with certain stormwater drainage points. BK then pointed out matters he wished to bring to my attention at 10 Munro Avenue. Both parties then did the same at 9 Munro Avenue, both inside and outside the house, after gaining permission from Ms Guntarik.
37 At the view it was obvious that the roots from T1 and T2 severely disrupted and broke up the concrete driveway at 10 Munro Avenue in a number places. In particular T1 had so uplifted the concrete that I was able to inspect by lifting up the triangular piece of concrete cut out in February 2014 by Mr Murray. It was situated less than 2 metres from the trunk of T1. I observed the large tree root thereunder. The tree root is now larger than it was nearly three years ago when photographed in 2014 and the uplift damage to the driveway is considerably worse than shown in those photographs.
38 The root size now is more than 100 millimetres. In addition, I was able to lift up another piece of thick concrete closer to the trunk of T1 by about 500 millimetres that had not been cut but just broken up due to the uplift. This gave me a further view of that same extremely large tree root, this time closer to the trunk.
39 The trunks of both trees have damaged the dividing fence. Roots have encroached in the areas of the stormwater points. The trunks and roots have damaged the kerbing that runs along the boundary as well as effectively wrecking the fence in parts. The most cursory inspection of the large trunks where they meet the soil shows huge root formation pushing up soil in different directions that must lead to any reasonable person concluding they are or will encroach into and damage the nearest property, namely 10 Munro Avenue. On the probabilities this was the situation well before actual knowledge of material damage to 10 Munro Avenue was gained in or about 2012. I am satisfied sometime between about 2012 and most certainly by early 2014, any reasonable occupier of 9 Munro Avenue would have, or should have, reached this state of knowledge.
40 Generally, the view not only confirmed the encroachment of the roots of T1 and T2 onto 10 Munro Avenue but added to the evidence about the extent of the damage described by the two experts. The damage at 10 Munro Avenue is now considerably worse than described and depicted in the exhibits. Lifted portions of the driveway would, in my opinion, be an obstacle for some cars to drive over unimpeded.
41 The defendant’s Litigation Guardian, BK, was the only witness to give evidence for the defence. It was a great advantage to both hear and observe him over many days. I found his evidence very unconvincing and he was an unreliable and inconsistent witness. His “defences” were expressed differently and changed more than once. As to the damage to the toilet, his view was that roots did not cause that problem. This was merely an expression of a layman’s opinion without any evidentiary support.
42 Similarly, as to the stormwater system damage, he simply did not accept that roots had caused that and rather relied on superficial leaves and other debris around the drainage points. I accept the evidence of the experts that the roots have caused damage to both the toilet and stormwater system and on an inspection at the view of the size of several roots, their evidence was no surprise. In a similar vein, BK said he thought the concrete damage and cracking closest to T2 had been caused by machines brought into cut down trees. He could not say when these machines were there. I do not accept his lay opinion on this. It is totally unsupported.
43 As to the more obvious and more serious damage caused by the roots of T1, he did concede in Court that damage to 10 Munro Avenue came from their encroachment. His defence to that was that the tree was on an easement. He seemed to be urging the Court to accept that meant he could not do anything about the problem. Inconsistent with this reliance on the presence of an easement, the Keyts had built a carport over that very easement. That was obvious at the view. That is also clearly shown in his own title documents tendered in relation to that carport. They bear dates in late 2011 and early 2012.[11]
[11]Exhibit J
44 I reject his argument. I find that the presence of the easement had nothing to do with the non-activity by the Keyts regarding obvious root damage to 10 Munro Avenue that on all of evidence was made known to them probably in about 2012, and certainly in writing by 5 March 2014.
45 The other matter raised by BK in defence of this action is that he considered the trees were planted prior to NK purchasing the property in 2000. I agree that on the evidence, they clearly were planted prior to 2000. He considered that the first owner should have been notified by the 10 Munro Avenue owners about the trees being on an easement and again seem to be of the view that this somehow afforded an excuse to do nothing. I reject the argument. In my view, this is a case where NK has clearly continued and adopted a nuisance increasingly made known to her from 2012 onwards.
46 When challenged, BK presented as a very inconsistent and evasive witness. As soon as something was in front of him that was not easily explained, his version changed. Examples were why he had not shown the solicitor’s letter of 5 December 2014 to the prospective purchasers, Greg and Olivia. He said in the witness box that it had been shown to them. I find this unacceptable. He had never suggested that to the witness when she was giving evidence about the various negotiations. Nor had he even hinted at it when he was saying things on the topic from the Bar table as often occurs when a party is unrepresented.
47 He was very evasive and unreliable when confronted with the fact that in an email on 27 May 2015 he had asked these prospective purchasers for $75,000 in relation to the tree root problem when in fact he had received a Statement of Claim seeking only a little over $61,000. This smacked of a clear misrepresentation.
48 He stated clearly in that same email to the prospective purchasers that in relation to the tree root problem, “We have tried to settle this matter, by fixing the concrete and cutting or trimming the tree.”[12] When I asked him myself what concrete he had fixed he just would not answer. When I asked him about what cutting and trimming of the tree he had done he initially said that part of the email was just wrong. The Keyts had not done it he said.
[12]Exhibit D
49 Later on when asked about it again he said that he had trimmed some of the trees but on his own side of the fence. Clearly that would have had nothing to do with rectifying the problem of roots on the other side encroaching into 10 Munro Avenue in terms of “fixing” the problem and trying “to settle this matter”.
50 In this case there is no evidence as to when the trees were planted. It is an inescapable inference from the size of T1 and T2 that they were planted before 2000 when NK became the owner of 9 Munro Avenue and commenced to live there with BK. Accordingly this is an action with respect to nuisance that raises the principles concerning where a defendant adopts or continues a nuisance.
51 In this case I am satisfied on the probabilities that both NK and BK, although he is not a party, had actual knowledge of the existence of the encroachment of the tree roots and failed within a reasonable period of time to take reasonable measures to bring it to an end. I am satisfied that well prior to 2014, the probabilities are that NK had actual knowledge there was material physical damage being caused to the fence hard up against the trees, to the concrete kerbing immediately under the fence and to the driveway of 10 Munro Avenue.
52 If I am wrong on that then they should have had knowledge. Visual inspection up the concrete driveway at 10 Munro Avenue is unimpeded from the footpath at the front of both properties. The position of the trees hard up against the fence and the inevitable encroachment of roots of these large trees in all directions, including toward 10 Munro Avenue, make it unrealistic to consider that next-door neighbours such as NK and BK would not have noticed those factors. On the probabilities, I infer and am satisfied they would have been well aware of the encroachment of roots into 10 Munro Avenue and of the likelihood of damage to the driveway as well as to the dividing fence that was obviously being pushed offline and damaged.
53 Also, I accept the evidence of Mr Murray that the large and very high branches that had been cut off T1 when he visited the property on 17 February 2014, had been cut off some considerable time earlier than that. I accept his evidence they were not freshly cut when he examined them. There is no direct evidence as to who cut the branches off T1 and T2. But I infer from the involvement of BK in everything concerning these trees over a number of years, including him coming out and stopping Mr Murray going about his inspection in February 2014, that he knew about people going about that considerable cutting task.
54 The size, number and height of those large cut branches still evident at the view this week, indicate that it would have been a large and lengthy cutting exercise involving a lot of fallen timber. On the probabilities BK would have known about this. I also infer he would have known that not only were large overhanging portions of T1 and T2 encroaching onto 10 Munro Avenue, but inevitably large roots were doing the same underground. NK, armed with this knowledge, did nothing about the obvious nuisance. She adopted and continued the nuisance. To date she has done nothing effective about rectifying the situation by taking appropriate steps. On the probabilities I find she is liable in nuisance.
55 In February 2014, there were written communications between the parties regarding costs of a new fence. On the evidence before me this is another time when there was also clear written communication of material damage at 10 Munro Avenue. However, I am satisfied that NK, as well as BK on the probabilities, had knowledge of the encroachment of these trees into 10 Munro Avenue well before that.
56 I am satisfied that any reasonable inspection of the position of these trees well prior to 2014 and in particular the size of the trunks and the obvious roots visible above ground spreading out from the foot of the trees in various directions, would have resulted in knowledge on the part of NK and BK that roots were encroaching under the fence into 10 Munro Avenue. The trunks are hard up against that fence. It was inevitable, in my view, that large roots supporting these large trees would have been growing out over a considerable distance into 10 Munro Avenue as well as in other directions clearly seen on even a cursory inspection.
57 lt should be said that for the purposes of disposing of this case, BK has been the author of virtually all of the representations on behalf of his wife, the registered owner. This has been the case in terms of the proposed auction, private sale, him accosting Mr Murray in the driveway, the proposed new fence back in 2014, other emails, telephone calls and communications generally. I accept it is a reasonable inference that for the purposes of deciding this case, he has at all times been acting as her servant or agent and with authority to speak on her behalf. I accept his knowledge of the material facts for the purposes of this case was her knowledge.
58 As to the legal principles, I was referred to Robson v Leischke (2008) 72 NSWLR 98 which sets out the relevant common law on trespass, nuisance and negligence. At my request a copy of this case was given to BK the night before submissions were to start and counsel for the plaintiff flagged the paragraphs in that judgment that he intended referring to in Court. BK had the advantage of knowing what parts of that judgment were to be relied on and counsel went no further than those indicated passages in submissions the next day.
59 In spite of the fact that the defendant had gone into evidence, I reversed the normal order of addresses. I required the plaintiff to address first so BK would know what was being said against the defendant. He then addressed second. In submissions, counsel sensibly indicated he principally relied on nuisance as well as negligence but not on trespass.
60 There is no point in setting out now the passages in that authority that were relied on but they consisted of principally the numbered paragraphs under the respective headings of nuisance and negligence. The case was put by the plaintiff as an adopted or continued nuisance with the incumbent duty resting on such a defendant if she knew or ought to have known that in consequence of her conduct, harm to her neighbour was reasonably foreseeable.
61 As to the question of knowledge, I already indicated my views about when the requisite knowledge came to NK and if it was not actual knowledge, which I find it was, then she ought to have been aware of the existence of the nuisance and the resultant damage.
62 How nuisance and negligence coincided in a case such as this was also relied on. The plaintiff submitted that the defendant continued the nuisance with actual knowledge of its existence and failed within a reasonable period of time to take reasonable measures to bring it to an end. I accept that submission.
63 I find on the probabilities that the plaintiff has proved its case against the defendant by way of a continued or adopted nuisance resulting in material physical damage.
64 In view of what I have concluded as to nuisance, it is not necessary to separately discuss the question of the tort of negligence at any length. But lest there is any doubt about the matter, I am satisfied on the balance of probabilities that the loss and damage caused to the plaintiff is as a result of breach of the duty of care owed to the plaintiff by the defendant.
65 It follows that there will be judgment for the plaintiff against the defendant for damages in the sum of $61,780.00. I will hear the parties as to other orders.
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