The Plaintiffs' claims are for
compensation against the Defendant for the echment of the Overhang into into
the airspace
over their respective areas of land. Mr. Ashley, counsel for
both Plaintiffs argues it was the Defendant who was responsible
from
beginning to end, for the construction of the said Overhang and therefore
liable to the Plaintiffs for that encroachment.
Learned Counsel borrowed the
definitions used in the Occupier's Liability Act 1957
(United Kingdom legislation but deemed
part of the laws of Solomon Islands by virtue of Paragraph 9 to Schedule 3
of the
Constitution), for the definition of the word "Occupier",
and came to the conclusion that the Defendant was the Occupier at time
of
construction of the Overhang. It was therefore liable for the encroachment.
It was obliged to comply with By-law 10(1)
of the Honiara Town Council
Building By-laws, which provided that a building of the type constructed by
the Defendant
should not cover more than 80% of the plot. In the
alternative, the Plaintiffs argue the Defendant would be liable in any event
by virtue of the fact as an independent contractor, it owed a duty to the
Occupier to ensure the work done was that expected
of a competent contractor
in its field. The Plaintiffs relied on what the learned Author in Winfield
and Jolowicz on
Tort 14th Edition at pages 236 to 238 had said on this
particular issue.
DEFENDANTS ARGUMENTS
efendants deny the
definitions adopted by the Plaintiffs under the Occupiers Liabilitbility Act 1957
apply to the facts
of this case, pointing out that the said Act only dealt
with an occupiers liability to his visitors. They concede on the other
hand,
that an encroachment into the airspace of a plaintiff's land by a
neighbouring building can found an action in
trespass against the owner of
the offending encroachment. The case of Kelsen v. Imperial Tobacco Co. of
Great Britain and Northern Ireland) Ltd [1957] 2 QB 334 was cited as
authority for this proposition. The Defendant sought to make a distinction
between initial trespass and
continuing trespass, arguing that whilst it
does not concede it was liable for the continuing trespass, it conceded an
action for the initial trespass would lie against it by the First Plaintiff.
It denies however, any damages are due as no
losses could possibly arise
from that initial overhang. It also denies liability to Nimele for the
initial trespass on
the ground Nimele did not acquire any interest on the
land till after construction of the Overhang had been completed and
possession reverted to TPL.
THE ISSUE
The issue of law which arises
for determination in this case is quite simple; whether there had been
trespass and who
is liable?
THE LAW
The statement of law on
trespass to airspace can be found in moxtbooks on the law of tort tort
including Winfield and
Jolowicz on Tort 9th Edition pages 312
and 313; Tort. 4th Edition by C.D. Baker at page 54 and Law of Torts in the
South Pacific by Stephen Offei, page 221 paragraph 15.6.4. All those
texts made mention of Kelsen v. Imperial Tobacco Co. Ltd (1957) 2 QB
334 as the case authority on trespass into airspace. This was based on the
usque ad coelum principle; that is, possession of land was said to
extend to the air-space above the land. The case of Kelsen (ibid) involved
the
erection of a sign over the defendant�s property but which also overhung
into the plaintiffs property. It was held a trespass
had been committed and
the defendant ordered to remove the sign. An earlier case from which the
current position in law
had been derived was the case of Gifford v. Dent
[1926] W.N. 336 cited in Kelsen's Case (ibid). In that case a sign
had been erected on a wall above the ground floor premises which had been
demised to the
plaintiff and projected some 4 feet 8 inches from the wall.
It was held a trespass had been committed into the airspace of
the
plaintiff. The case of Lord Bernstein of Leigh v. Skyviews General
Limited [197W?] QB 479 is also an important case because it seems to
have set the limit of the height over which trespass may be considered
by
the courts as actionable. It was held an action for trespass would lie
provided the intrusion was at such height it
interfered with the ordinary
use and enjoyment of the land (see also Anchor Brewhouse
Developments v. Berkley House (Docklands Developments) Ltd [1987]
2 EGLR; Woollerton and Wilson Ltd v. Richard Costain Ltd [1970] 1 All
ER 483; and Wandsworth Board of Works v. United Telephone Co ([1884] UKLawRpKQB 123; 1884)
13 QBD 904.).
THE OCCUPIERS LIABILITY ACT
1957
The use of the definitions in the Occupiers Liability Act 1957 by Counsel for the PlainPlaintiffs therefore are
misconceived.
ass="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1">
PERSON RESPLE FOR THE
INTRUSION
From the clear case authorities
cited, it cannot be denied, and I accept thi been wisely conceded by
by
learned Counsel
for the Defendant, that a trespass had occurred in respect
of the Plaintiffs' lands. The facts speak for themselves (see Exhibit 18
for a diagram drawn to scale showing the extent of the intrusion). The
HFB when constructed did not take into account the intrusion that would be
caused by the Overhang into the Plaintiffs'
abutting lands. The
responsibility for that intrusion lie solely with the Architect Builder;
PAL. Not only did PAL hold
itself out as a competent builder but also as a
competent architect in the drawing of original designs and site plan of the
building, and in the supervision of the construction works. That it had
failed to carry out its duty as a competent builder
and architect
supervising the construction of the building with regards to that intrusion
is undeniable.
LIABILITY FOR THE TRESPASS
class=lass="MsoNormal" style="margin-top: 1; margin-bottom: 1">
The Defendant concedes the
initial trs to both the Plaintiffs properties were caused by it.
Judgment accordingly
should be entered in favour of the First Plaintiff for
that initial trespass with the question of whether any damages are payable
to be subject to a further hearing. I appreciate the Defendant had sought to
argue it was not possible for the Defendant
to be liable to pay any damages
as no loss had been proven. Unfortunately that is jumping the gun as the
question of
whether damages are payable was agreed at hearing of the
question of liability to be deferred until after determination of
the
question of trespass had been established, and was to be a matter for
further argument between the parties.
The Defendant howevenot be
liable for the continuing trespass. Liability must lie with TPL and
subs subsequently with
HFC. I acknowledge the Defendant may have to indemnify TPL
and subsequently HFC, but in this case where only the Defendant
had been
sued, this Court cannot make any orders against the Defendant for the
trespass of TPL and HFC.
On the question whethe
Defendant would be liable to Nimele for the initial trespass, that is
dependependent on whether
the property in Lot 1069 vested in Nimele at the time
of commission of the trespass. Trespass against Nimele could not be
committed by the Defendant if at the time of commission Nimele was not in
possession of Lot 1069. Trespass is a wrongful
interference with possession
and therefore in the circumstances of this case, Nimele was not entitled to
possession until
title had passed (see the case of Townsview
Properties Ltd et al v. Sun Construction and Equipment Co Ltd et al (1974)
56 DLR (3rd 330). The evidence before this Court is very clear; title to Lot
1069 did not pass until on or about
15 March 1996. This was well after
possession of the HFB had reverted to TPL on or about 8 December 1995. No
action against
the Defendant accordingly could be sustained by Nimele for
that initial trespass. The HFB was sold to HFC towards September/
October of
1996. Nimele's rights accordingly lie against TPL and subsequently HFC for
the continuing trespass. TPL and
HFC ultimately may be able to claim
indemnity from the Defendant. In the current case TPL and HFC are not
parties to
this case and so no orders can be made against them.
ORDERS OF THE COURT: