In the Supreme Court of New South Wales Alain Spivkin (Appellant

In the Supreme Court of New South Wales
Alain Spivkin (Appellant)
Bernadette Carroll & Lonely Island Pools Pty Ltd (Respondents)
Team 2 Submissions for the Appellant
1. The salient features of the case create a sufficiently ‘special’ relationship between Lonely
Island Pools Pty Ltd and the Appellant to establish a duty of care: Civil Liability Act 2002
(NSW) (“CLA”); Perre v Apand Pty Ltd (1999) 198 CLR 180; Caltex Oil (Australia) Pty
Ltd v The Dredge ‘Willemstad’ (1976) 136 CLR 52; Caltex Refineries (Qld) Pty Limited v
Stavar [2009] NSWCA 258; Bryan v Maloney (1995) 182 CLR 609).
1.1. The damage caused to the underground wire by Lonely Island Pools Pty Ltd was
reasonably foreseeable and not insignificant CLA 2002 s 5B(1)(a)-(b)
1.2. The relationship fulfils the test for pure economic loss (Woolcock Street Investments
Pty Ltd v CDG Pty Ltd (1994) 216 CLR 515: Bryan v Maloney (1995) 182 CLR 609)
2. Lonely Island Pools Pty Ltd breached its duty of care and caused economic loss to the
Appellant, and is therefore liable for negligence.
2.1. Lonely Island Pools Pty Ltd could have avoided the damage, and any burden to avoid
this damage did not outweigh the likelihood and seriousness of damage: CLA ss
5B(2)(a)-(c) and 5C.
2.2. The damage to the pipe was a necessary condition of the Appellant ’s economic
loss: (CLA 2002 5D (1)(a) and (b))
2.3. Objectively, the actions of Lonely Islands Pools Pty Ltd were not consistent with the
widely accepted standard of professional practice: (CLA s 5O (1); Rosenberg v
Percival (2001) 205 CLR 434; Rogers v Whitaker (1992) 175 CLR 479; Overseas
Tankship (UK) Ltd v The Miller Steamship Co Pty Ltd ("Wagon Mound” (No
2)) [1966] 2 ALL ER 709)
3. Carroll’s statement regarding the damage directly caused economic loss, amounting to
negligent misstatement: (Tepko Pty Ltd v Water Board (2001) 206 CLR 1; Hedley Byrne
& Co td v Heller & Partners Ltd [1964] AC 465)
3.1. Carroll falsely assured the Appellant that his broadband access would be restored
within one or two days.
3.2. The damage caused by the statement was reasonably foreseeable, not insignificant,
and a necessary condition of the Appellant s loss: CLA 2002 ss 5B(1) (a)-(b), ss
5D(1) (a)-(b)
3.3. It was reasonable for the Appellant to rely on the information given by Carroll:
(Mutual Life and Citizens’ Assurance Co Ltd v Evatt (1968) 122 CLR 556; Shaddock
& Associates Pty Ltd v Parramatta City Council (No 1) (1981) 150 CLR 225; Kestrel
Holdings Pty Ltd v APF Properties Pty Ltd (2009) 260 ALR 418)
3.4. The Appellant requested the information, demonstrating reliance: (San Sebastian Pty
Ltd v Minister Administering the Environmental Planning and Assessment Act 1979
(1986) 162 CLR 340)
3.5. Thus, damages are recoverable from Carroll for negligence resulting in pure
economic loss.
4. Damages are recoverable for Lonely Island Pool’s negligence resulting in pure economic
loss
4.1. A benefit that the Appellant would have received but for the negligence of the
Lonely Island Pools Pty Ltd is a loss for which damages may be recovered: Hill v
Van Erp (1997) 142 ALR 687
4.2. Recovery of damages for pure economic loss is not restricted to one type of case: Hill
v Van Erp (1997) 142 ALR 687
5.
6.
7.
8.
4.3. The Situation does not give rise to indeterminate liability
4.3.1. Liability is indeterminate only when it cannot be realistically calculated. Due
to the isolation of the damage, imposing liability on the respondent would not
result in indeterminate liability: Perre v Apand (1999) 198 CLR 180 at 221
4.4. The Appellant’s damages should not be reduced for failing to mitigate losses by
seeking alternative internet providers: Munce v Vinidex Tubemakers Pty Ltd [1974] 2
NSWLR 235.
4.4.1. All relevant matters are to be taken into account in considering the
reasonableness: Lorca v Holts' Corrosion Control Pty Ltd [1981] Qd R 261
4.4.2. It was not reasonable for the Appellant to pursue alternative internet access to
mitigate the damage he suffered as a result of negligence, particularly
considering the extended contract he would have to enter into.
4.5. The appropriate measure of damages includes the loss of profits, as there is no other
likely cause than the loss of internet access: Barclay v Penberthy (2012) 246 CLR
258.
4.5.1. As a day share trader, the appellant worked from home and was entirely
responsible for his own income.
4.5.2. Since there is no attributable cause other than the Lonely Island Pools Pty
Ltd’s negligence in removing internet access from the Appellant’s place of work,
the Appellant is entitled to recover profits as a one man enterprise.
Lonely Island Pools Pty Ltd owes a non-delegable duty to the Appellant and is therefore
liable in negligence and nuisance for the actions of its employees: Kondis v State
Transport Authority (1984) 154 CLR 672.
Carroll owed a non-delegable duty of care to the Appellant, and is therefore liable for the
negligence of Lonely Island Pools Pty Ltd: Burnie Port Authority v General Jones Pty
Ltd (1994) 179 CLR 520.
6.1. The nature of the work that Lonely Island Pools Pty Ltd was engaged to carry out on
the Carroll’s undertaking was a dangerous activity. Burnie Port Authority v General
Jones Pty Ltd (1994) 120 ALR 42, 61.
6.2. Carroll is liable for injury to others occasioned by methods incidentally employed by
the contractor in the course of its performance. The digging was necessarily involved
in Lonely Island Pools Pty Ltd’s performance: Stoneman v Lyons (1975) 8 ALR 173,
183(Stephen J); Torette House Pty Ltd v Berkman (1939) 39 SR(NSW) 156,
170(Jordan CJ).
6.3. The excavation of soil involved a real and foreseeable danger of encountering the
underground lines and severing them, and causing damage to the Appellant.
The trial judge erred in reasoning that he was bound by Sullivan v Moody (2001) 207
CLR 562 as opposed to Goldman v Hargrave [1967] 1 AC 645; (1966) 115 CLR 458.
7.1. The principle in Goldman v Hargrave is an affirmation of Hargrave v Goldman
(1963) 110 CLR 40 and has been adopted by Australian courts: Brodie v Singleton
Shire Council (2001) 206 CLR 512, 630; State of New South Wales v West & Anor
[2008] ACTCA 14 (5 September 2008) [184]-[189].
7.2. An action in nuisance may or may not be accompanied by an element of negligent
conduct: Goldman v Hargrave (1966) 115 CLR 458, 461.
The Respondents unreasonably and materially interfered with the ordinary use and
enjoyment of the Appellant’s property, and are therefore liable in nuisance as a person of
ordinary habits and sensibilities in the Appellant’s circumstances would consider the
gravity of the interference unreasonable: Don Brass Foundry v Stead (1948) 48 SR
(NSW) 482; Dimitrios Michos & Another v Council of the City of Botany Bay [2012]
NSWSC 625 (8 June 2012).
8.1. The negligent act is unreasonably offensive given the Appellant’s ordinary use of the
land as the use of underground cables by Belgravia was used as a selling point and is
a character of the neighbourhood. Painter v Reed [1930] SASR 295 (11 August
1930) [302]-[304] (Richards J).
8.2. The Appellant did not put his land to an abnormally sensitive use: Don Brass
Foundry v Stead (1948) 48 SR (NSW) 482; Network Rail Infrastructure Ltd v
Morris [2004] EWCA Civ 172; Sutherland v Attorney General of Canada (2001)
BCSC 1024.
8.2.1. The use of a telephone line is a feature of modern life, and the use of such a
line to conduct business is not an abnormally sensitive use by the Appellant.
9. The Respondents are liable for the creation of a nuisance as they had constructive
knowledge of harm being reasonably foreseeable, having dug deep in an area indicated to
contain important underground cables with the knowledge that any disturbance to central
telephone, electricity and gas cables would cause significant harm. The appellants did not
take reasonable steps to end the nuisance: Quick v Alpine Nurseries [2010] NSWSC 1248
(29 October 2010).
9.1. The Lonely Island employees ignored surface signs indicating cables and Carroll
failed to inform them of their presence and importance.
9.2. Both Respondents neglected their duty or obligation to take reasonable steps to
prevent or minimise the foreseeable risk of damage to the Appellant. Leakey v
National Trust [1980] QB 485; Yared v Glenhurst Gardens (2002) 10 BPR 19,485,
19,490.
9.2.1. They knew or ought to have known of the risk to the Appellant of a possible
disturbance created by the faulty installation of gas lines.
10. In the alternative, Carroll is liable for the continuation of the nuisance or the potential
nuisance: Robson v Leischke (2008) 72 NSWLR 98; Goldman v Hargrave (1966) 115
CLR 458, 465.
10.1.
Carroll had actual knowledge of the nuisance and failed to end the nuisance
within a reasonable amount of time.
10.2.
The nuisance continued from the third to the seventh day of the disturbance.
11. The Appellant is entitled to damages as a result of the private nuisance committed by
Lonely Island Pools Pty Ltd.
11.1.
Damages can be awarded for inconvenience to the Appellant’s use of land,
including a loss of amenity: Clifford v Dove [2006] NSWSC 314; Roberts v Rodier
[2006] NSWSC 282.
11.1.1. The internet access is directly connected to the Appellant’s income, and so
damages are recoverable for his inability to do so
11.2.
Nuisance not occasioning actual damage to the premises must be given
reasonable compensation: Oldham v Lawson [No 1] [1976] VR 654.
12. In the alternative, the Appellant is able to claim damages from day three to day seven of
the disturbance, notwithstanding prior tolerance. Orr v Ford (1989) 167 CLR 316 at 341
(Deane J).
12.1.
He had tolerated the interference for the first two days on the basis of Carroll
suggesting the interference would be resolved in two days
12.2.
Beyond the second day the Appellant no longer felt obliged to tolerate the
interference.

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