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Nisha v Ali [1995] FJHC 128; Hbc0535j.92s (20 July 1995)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 535 OF 1992

Between:

1. SAMSUL NISHA d/o Nabi Jan
2. NAZMUL HUSSEIN s/o Jumman
by their Attorney Abdul Hussein
Plaintiffs

- and -

1. AMINA ALI
2. STATE TRANSPORT LIMITED
3. SAFAR ALI s/o Mohammed Kasim
Defendants

Mr. R. Gopal for the Plaintiff
Mr. R. Chand for the First Defendant
No appearance by the 2nd and 3rd Defendants

JUDGMENT

By Writ of Summons dated 9 December 1992 the Plaintiffs by their Attorney ABDUL HUSSEIN under a registered Power of Attorney claimed, inter alia, damages against the defendants.

On 22 January 1993, no appearance having been entered by the defendants judgment by default was entered against them with damages to be assessed and costs.

Before I deal with the matter of assessment, I consider that I ought to set out the background to this action to show the steps taken by the second (D2) and third (D3) defendants to set aside the judgment entered against them.

The said Writ was served on D2 and D3 on 17 December 1992. No appearance was entered by them. By Motion filed on 12 March 1993 D2 and D3 applied to set aside the default judgment. On the hearing date (19 March 1993) counsel did not appear and the matter was adjourned sine die with liberty to restore. The Plaintiffs were also not served with the Notice of Motion. Then another Motion was filed on 26 May 1993 to re-instate the previous Motion. All parties had the matter adjourned on numerous occasions for settlement before Kepa J. By Motion filed on 30 March 1994, Mr. Chand for the first defendant (D1) applied to set aside the said judgment. Finally because counsel for the defendants have not been appearing before Kepa J. as required, his Lordship on 13 May 1994, made an order for assessment of damages.

The hearing of assessment of damages commenced on 19 October 1994 after due service of Notices on the defendants. Mr. Chand appeared as counsel for D1. The prayer in item 1 in the Statement of Claim i.e. "that the defendant be ordered to build a retainer wall along the boundary at their own expenses" was withdrawn by Mr. Gopal. The only issue remained was as to damages (prayer 2).

After hearing it was ordered that both counsel file written submissions within 14 days but they were filed out of time by Mr. Gopal on 15 December 1994 and by Mr. Chand on 13 February 1995.

The facts and relief sought

To give a background to the case, for the purposes of assessment, I can do no better than repeat what is stated in the Plaintiffs' Statement of Claim which is as follows:

"Statement of Claim

1. THE Plaintiffs have at all material times been the owners of the land comprised in C.T. 27271 being Lot 2 on DP. 5674 being part of land known as Nakasi situated in the District of Naitasiri in the Island of Vitilevu.

2. THE 1st Defendant is the owner of land comprised in C.T.27460 being Lot 6 on DP. 5674.

3. THE 2nd Defendant is a limited liability company carrying on civil engineering works and having its registered office at 8 Miles Makoi Stage 2, Nasinu.

4. THE 3rd Defendant is the Managing Director of the STATE TRANSPORT LIMITED.

5. ON or about February, 1992 the 2nd Defendant carried out bulldozing work on the 1st Defendant's property.

6. THE boundary pegs were not properly identified.

7. THE 3rd Defendant himself did the bulldozing work on the 1st Defendant's property.

8. THAT part of the Plaintiffs land was excavated.

9. THAT erosion of soil occurs on the land.

10. THE Plaintiffs' property was injured and damaged in that the land lost part of its support. Retainer walls will have to be built to prevent further loss and damage to the land.

11. THAT the acts occurred due to the Defendants' negligence and or nuisance.

Particulars of Negligence

(i) The Defendants failed to properly identify the boundaries of the properties before carrying out the excavation work.

(ii) The Defendants failed to give notice to the Plaintiff that they were going to carry out excavation work on the boundary.

(iii) The Defendants failed to take steps not to excavate Plaintiffs' land while doing bulldozing work on their land.

(iv) The Defendants failed to take any steps to prevent the natural support of the land being taken away from the Plaintiffs' land.

(v) The Defendants carried out the bulldozing work knowing or ought to knowing that the natural support of the Plaintiffs' land was being taken away.

(vi) The Defendants left the Plaintiffs' property in a state that erosion of the land occurs.

Particulars of Nuisance

(i) The Defendants trespassed into the Plaintiffs' land.

(ii) The Defendants carried away soil from the Plaintiffs' land.

(iii) The Defendants interfered with the Plaintiffs' full and peaceful enjoyment of their land.

(iv) The Defendants left the land along the boundary in such a state that erosion of the land occurs.

(v) The Defendants did not take reasonable precautions to prevent damage to the Plaintiffs' property.

12. THE Plaintiffs' seek to rely on the doctrine of Res ipsa loquitur.

13. THE Plaintiffs have suffered loss and damages.

Wherefore the Plaintiffs Claim

1. That the Defendants be ordered to build a retainer wall along the boundary at their own expenses.
   
2. Damages.
   
3. Costs of this action."
   

The Issue

At the commencement of the hearing of assessment of damages it was agreed that liability is admitted by D1.

Hence the sole issue is determination of quantum of damages against all the defendants.

Assessment of Damages

It is not denied by D1 that the Plaintiffs' property has been excavated by D2 and D3 to the extent of three metres leaving a steep embankment of about 20 feet.

The said attorney testified on behalf of the Plaintiffs (Ps) who reside overseas. He produced to Court Rupeni Consultant's Report (Surveyors)(exhibit 2) dated 22 September 1993 which stated that "at the rear corner, part of this lot 2 has been cut away to a distance of 3 metres as shown on the attached plan". It also stated that the "boundary pegs found/placed are in the correct position". The witness said that after the section was cut a "steep embankment was left as a consequence; and that a retaining wall will have to be built - land subsides in rear."

A quotation (exhibit 3(A)) for $27,840.25 from Hamids Construction was tendered to Court to build the retaining wall as per plan (exhibit P4-A-E). Mr. Abdul Hamid who tendered for the retaining wall (exhibit 3) testified that he gave a quotation for $27,840 but he said that it will cost $33,000 (Vat inclusive) now.

The first defendant who was present neither testified nor did she call any witnesses to testify on her behalf.

On the question of the right to the degree of support and the responsibility on the part of the adjoining owners of properties before any work of the nature as in this case is carried out has been succinctly put by FIELD J in DALTON v ANGUS (1880) 6 LR (HL) p. 740 at p. 752 thus:

"So soon as the surface of the land becomes divided, either vertically or horizontally, into separate and exclusive tenements, one of the first and clearest principles applicable to each separate holding is, that the owner has the right given to him by implication of law to use his property as best he likes, provided that he does not by such user injure the rights of his neighbour. If neither he nor his neighbour have built on or dealt with their respective portions, and the latter are in their natural state and condition, it is clear that each owner has as against the other a right to have his soil supported by the soil of his neighbour, whether adjacent or below, and any act done by one which destroys that support so that the land of the other falls is an actionable wrong, and that is so, although the act complained of is not done by him maliciously, but simply in the exercise of his own right to use his own property. Although, therefore, either of them may dig in his own soil as deep and as near to his own boundary or to the surface as he chooses, this right is subject to one limitation from the very first, viz., that he cannot dig so deep and so near as to cause his neighbour's land to sink, unless he substitute some other sufficient support: Wilde v. Minsterley (1); Humphries v. Brogden (2); Rowbotham v. Wilson (3). This limitation, however, upon his right is accompanied by a like limitation of his neighbour's right, so that the advantage and burden are mutual in quality, although they may vary in degree." (underlining mine)

It was therefore the defendants' responsibility to exercise due care that no damage was done to the Plaintiffs' property which they failed to do hence the Plaintiffs were able to obtain a default judgment against D2 and D3 as well.

It is against this background that I now proceed to assess damages on the evidence before me.

The amount that the Plaintiffs are claiming by way of damages is the cost of building retaining walls in the affected area namely at the rear boundary and on the side towards the rear of the property.

In this case this basis would be as good a basis as any with some modifications on which to assess damages on the evidence before me.

The only evidence which I have in this regard, and which is not disputed by D1, is the evidence of Mr. Hamid who gave a quotation for the retaining wall "as per Plan" (exhibit 4) in the sum of $27,840.00 but he said that it will cost $33,000 now.

I notice that in the said Plan there are 3 retaining walls shown (2 on the said affected area and one on the side). Since I am merely concerned with assessment pertaining to the affected area, the quotation has to be adjusted by dividing the figure of $33,000 by three and then adjusting further by examining the height of the wall (as heights, as per Plan, differ in each case) and the area to be covered.

On the facts that I have and doing the best I can in the circumstances, I assess damages at $18000.00 (eighteen thousand dollars).

Further, I find that D1 is 60% liable and D2 and D3 are 40% liable which in monetary terms amounts to $10800 and $7200 respectively.

I therefore enter judgment for the said sums of $10,800 and $7200 against the first defendant and second and third defendants respectively with costs which is to be taxed if not agreed.

D. Pathik
Judge

At Suva
20 July 1995

HBC0535J.92S