mixed. Judgment for the first to fifth plaintiffs against the defendant for $26,099; judgment for the seventh plaintiff against the defendant for $15,292.50; judgment for the defendant against the sixth...
Key principles
The defendant was liable in private nuisance for the escape of airborne hydrated lime from its occupation and use of No 47 which unreasonably interfered with the plaintiffs'...
Foreseeability of harm is a prerequisite to recovery of damages in private nuisance; the court applied foreseeability to the events and found actionable nuisance for the...
Exemplary (punitive) or aggravated damages require clear evidence of high-handed, contumelious or wanton conduct; absent specific evidence of site practices or deliberate...
Claims for specific heads of loss (e.g. replacement of roofing, electrical goods, furniture, caravan, aquarium fish, orchids) must be supported by admissible, expert or objective...
Issues before the court
Was the defendant liable in private nuisance for the escape of hydrated lime onto neighbouring properties?
Were exemplary or aggravated damages appropriate?
Plain English Summary
During February 2016 contractors employed hydrated lime at a site across the road from several residences. Wind carried lime dust into the neighbouring homes on at least three days. The Supreme Court (Fagan J) found the contractor liable in private nuisance. The court rejected most large claims for replacement of roofing, appliances, furniture, a caravan, fish and orchids because plaintiffs did not present admissible expert or objective evidence of permanent damage or correct quantum, and because plaintiffs unreasonably declined timely remediation offers. The judge awarded modest sums reflecting reasonable professional cleaning, insulation replacement and short-term loss of amenity: $26,099 to the first–fifth plaintiffs and $15,292.50 to the seventh plaintiff. The sixth plaintiff (not a registered proprietor) recovered nothing. Claims for exemplary damages failed for lack of evidence of wanton or high-handed conduct.
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Deep Dive
1,866 words · generated 17/06/2026
What is the correct approach to assessment and quantum of damages for nuisance-caused contamination?
Does a non-registered proprietor (sixth plaintiff) have standing to claim for damage to No 44?
Cited legislation
No linked legislation citations have been extracted yet.
What happened
In February 2016 JBG Contractors (defendant) prepared a cleared site at No 47 Princes Highway, Albion Park Rail. The contractor had approximately 12.8 tonnes of hydrated lime in 20 kg bags delivered and, over a short period, opened and spread the product across the site to stabilise the surface prior to wetting and compaction. On 19, 20 and 22 February 2016 (and disputedly on 18 February), wind carried a visible cloud of fine white particles across the highway to neighbouring residential properties at Nos 42 and 44. The particles settled on external surfaces, penetrated living spaces and roof voids, and were alleged to have contaminated furniture, appliances, roofing materials, vehicles, a caravan, aquarium fish and orchids. Some occupants temporarily relocated and complaints were made to Council and the defendant. Shellharbour Council inspected and directed cessation of work on 22 February 2016. The defendant accepted responsibility once it became aware and engaged cleaners and an insurer's loss adjuster; it arranged cleaning on 24–25 February and tendered offers to pay for cleaning, removal and replacement of insulation and modest accommodation. The plaintiffs sued in nuisance (and pleaded negligence and trespass). Liability in nuisance was not contested at trial; the hearing focused on assessment of damages, claimed exemplary damages and issues of mitigation and standing. Fagan J delivered judgment assessing limited damages to the first–fifth plaintiffs and the seventh plaintiff, rejecting many claimed heads for lack of proof, and entered judgment for the defendant against the sixth plaintiff.
Key times and actions:
18 Feb 2016: lime delivered; plaintiffs say spreading began.
19 Feb 2016: spreading produced visible dust drift across to Nos 42 and 44; Mr Fretwell telephoned the defendant's office.
20 Feb 2016: toolbox meeting at site records dust-control measures; further spreading occurred.
22 Feb 2016: Council inspected and directed cessation; defendant acknowledged responsibility and arranged cleaning.
Why the court decided this way
Legal foundation and findings:
Nuisance and occupier responsibility: Fagan J applied established nuisance principles (as summarised from Gales Holdings at the hearing) that an occupier who continues or adopts a state of affairs that interferes unreasonably with neighbours may be liable even in the absence of negligence (see the judgment's exposition of nuisance principles cited from Gales) (judgment text quoting Emmett JA). The court found the defendant to be the occupier of No 47 for the purpose of the works and that spreading lime during unfavourable wind conditions was conduct beyond reasonable and convenient use of the land. Hence the escape of lime was actionable nuisance on the dates established by the evidence.
Foreseeability and causation: The court emphasised the Cambridge Water principle that foreseeability of harm is a prerequisite to recovery of damages in private nuisance. The potential for lime powder to become airborne and drift under certain wind conditions is foreseeable; that supported liability.
Quantum and proof: For the damages assessment, the court applied orthodox rules: plaintiffs must prove both causation and quantum by admissible evidence. Where the claim was for cleaning and insulation replacement, there were contemporaneous contractor quotes (Steamatic) and insurer engagement; the court accepted a reasonable subset of those offers as compensatory. For most substantial replacement claims (roof sarking, gutters, roofing tiles, many electrical and household items, caravan, aquarium fish and orchids), the plaintiffs produced no expert or objective evidence demonstrating that hydrated lime had corroded or permanently damaged those items. The judge refused to award sums based on unsupported assertions or speculative contractor quotes lacking foundation as expert opinion.
Mitigation and reasonableness: The defendant promptly arranged cleaning and the insurer offered to pay for warranted cleaning and insulation replacement. The plaintiffs declined some offers and unreasonably refrained from having work performed. The court treated this as a failure to mitigate: plaintiffs cannot later recover hypothetical or ongoing losses attributable to their decision not to accept reasonable remediation.
Exemplary and aggravated damages: Plaintiffs sought exemplary damages alleging contumelious disregard by the defendant. Fagan J held that exemplary damages require strong evidence of wantonness or malice. There was no evidentiary basis to show the defendant persisted in work despite clear knowledge and actionable risk such that punishment was warranted. The toolbox meeting and the defendant's prompt post-complaint remediation undercut any claim of deliberate or reckless indifference.
Credibility: The court found significant credibility issues with some witnesses (notably Mr Fretwell) whose evidence the judge described as unreliable and prone to exaggeration. That assessment coloured acceptance or rejection of disputed assertions of damage, numbers of fish, dates and conversations (the court explicitly rejected some recollections as improbable).
Net effect: liability established, but only a modest measure of compensable losses proved. Damages were calibrated to reasonable remediation (cleaning and insulation works) and a modest allowance for loss of amenity over a brief period.
Before and after state of the law
Before:
The case stands within well-settled Australian nuisance law: an occupier's use of land that unreasonably interferes with another's enjoyment of land can attract liability; nuisance may be independent of negligence but often overlaps. Cambridge Water's foreseeability requirement for recoverable damages in nuisance was already established as a governing principle.
After:
Byron v JBG Contractors applies those principles in a common practical context: airborne dust from construction works. The decision reinforces that:
An occupier working with an inherently dispersible material must take reasonable measures (including timing and dust-control steps) to prevent drift when neighbours may be affected.
Recovery in nuisance remains constrained by evidentiary requirements: plaintiffs must prove causation and quantum with admissible, preferably expert, evidence for claims of permanent or corrosive damage.
Failure to mitigate by declining reasonable remediation can substantially reduce recoverable damages.
Claims for exemplary damages require affirmative proof of conduct deserving punishment; absence of such proof will defeat that head.
Thus the judgement is not doctrinally novel but is a practical application confirming evidentiary and mitigation limits in contamination/nuisance cases.
Key passages with plain-English translation
"I find that the defendant was the occupier of No 47 ... Those activities went beyond the reasonable and convenient use of No 47." (Judge's factual and legal conclusion)
Plain English: The contractor was in charge of the site and the way they used the land (spreading dry lime in conditions permitting drift) was unreasonable; they were responsible when the dust left their land.
"An actionable nuisance was committed on each of 19, 20 and 22 February 2016."
Plain English: The court found that the lime dust that drifted on those specific days was enough to form a legal nuisance that could be compensated.
"There is no evidence before the Court that this material is corrosive ... The only effect ... is that it settled in the form of a film of fine white dust ... requiring that it be wiped off and/or vacuumed up."
Plain English: Expert or reliable evidence did not show that hydrated lime caused corrosive, permanent damage to materials; it mainly left dust that could be cleaned.
"For exemplary damages the plaintiffs would have to satisfy the Court that the defendant's conduct merited punishment ... No such evidence was tendered."
Plain English: To get punitive damages the plaintiffs needed clear proof of deliberately harmful or reckless behaviour; they did not provide it.
On mitigation: the insurer's offer and the court's acceptance of reasonable remediation as the correct measure.
Plain English: The court treated the insurer's realistic cleaning and insulation replacement offers as the appropriate measure of compensation; rejecting speculative claims for extensive rebuilding when there was no proof it was needed.
What fact patterns trigger this precedent
The decision is directly relevant to nuisance claims involving:
Fugitive dust, powders or other particulate emanations from building or demolition sites that can drift under foreseeable wind conditions and temporarily invade neighbouring homes.
Situations where the occupier had effective control and could have adopted reasonably available measures (timing, wetting, suspension on windy days, on-site dust control) to limit drift.
Cases where plaintiffs allege broad, expensive remedial work but lack contemporaneous expert evidence of permanent material damage; the decision warns that such speculative claims are likely to fail.
Claims where plaintiffs refuse reasonable remedial offers from the defendant/insurer; the court will weigh mitigation and may award only the reasonable remediation costs even if those works were not actually performed.
Requests for exemplary damages arising from environmental or nuisance events where the alleged conduct is negligence or miscalculation rather than deliberate or malicious acts; the decision emphasises the high threshold for punishment.
Practitioners should therefore ensure early sampling and expert inspection of roof voids, building materials and affected goods, obtain dated photographic and written contemporaneous complaints, and accept or test remediation offers promptly to avoid mitigation issues.
How later courts have treated it
As this is the controlling judgment itself (NSWSC, 2020), later appellate or trial courts will treat it as persuasive authority on facts of dust/particulate nuisance and on evidentiary expectations for quantifying contamination damage. It reinforces established authorities (Gales Holdings, Cambridge Water) rather than changing the law. Future courts will likely cite Byron v JBG Contractors when:
Assessing recoverable heads of damage for airborne contamination where contamination was mainly superficial.
Considering mitigation: this case provides an example where rejecting a warranted industrial clean was held unreasonable and limited recovery.
Evaluating claims for exemplary damages in environmental nuisance contexts.
(Users should search subsequent reported judgments citing Byron to see appellate treatment after 2020.)
Still-open questions
Degree of technical proof required for particular chattels: The court refused claims for electrical goods, furniture, caravan, and roofing because no expert evidence of corrosive damage was adduced. A live question remains: what minimal form of expert or forensic testing will satisfy courts that particulate contamination caused permanent harm to particular materials? The decision indicates tests and measurements contemporaneous with the event are highly persuasive.
Quantifying diminution in property value: The court rejected an unsupported valuation discount. The case underscores the need for valuation evidence based on substantiated remediation assumptions. How courts calibrate hypothetical purchaser discount where remediation is unresolved remains fact-sensitive.
Use of Jones v Dunkel and adverse inferences: The judgment restrains overuse of Jones v Dunkel when the plaintiff bears the onus to prove the critical facts. The precise circumstances in which an adverse inference can be decisive in nuisance remediation disputes remain a nuanced evidentiary question.
Scope of occupier obligations for temporary works: The court observed practical mitigation measures (timing with wind, wetting), but did not prescribe a rule about which measures are objectively required in all cases. Future cases may delineate the standard of care or reasonableness for occupiers using dispersible materials on a per-case basis.
Exemplary damages in environmental nuisance contexts: The court reaffirmed a high threshold. Whether systemic environmental non-compliance or regulatory indifference could, in a different factual matrix, give rise to exemplary damages is an open factual arena.
Practical takeaway: litigants in contamination/nuisance disputes must prioritise contemporaneous sampling, expert reports on materials and pH effects, clear documentary records of complaints and remediation offers, and must carefully consider mitigation steps and acceptance of reasonable remedial proposals.
Judgment (28 paragraphs)
[1]
Judgment
This is a claim in nuisance for the drift of airborne hydrated lime from a building site onto residential properties. The first to fifth plaintiffs are joint registered proprietors of two conjoined residential units on a single title at No 42 Princes Highway, Albion Park Rail, in the Illawarra. The seventh plaintiff, Mr Fretwell, is the registered proprietor of No 44, a single detached dwelling. The sixth plaintiff was married to Mr Fretwell and at relevant times lived with him and their two children at No 44.
The defendant is a demolition and civil works contractor. In February 2016 it was preparing a cleared building site on the opposite side of the Princes Highwayfrom the plaintiffs' residences, at No 47. For the purpose of binding and stabilising the soil at the surface of the site the defendant had approximately 12.8 tonnes of hydrated lime in 20kg bags delivered on 18 February 2016. On either 18 or 19 February 2016 the defendant's employees commenced to open the bags into an excavator bucket and to distribute the lime over the site and mix it into the soil. The next stage of the work was to wet the surface down using a water cart and then compact the soil with a roller.
The Princes Highway runs from north-west to south-east at this location. Number 47 is on the north-east side. On Friday, 19 February 2016, when the defendant's employees opened bags of lime and spread the material across the surface of the site, a north-easterly breeze carried an airborne a cloud of fine white particles across the highway to Nos 42 and 44. The lime settled on the exterior of the two residences, penetrated the living spaces, settled upon the surfaces of furniture and other personal possessions and infiltrated the roof and wall cavities. There was a similar escape of airborne hydrated lime onto the plaintiffs' properties on Saturday 20 February and on the morning of Monday 22 February, when the work of spreading the lime at No 47 continued. There is a dispute as to whether the work had commenced on Thursday 18 February and whether there was also an escape of lime on that day.
The proceedings have resolved into an assessment of damages. The defendant does not dispute that the lime escaped onto the plaintiffs' land on three days. It does not dispute that it is liable in nuisance. The elements of the tort of negligence were summarised by Emmett JA in Gales Holdings Pty Ltd v Tweed Shire Council [2013] NSWCA 382 in the following paragraphs:
[131] A nuisance is either a continuous or recurrent state of affairs. An occupier of land will be liable for continuing a nuisance if, with knowledge or presumed knowledge of the state of affairs, the occupier fails to take reasonable steps to bring it to an end despite having had ample time to do so (Hargrave v Goldman (1963) 110 CLR 40; [1963] HCA 56 at 59-61). There will be nuisance if a state of affairs created, adopted or continued by an owner or occupier of land harms another person's enjoyment of land occupied or owned by that other person, unless the first person's conduct involves no more than the reasonable and convenient use of its own land (Hargrave v Goldman at 62).
[132] That is to say, nuisance is a wrongful interference with another's enjoyment of land by the use of other land occupied or owned by the alleged wrongdoer. However, an owner or occupier of land is not an insurer. There must be more than mere harm being done to another's enjoyment of land. The harm must be caused by the alleged wrongdoer's use of its own land. The word use connotes that a degree of personal responsibility is usually required, even though a deliberate or negligent act is not. A deliberate or negligent act will however be sufficient. A balance must be maintained between an owner or occupier's right to do what it likes with its land and a neighbour's right not to be interfered with. The proper test to apply in most cases is what is reasonable, according to the ordinary usages of a particular society. While negligence is not essential, fault of some kind is almost always necessary (Elston v Dore (1982) 149 CLR 480; [1982] HCA 71 at 487-488).
[138] [E]manations of any kind constitute a nuisance if they create an inconvenience materially interfering with the ordinary physical comfort of human existence, according to plain, sober and simple notions among ordinary people. Regard must be had to the character of the locality in which the inconvenience is created and the standard of comfort that those in the locality may reasonably expect. The reasonable use of land may occasionally cause annoyance about which neighbours cannot reasonably complain (see Don Brass Foundry Pty Ltd v Stead (1948) 48 SR (NSW) 482 at 487). In considering whether an inconvenience is unreasonable, allowance must be made for reasonable give and take. […]
[139] Nuisance covers a variety of tortious acts or omissions and the relevant conduct need not be negligent. For example, an occupier of premises may be liable for emitting fumes or noise, even though it used the utmost care in the use of its premises. Since the amount of fumes or noise that can lawfully be emitted is a question of degree, the occupier may simply have miscalculated what was justifiable in the circumstances. On the other hand, nuisance by emission may be the result of negligent conduct. Often the same facts will establish liability both in nuisance and in negligence. Although negligence is not necessary, fault of some kind almost always is. Fault generally involves foreseeability (Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty Ltd [1967] 1 AC 617 at 639).
I find that the defendant was the occupier of No 47 at the relevant time, for the purpose of preparing the site, and that the escape of the lime dust resulted from activities that were the responsibility of the defendant. Those activities went beyond the reasonable and convenient use of No 47. It would have been possible for the defendant to prevent the escape of airborne lime powder by timing the work strictly in accordance with the most favourable wind conditions. The defendant could have waited for perfectly still days or parts of days. That might have resulted in prolongation of the work and may have required that it be undertaken very early each morning or during a short period in the late morning of each working day, between the land breeze dying away and the sea breeze coming in. The defendant exhibited less than reasonable care by proceeding with the work at the times when it did.
One of the plaintiffs' witnesses suggested that containment could have been effected by watering down as the lime was being spread. I am not able to conclude whether this was possible or whether the lime had to be worked into the soil while dry, followed by wetting down of the mixture afterwards. In the manner in which the work was performed by the defendant on the site, the escape of the dust took place during the spreading and mixing-in phase.
The lime dust blown across the highway from the defendant's work site harmed the plaintiffs' enjoyment of the properties owned and occupied by them. The locality may be characterised as generally residential, along the south-west side of the Princes Highway, and light industrial or commercial along the north-east side. The occupiers of residences such as Nos 42 and 44 were entitled reasonably to expect that their homes should not be invaded by airborne, alkaline lime dust. All of the elements of an actionable nuisance were present from the first intrusion of the lime onto the plaintiffs' properties, on whichever date that occurred, 18 or 19 February 2016. An actionable nuisance was committed on each of 19, 20 and 22 February 2016.
Unnecessarily, as it seems to me, the plaintiffs have also pleaded their case in negligence and in trespass. The defendant admits that it owed a duty of care and that it was negligent. The plaintiffs contend that the formulation of the measure of damages as between the three possible causes of action is slightly different but I do not see that that makes any difference in the present case. The difficulty for the plaintiffs in establishing any significant quantum of damages lies at the factual level of proving that their properties and the chattels within them were physically damaged by the lime, as they allege. Otherwise, the only relevant limiting principle is that "foreseeability of harm is … a prerequisite of the recovery of damages in private nuisance": Cambridge Water Co v Eastern Counties Leather Plc [1994] AC 2 264 at 301 (Lord Goff); Gales Holdings Pty Ltd v Tweed Shire Council at [142] (Emmet JA) and [277]-[279] (Leeming JA).
The plaintiffs claim exemplary damages. They assert that the defendant acted "in high-handed and outrageous disregard of the plaintiffs' rights and showed a conscious and contumelious disregard of the plaintiffs' rights". In support of this they contend that the spreading of lime commenced on 18 February; that from 19 February the defendant was aware that it had drifted across the highway to the plaintiffs' properties and that the defendant continued the work conscious that airborne lime powder was escaping from the site. These allegations of disregard for the plaintiffs' interests are contested.
The aspect of the litigation that occupied most of the hearing time and that will require most attention in these reasons is the detail of the plaintiffs' individual heads of damage. In general terms the categories of damages claimed are the cost of cleaning the residences, both inside and out; the cost of temporary accommodation while cleaning is undertaken and the cost of replacement of allegedly damaged roofing materials, electrical and sporting goods and furniture. The first to fifth plaintiffs claim the value of a caravan that they allege was permanently damaged. The sixth and seventh defendants claim for the loss of aquarium fish and orchids. The seventh defendant alleges that he sustained considerable loss of income as a result of the contamination of No 44.
In 2016 Ms Byron, the first plaintiff, lived with her husband and children in Unit 2 of No 42, the unit at the rear of the property furthest from the highway. Unit 1 was tenanted. The second to fifth plaintiffs are Ms Byron's brothers and sisters-in-law, who reside in Italy. The defendant has taken no point of distinction between damage to the real property that may be claimable by the first to fifth plaintiffs jointly and damage to personal items that may represent losses of the first plaintiff, Ms Byron, only. Throughout the proceedings it has been accepted that the first five plaintiffs are entitled to judgment in their favour for whatever is the correct assessment of damage to either real or personal property. On the other hand, with respect to the penetration of lime dust into No 44, there is an issue as to whether any of the alleged losses are claimable by the sixth plaintiff, who has never been a registered owner of the property.
Hydrated lime is the common name for Calcium Hydroxide. It is available for industrial applications, as in this case, in the form of a fine white powder. Hydrated lime is an ingredient of bricklayers' mortar and is widely used as such. According to a material safety data sheet tendered by the defendant, the substance is strongly alkaline and may cause drying and irritation of human skin. If it is inhaled or ingested or if it makes contact with the eyes it may cause irritation of human tissue, or burning if it is in sufficient concentration. Hydrated lime is "neutralised to Calcium Carbonate by absorption of atmospheric Carbon Dioxide". Throughout the evidence of Mr and Mrs Fretwell they have endeavoured to characterise hydrated lime as a substance highly toxic to human beings and constituting an extreme hazard, even in very small quantities. Such limited objective evidence of the nature of hydrated lime as has been given in the case does not bear this out.
There is no evidence before the Court that this material is corrosive to any of the metals, masonry products, plastics, ceramics, fabrics or other materials with which it may have come in contact at either of the plaintiffs' residences. There is no evidence of any corrosive effect having been observed. The only effect of the escape of the airborne lime powder onto the two properties, so far as the evidence goes, is that it settled in the form of a film of fine white dust on exposed surfaces, requiring that it be wiped off and/or vacuumed up. The evidence establishes that vacuum cleaners are available with filters capable of trapping particles as small as a fraction of a micron. These are known as High-Efficiency Particulate Air (HEPA) vacuum cleaners and they are effective to remove hydrated lime powder.
[2]
Chronology of events
Ms Byron has deposed that she first observed hazy air over her property and settlement of white dust on her car from about 8:00am on Thursday, 18 February 2016. A little later in the morning she saw that workmen in protective clothing were spreading white powder on No 47. This continued during the day. She described the conditions as "windy". Ms Byron says that she contacted Shellharbour Council on 18 February 2016 and reported what was occurring. She was told that a responsible person would call her back but no one did. She says that the airborne white powder caused irritation of her skin and throat.
According to Ms Byron there was a similar escape of white powder from the site, again in "windy" conditions, on Friday, 19 February 2016. On the Saturday Ms Byron and her family travelled to Sydney to escape the airborne white powder. They returned on Sunday and found that it had settled upon the ground outside the house and upon surfaces throughout the living areas inside. In about the middle of the day on Monday 22 February 2016 an official of Shellharbour Council attended at No 47 and directed the defendant to cease the work that was being undertaken on the site. The official and Mr Green, the defendant's general manager, then spoke to Ms Byron. Mr Green apologised for the escape of the material.
The sixth plaintiff, Ms R Fretwell, has deposed that the drift of white dust across to No 44 Princes Highway commenced at about 9:00am or 10:00am on Thursday 18 February 2016. It caused irritation to the inside of her mouth. She could see work being done on No 47 and white powder rising from the site. It entered her house and settled on furniture and other surfaces. Ms Fretwell says that she phoned the Environment Protection Agency (EPA) and made a complaint about what was occurring. The EPA referred her to the Council, whom she also phoned. She was told that someone would call her back but no one did.
On 19 February 2016 Ms Fretwell says that the escape of the white dust onto her property continued from 7:00am until 4:00pm. On this day she observed that the workmen were wearing full protective bodysuits with hoods and masks. She says that she telephoned Council "a few times" on this day and was told that someone would call her back. When she received no return call Ms Fretwell phoned WorkCover. The person she spoke to at that agency said the matter would be looked into but Ms Fretwell heard nothing further.
[3]
First to fifth plaintiffs' damages in respect of No 42
The first to fifth plaintiffs' schedule of claimed damages is as follows:
1 Cleaning, including car and boat on trailer, with detailing
21,686.50
2 Removal of insulation from roof void, vacuum cleaning of the void and placement of new insulation
11,648
3 Alternative accommodation during cleaning and other work
4,016
4 Removal of roof sarking and replacement 39,700
5 Removal of roofing and gutters 22,500
6 Damaged electrical items, white goods, electronic goods, camera
34,786
7 Damaged furniture and furnishings 38,919
8 Damaged sporting equipment 9,452
9 Removal and storage costs 5,400
10 Damaged caravan 53,000
Total 241,107.50
[4]
2 Removal and replacement of insulation, cleaning roof void - No 42
The defendant arranged for No 42 to be cleaned internally and externally on 24 February 2016 at the defendant's cost. Ms Byron declared that she was not satisfied with the results. The defendant caused further cleaning to be undertaken on 1 March 2016. Ms Byron was still not satisfied. Ms Byron then arranged for her own cleaning contractor, Steamatic, to submit a quote. Steamatic's representative, Mr Thistlethwaite, attended on 2 March 2016 and was asked to inspect Unit 2, only. On 3 March 2016 Mr Thistlethwaite provided a report to Ms Byron in which he said that there was "a dusting of a white powdery substance" in all areas of Unit 2. The report was accompanied by a quote of $11,315 plus GST ($12,446.50) to clean and decontaminate the property. Mr Thistlethwaite assumed that the white powdery substance was hydrated lime, on the basis of what Ms Byron told him, but he did no testing
The scope of works in this quotation included use of a HEPA vacuum; cleaning the external surfaces of the house such as brickwork, windows and walkways; cleaning and decontaminating all rooms and contents; cleaning and decontaminating both the interior and exterior of a garage on the property and a caravan parked in the backyard, including cleaning the contents; cleaning and decontaminating toys, a trampoline and a swingset in the backyard. Steamatic subsequently provided a quote of $8,000 plus GST ($8,800) for the same scope of work in respect of Unit 1.
Steamatic's quotation of 3 March 2016 incorporated its terms and conditions, including the following warranty (extracted so far as relevant):
Steamatic warrants all of our works for a period of one year following completion of the work. If workmanship issues re-occur within the warranty period, Steamatic, at its option, will either:
(i) Rework and repair as necessary at its sole expense; or
(ii) Refund the service price charged for our services.
In about early March 2016 the defendant referred Ms Byron's ongoing complaints to its insurer. Mr McWalter was appointed as loss adjuster. He received a copy of the Steamatic quote of 3 March 2016 and arranged to inspect the property on 16 March. He met with Ms Byron on that date and she listed to him numerous categories of payment that she required, including "accommodation for 4 days, fuel money to-from school", replacement of the trampoline and swingset; replacement of blinds, "loss of wages for 3 weeks".
[5]
3 Alternative accommodation during cleaning - No 42
The first to fifth plaintiffs' claim for the cost of alternative accommodation is calculated on the basis of nine nights at $418 per night. The number of nights is derived from estimates of the number of days required for cleaning the residence (Item 1), removing and replacing the insulation and cleaning the roof void (Item 2) and removing and replacing the roof sarking (Item 4). Items 1 and 2 have never been carried out and I have concluded that there will be no requirement to have them carried out in the future. Item 4 is not work that is required to be done as a result of the escape of lime onto the property, for reasons given below. There is therefore no justification for awarding the cost of alternative accommodation as an element of the first to fifth plaintiffs' damages. I do not consider it reasonable to add any such amount to the unspent value of cleaning work, which I have taken to be a fair measure of the temporary loss of full enjoyment of the property.
[6]
4 Removal and replacement of roof sarking - No 42
The roof of No 42 is tiled and it is under laid with sarking, a waterproof sheet material intended to prevent ingress of any water that may penetrate through cracks in the tiles or gaps between them. It is to this material that the first to fifth plaintiffs' Item 4 is directed. The quote obtained by Ms Byron from Attic Vac on 19 May 2016 included the following statements:
Whilst we cannot see the dust on the sarking - we find it highly probable that the sarking is actually contaminated - as it would have had to seep through this insulation/sarking to end up in the roof void in the first place
Attic Vac's price for removal of the sarking was $7,700 and for "retrofitting" replacement material" $32,000. This work would require removal and then replacement of the tiles. An estimate of eight days was given. The quote is not admissible as expert opinion that the work is necessary as a result of lime contamination. It has not been tendered as such. The qualifications of the person who prepared it are not stated. I treat it as evidence of the contractor's view about contamination, which is irrelevant, and of the price at which he would do the work described. It is not evidence of the correctness of the contractor's opinions. There is no admissible evidence that the sarking has been in any way affected by contact with lime dust, or that there is any residual lime on it, or that for any other reason it requires replacement. Nothing should be allowed for Item 4.
[7]
5 Removal and replacement of roofing and gutters - No 42
With respect to Item 5, there is no expert opinion evidence to the effect that any part of the roofing or gutters of the residence or garage at No 42 was corroded or permanently contaminated or otherwise detrimentally affected by contact with airborne lime as a result of the events of 18-22 February 2016. In the absence of such evidence there is no basis for including in the assessment of the first to fifth plaintiffs' damages any amount for removal of roofing material or gutters from the site. Nothing should be allowed for Item 5.
[8]
6 Damaged electrical and other goods - No 42
Item 6 in the first to fifth plaintiffs' schedule of damages comprises the new price of every appliance that Ms Byron, implicitly, alleges was in the home, including two freezers, three fridges, two 55 inch televisions and one 65 inch, two freestanding electric stoves and four air-conditioning units. The high point of the evidence in support of this claim appears to be Ms Byron's lay evidence as follows:
We don't know the effects of the lime. I'm sure the cleaners probably wouldn't have gone on the back of my fridge and TV to sort all that out, and my electricals through my cavities in the walls. We don't know what the long-term effect of lime is and there was no assurance given to me or my family that there'd be no long-term effect.
[They] can't take off the back of my TV and clean all my electricals. I mean there's air pockets where the lime has been able to get into. […] Well it's not rocket science. If it's got into everything else.
There is no opinion evidence from any qualified person to the effect that any of the goods sought to be replaced were in any way adversely affected by contact with lime powder. Ms Byron's opinion is not admissible evidence of causation of such damage. Nothing should be allowed for Item 6.
[9]
7 Damaged furniture and furnishings - No 42
Item 7 is made up of the replacement cost of what appears to be every piece of furniture said to have been in the Unit 2 in February 2016, plus over $8,700 for replacement of all blinds throughout the residence. The claimed replacement cost of furniture includes $8,686 for a lounge suite and over $16,000 for five beds. Once again, the plaintiffs have adduced no evidence of any qualified person to establish that these items were damaged to any extent, let alone rendered permanently unusable so as to require replacement, as a result of contact with airborne lime. There should be no allowance for Item 7.
[10]
8 Damaged sporting goods - No 42
Item 8 includes the cost of replacement of a trampoline, a treadmill, a fitness cross trainer and a swingset. The absence of admissible expert opinion supporting causation of permanent significant damage to these items means that no allowance should be made for Item 8.
[11]
9 Removal and storage of personal items - No 42
$5,400 is claimed by the first to fifth plaintiffs under Item 9 of their schedule but nothing should be allowed. There is no evidence to demonstrate that the plaintiffs have any need to remove goods from No 42 or to place them into storage as a result of the contamination of the property by lime dust in February 2016. Ms Byron has refrained from having professional cleaning of the property and contents carried out over four and a half years and she has lived in the property during that time. I am not satisfied that such cleaning is now necessary or that it could achieve anything, so long after the event. There is therefore no occasion for personal items to be removed from the property and placed in storage. There is no evidence to demonstrate how such removal and storage would be useful in relation to cleaning the property or the goods, in any event. It is not apparent why movable items could not be cleaned on the premises, in conjunction with cleaning the interior.
[12]
10 Damage to caravan - No 42
No component of damages should be allowed for Item 10 of the first to fifth plaintiffs' schedule because no evidence has been adduced to show that any damage was done to the caravan at No 42 by contact with lime dust. Insofar as surfaces of this unit may have been contaminated with the dust, the Steamatic quote of 3 March 2016 allowed for professional cleaning and I have included the amount of that quote in the assessment of damages under Item 1.
[13]
Diminution in value of the house at No 42
The first to fifth plaintiffs tendered a real estate valuer's report in which the opinion was expressed that a prospective purchaser of No 42 would discount the price that he or she would be willing to pay for the property by $115,000 to allow for "the unknown extent of the presence of the hydrated lime", the known and unknown costs of rectification and ancillary costs of rectification such as loss of rent from the units and/or the cost of alternative accommodation for an owner occupier. This opinion was unsupported by substantiated assumptions concerning the extent of lime contamination or by expertise of the valuer with respect to the cost or duration of remedial work. It was unsupported by any comparable sales evidence demonstrating the extent to which a prospective purchaser might discount the price to be paid for a property in like circumstances. The report was unfounded and inadmissible and I rejected it. At the end of the proceedings there was no evidence to support any component of damages for diminished value of the property.
[14]
Total damages for the first to fifth plaintiffs
I assess the first to fifth plaintiffs' damages in the total sum of $26,099, on the basis stated at [49]-[51] above.
[15]
Sixth and seventh plaintiffs' damages in respect of No 44
There is an issue as to whether any of the losses alleged by the sixth and seventh plaintiffs' are actually claimable by the sixth plaintiff, who has never been a registered proprietor of No 44. On the view that I take of extent of the damages demonstrated by the evidence, no part of those damages is claimable by the sixth plaintiff. The schedule of the sixth and seventh plaintiffs' claims is as follows:
1 Cleaning, including car and boat on trailer, with detailing
10,156.30
[16]
2 Removal of insulation from roof void, vacuum cleaning of the void and placement of new insulation
7,040
3 Alternative accommodation and associated travel costs
89,815.70
4 Removal of roof sarking and replacement 34,000
5 Removal of roofing and gutters 17,900
6 Damaged electrical items, white goods, electronic goods, camera
31,272
7 Damaged furniture and furnishings 14,904
8 Aquarium fish 60,000
9 Orchids 7,500
Sub-total 272,588
10 Mr Fretwell's lost income Not quantified
[17]
2 Removal and replacement of insulation, cleaning roof void - No 44
The defendant arranged for the seventh plaintiff's property to be professionally cleaned on 25 February 2016. Mr Green attended the property later on the same day. According to Mr Green, Mr Fretwell told him that it was up to his wife to say whether she was satisfied with the work that had been done. Mr Green has deposed that Ms Fretwell said she was satisfied and he then requested her to sign an acknowledgement of this, which she did. Ms Fretwell now says that her husband was not present when she was asked to sign and that she felt "intimidated" and only executed the document "so that [Mr Green] and the people with him would leave me alone". Mr Green denies that any pressure was applied and says that Mr Fretwell was in attendance at the time of signing. Mr Murray corroborates Mr Green in this respect.
Mr Fretwell's version is that Mr Green told him he had to sign the acknowledgement but he refused to do so, at which Mr Green asked Ms Fretwell to sign. Mr Fretwell claims that his wife "appeared intimidated by the number of people who were with Bud Green" and that she signed in those circumstances. That is a highly improbable scenario and I reject it. I find it inconceivable that, after having refused to sign the acknowledgement himself, Mr Fretwell would have allowed his wife to do so whilst she appeared intimidated. In giving his oral evidence Mr Fretwell presented as a contentious and forceful person. He is not the sort of man that would have allowed events to unfold as he now describes.
I do not accept that Ms Fretwell felt any duress. In these proceedings she has joined her husband in making grossly exaggerated monetary claims that she must know, as a matter of common sense, are unsustainable. I am satisfied that she has misrepresented what occurred on 25 February 2016 because she perceives that the signing of the acknowledgement creates a difficulty for those claims. Mr Fretwell has in my view misrepresented the circumstances in which his wife signed the document for the same reason.
I find that neither Mr Green nor Mr Murray said or did anything to apply pressure or had any perception that Ms Fretwell felt intimidated. It is entirely against the probabilities that either of these men would have put Ms Fretwell under duress to sign the acknowledgement. The escape of the lime dust was a relatively minor event so far as they were concerned. As a civil engineer Mr Green was familiar with hydrated lime, it being a building material in common everyday use for purposes such as that to which his men were applying it in February 2016. The material safety data sheet does not suggest that it is not toxic to human beings in low concentrations such as those at which some of the powder drifted to the south-west side of the Princes Highway. Mr and Mrs Fretwell have endeavoured in these proceedings to portray the event as an environmental disaster, rendering their home permanently uninhabitable. It was nothing of the sort and I am satisfied that it was not seen in that light by either Mr Green or Mr Murray.
[18]
3 Alternative accommodation and associated travel costs - No 44
As the cleaning work and replacement of insulation has never actually been carried out, there is no reason to include in the assessment of damages any amount for alternative accommodation, being Item 3 in the schedule. While the sixth and seventh defendants and their children were living in the Lightning Ridge area, for reasons independent of the condition of the house at No 44, the cleaning and insulation work could have been carried out.
In support of Item 3 Mr and Mrs Fretwell have tendered evidence of expenses of travelling to Grawin and to Lightning Ridge, the cost of motor vehicle repairs, the amount of rental expenditure on leased premises in Lightning Ridge, charges for motel and similar accommodation incurred during transits between Lightning Ridge and Sydney and the Illawarra Region and many other expenses. None of these costs have been incurred as a result of the nuisance for which the defendant is liable. There should be no allowance in the damages for Item 3.
[19]
4 Removal of roof sarking and replacement - No 44
When Ms Byron obtained a quote from Attic Vac for replacement of the sarking to her roof, the contractor also quoted $36,000 for doing the same work at No 44. The contractor made his inspection of No 42 in about mid-May 2016 and his quote is dated 19 May 2016. At that time No 44 was unoccupied. I infer that the contractor would not have been able to inspect the roof space of No 44, as would be necessary in order for him to ascertain whether sarking was present and, if so, its condition.
The defendant's expert, Mr Chambers, inspected the property on 21 March 2019. Mr Fretwell was present. I accept Mr Chambers' oral evidence that his examination from within the roof void showed that the tiled roof of No 44 is not sarked. Accordingly, nothing should be allowed for Item 4.
[20]
5 Removal of roofing and gutters - No 44
With respect to Item 5, Mr Fretwell has annexed to one of his affidavits a photograph of the roof of his house that he says was taken on 20 April 2018. It depicts the colour of the terracotta tiles as a brownish orange, apparently somewhat darkened from the original colour. He has also annexed a photograph that he says is of the same roof taken before the property was affected by the lime dust. The tiles in this photograph appear to have a brighter and lighter colour of pale red.
Mr Chambers has compared the two photographs and has identified to my satisfaction features that clearly establish they are not of the same roof. Further, he has produced dated satellite photographs from before and after late February 2016 showing no change in the appearance of this roof as seen from above. I am comfortably satisfied that Mr Fretwell's evidence about these photographs is untruthful. They provide no evidence that the roof tiles were damaged by contact with lime in February 2016. Nor is there any other evidence that damage to the tiles was caused at that time. There should be no allowance in the damages for replacement of the roof tiles.
The sixth and seventh plaintiffs' claim under Item 5 includes replacement of the skillion roof at the rear of the property. This is constructed of corrugated iron. Mr Chambers' before-and-after aerial photographs show that this roof was heavily corroded prior to the escape of airborne lime dust in late February 2016. Further, there is no evidence that corrugated iron roofing material would be corroded by hydrated lime settling upon it. There is no evidence of any damage to the gutters of the house or that any such damage was or would be caused or contributed to by contact with lime. Accordingly, there should be no allowance in the assessment of damages for any amount under Item 5.
[21]
6 Damaged electrical and other goods - No 44
As with the first to fifth plaintiffs' claim in respect of No 42, there is no evidence that the infiltration of hydrated lime dust caused permanent damage to any of the electrical or other goods that were located within No 44. There is no basis for allowing any part of the $31,272 claimed under Item 6 in the sixth and seventh plaintiffs' schedule.
[22]
7 Damaged furniture and furnishings - No 44
In relation to the sixth and seventh plaintiffs' claim for the cost of replacing furniture and furnishings, being Item 7 of the schedule, again there is no evidence to establish that the infiltration of hydrated lime caused these items any lasting damage, let alone sufficient to justify the cost of complete replacement. There should be no allowance for this item.
[23]
8 Aquarium fish - No 44
Mr Fretwell has produced photographs of three large fish tanks, each divided into four compartments, that were arranged one above the other under the skillion roof at the rear of No 44. From the photographs, each compartment appears to be approximately 0.5m x 0.5m x 0.5m, or 0.125m3. These dimensions can be estimated by comparison to the width of the boards of the floor upon which the tanks are standing and from the height of the ceiling. Mr Fretwell has deposed that each compartment was 1m x 1m x 0.8m, which clearly they were not.
Mr Fretwell deposed that there were about 1,000 fish in each compartment. Upon consideration of the photographs of the density of the fish population prior to February 2016, annexed to Mr Fretwell's affidavit, I do not accept that 1,000 fish were maintained in any of these compartments at the time of the lime infiltration. He has deposed that there were also 1,000 fish in another larger tank, measuring 2m x 2m x 1m. There is no photograph or other objective evidence that would establish the dimensions of that tank. There is no evidence from which to make an assessment of the number of fish that may have been in the 12 compartments and in the separate tank as at February 2016, independently of Mr Fretwell's assertions. I find his evidence too unreliable to act upon. Ms Fretwell was only able to say that there were "thousands" of fish, "too many to pinpoint". She said that there were both adults and young fish. Mr Fretwell confirmed that he was breeding the fish. The sixth and seventh plaintiffs claim for 12,000 fish at $5 each. I am not satisfied on the balance of probabilities that there were 12,000 fish. Nor can I be satisfied of any other number.
Ms Fretwell has deposed that prior to the escape of lime dust onto the property there would commonly be only one or two fish deaths per week, as a result of old age. She says that on Sunday, 21 February 2019 weed at the surface of the tanks turned from green to white and that about 60-70 fish were dead. She says that by early April 2016 all the fish had died. I reject that evidence because I am satisfied that by 7 March 2016 Ms Fretwell and her husband and children had departed the property and she was not present to observe any such mass extinction.
Mr Fretwell's account of the demise of the fish is quite different. He claims to have noticed a change in colour of the weed from green to white in "late February 2016". He asserts that "by about early March 2016 about 70% of the fish had died". He also says that they had all died "by about late March". I cannot accept that from him because, on his own account, he had by late March 2016 been absent from the premises for three weeks.
[24]
9 Orchids - No 44
Ms Fretwell has deposed that, as at 18 April 2016, she had about 100 orchids at her home. She says that she had been cultivating these plants for about five years. According to Ms Fretwell's evidence, between 18 and 22 February 2016 the orchids became "covered in white powder and they started wilting and drying as if they had been burnt". She says that she tried to wipe away the white powder and to keep the orchids watered but "by early April 2016 they were almost all dead". The orchids were growing in pots, some of which were outside and some under cover of the skillion roof. The only photographs of them are those produced by Mr Fretwell, taken two years later in April 2018. These photographs show numerous dead plants, as would be expected after the people who had been cultivating them had been absent for two years.
Ms Fretwell's evidence faces the immediate problem that she had left the property by 7 March 2016 and could not have been there to see that these plants "were almost all dead" a month later. As with the show guppies, there is no evidence that any measurements were taken in late February 2016 to establish whether alkalinity on the surface of the plants or in their soil had increased to a degree that might be attributable to the lime powder. There is no evidence of the degree of any such increase of alkalinity, nor of how an increased pH would affect orchids and at what level it would be fatal to them. Item 9 of the sixth and seventh plaintiffs' schedule is not established and there should be no allowance for it in the award of damages.
[25]
10 Mr Fretwell's lost income
Mr Fretwell asserts that he has suffered a significant loss of income as a result of the events of mid-February 2016. He is a qualified electrician but in February 2016 he had been unemployed for seven months. In July 2015 his father was very unwell and he left his employment to spend more time with him. Mr Fretwell's father passed away in September 2015. He has deposed that he intended to return to employment by about the middle of 2016. He had not resumed employment by the date of the hearing of these proceedings.
Mr Fretwell has attempted in various ways to make a connection between the events with which this case is concerned and his ongoing unemployment. First, he has said that he could not live in the house and could not afford any other accommodation within reasonable proximity of potential places of work. Secondly he gave evidence that his overalls and trade certificates are in the house and that he has been unable to enter to recover them and cannot work without them. In the course of cross-examination he offered a third mechanism of causation, namely, that the course of events has made him depressed and consequently unfit for employment.
As to the first of these explanations, I have already rejected the proposition that the house at No 44 became uninhabitable from late February 2016. It has not been uninhabitable at any time since. I am not satisfied that there is residual lime on the property to any significant extent, having regard to the results of Mr Schwartz' sampling and chemical analysis in early April 2016. Further, there is a break in causal nexus between lime contamination of the house and Mr Fretwell not occupying it. Even if there remains a material degree of such contamination I find that this could be satisfactorily removed at the relatively modest cost of having Steamatic professionally clean the property, including the roof void, and replace the insulation. In short, if continuing presence of lime dust has been any impediment to occupation of the house over these past four and a half years, that has been due to Mr Fretwell's unreasonable failure to mitigate damage.
The second explanation offered by Mr Fretwell is quite fanciful. There is no reason why Mr Fretwell could not have removed his working clothes and his certificates when he departed for Lighting Ridge. The evidence does not show that such minimal presence of lime as was indicated by Mr Schwartz' sampling and analysis would have made it dangerous for Mr Fretwell to return to the property and collect these items at any time. In any event, overalls are replaceable items and Mr Fretwell is sufficiently in possession of his trade certificates to have been able to annexe them to his affidavit sworn on 17 August 2018. Alternatively he could have obtained copies of these documents from his former employer or from the institutions that issued them. Mr Fretwell accepted this in cross-examination.
[26]
Total damages for No 44
For these reasons, I assess the damages payable to the seventh plaintiff at $15,292.50, calculated as set out at [84] above. These damages all relate to the effect of the lime dust upon the seventh plaintiff's real property. The sixth plaintiff has not established that the defendant is liable for any sum and there will be judgment for the defendant against her.
[27]
Orders
In accordance with these reasons, the following judgments will be entered:
1. Judgment for the first to fifth plaintiffs against the defendant for $26,099.
2. Judgment for the seventh plaintiff against the defendant for $15,292.50.
3. Judgment for the defendant against the sixth plaintiff.
When these reasons are published the defendant will be directed to file within seven days submissions and any additional evidence with respect to the appropriate order for costs. The plaintiffs will be directed to file submissions and any further evidence in response within a further seven days. A determination of the question of costs will be made on the papers. If the parties are able to agree upon the incidence of costs, then consent orders should be filed within seven days of the publication of these reasons.
[28]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 21 September 2020
Judgment for the first to fifth plaintiffs against the defendant for $26,099; judgment for the seventh plaintiff against the defendant for $15,292.50; judgment for the defendant against the sixth plaintiff. Costs to be determined on the papers.
On Saturday, 20 February 2016 Ms Fretwell says that work resumed on the site from 8:00am, with the same consequences of ongoing contamination of her property. She has deposed that she and her husband and children packed up and left the house at about lunchtime and went to stay in a motel. She could not recall whether they remained at the motel for one night or two but they did at least make a daytime visit to their property during Sunday 21 February. Ms Fretwell saw the Council inspector attend the site on the morning of Monday 22 February and became aware that he had directed cessation of work.
The seventh plaintiff, Mr Fretwell, has also deposed that the escape of airborne powder onto his property commenced on 18 February and continued throughout that day until, on his recollection, 5:00pm. Mr Fretwell claims that he also contacted the EPA and Council but he has given no account of what he reported to either agency or what he was told. Mr Fretwell says that he phoned the defendant's office at 11:00am and spoke to a receptionist. The terms of this conversation have not been deposed to. He says that he phoned again at about 1:00pm and was put through to a person named Richard, to whom he said that the defendant's men were "dropping lime all over the place at the moment and its covering all the houses and the road". According to Mr Fretwell, the man named Richard said he would come and see what was happening on the site. However, no one from the defendant's office attended to see the works until the following Monday.
Mr Fretwell says that the work of spreading white material on the site continued on Friday morning and through to 5:00pm that day. He has produced photographs of the work being undertaken, showing clouds of white dust rising into the air. Mr Fretwell says that these photographs were taken on both 18 and 19 February 2016 although they are not date stamped to enable this to be verified. He says that he contacted Council again on the Friday but he has given no account of the conversation. Mr Fretwell says that he also contacted the defendant's office once more during Friday morning, asked to speak to one of the managers and was told, "They are overseas but they will return on Monday". During the afternoon of Friday 19 February Mr Fretwell says that he was contacted by a person from the defendant's office who described himself as "just the treasurer" and said, "The managers will be back on Monday".
According to Mr Fretwell's recollection, on Saturday 20 February he and his family left their home at about 1:00pm to spend the afternoon and evening at his mother's house at Kiama. They returned to No 44 Princes Highway at about 9:00pm and found a substantial build-up of white powder outside the house and on interior surfaces. Mr Fretwell says that they stayed at the house both that night and on Sunday night. He believed the white powder was lime.
On Monday morning at about 11:00am Mr Fretwell spoke with the Council inspector when he attended to direct cessation of works. Mr Fretwell has deposed that when Mr Green came across the highway to speak with him and his wife and Ms Byron, he apologised for the escape of dust and said that that defendant would "have this cleaned up as soon as possible". On Mr Fretwell's version of this conversation Mr Green said he did not know what the material was and that "we're still looking into it". I do not accept that evidence. It would have been absurd for Mr Green to deny knowledge of what the material was in the presence of the Council inspector, who had just attended the site where the identity of the lime was no doubt perfectly obvious. There was no reason for Mr Green to be evasive about the material that was in use on the site. His immediate acceptance of his company's responsibility and engagement of cleaners for the two affected properties is inconsistent with the evasion that Mr Fretwell attributes to him.
The plaintiffs have not tendered any record from Shellharbour Council, EPA or WorkCover to confirm that any complaint was made by phone to any of those agencies on 18 February 2016, or any other day. The affidavits in which the three plaintiffs have deposed to the escape of lime dust were made by them two and a half years after the relevant events, in August and September 2018. None of these witnesses has produced any contemporaneous written record of the events. Nevertheless I am satisfied on the balance of probabilities that the spreading of lime commenced on 18 February. In cross-examination Mr Green said that he did not believe the work started until the next day but he was not on the site throughout the 18th and could not say definitively. The product was brought to No 47 on the 18th and no reason was suggested why the spreading of it should not have commenced immediately.
Richard Murray is the finance director of the defendant. He gave evidence that on the afternoon of Friday 19 February 2016 he was working in the company's office, remote from the work site, when he was informed that the receptionist had received a phone complaint about the escape of white dust from the site. Later in the afternoon he received a call from Mr Fretwell. This was the only phone complaint he received from Mr Fretwell. Having heard Mr Fretwell's description of what was occurring, Mr Murray told him that he was the finance manager and not involved in the work but that he would speak to the manager of the site. Immediately following this call Mr Murray phoned Mr Green and requested him to ascertain what was happening on the site and to contact Mr Fretwell.
Mr Green has deposed that on receipt of this call he phoned his operations manager, Mr Butterfield, and directed him to contact the site supervisor, Mr Lynch, to have work on the site stopped immediately. Mr Butterfield was directed to ensure that the site was safe in order to minimise the escape of dust and that work should continue the next morning, with appropriate precautions against escape of airborne lime. Mr Green directed that work should be suspended at the first sign of adverse weather that could lead to neighbouring properties being affected.
The defendant tendered a record of a "Toolbox Meeting" of the workmen on site that took place on Saturday 20 February 2016 before the recommencement of work. Mr Lynch was in attendance, together with four other employees. It was noted that the work for the day related to a Safe Work Method Statement (SWMS) designated as "0505-16-02 Lime Stabilisation of Sub-grade". The matters specifically discussed at the meeting included a number of points relating to safety of the men on site. There was also discussion of steps to be taken to prevent escape of dust, recorded as follows:
Dust control - water tanker wet down access road at regular intervals when required - regular wetting down job work area to keep dust down, if wind is [too] strong stop work immed.
I am satisfied that Mr Murray's recollection of the conversation with Mr Fretwell on Friday 19 February is reliable and accurate. He had no contemporaneous note from which to confirm the date, however he was able to work backwards from events of the following Monday. His phone records showed that he contacted a firm of cleaners on the Monday, to carry out cleaning work at the plaintiffs' properties. He was confident that his conversation with Mr Fretwell was on the Friday before. The substance of the conversation, as given by Mr Murray, is corroborated by Mr Green's evidence that Mr Murray called him at about 4:00pm the same afternoon and by the record of the Toolbox Meeting showing that concern about the escape of dust from the site was addressed with the workmen first thing the next morning.
Mr Fretwell's version of his conversations with personnel in the defendant's office on Friday 19 February is highly improbable. There is no reason why anyone in the office would have told him that the company's managers were overseas and would not be back until the following Monday. Mr Green, the general manager, has given evidence that both he and Mr Butterfield, the operations manager, were present in the locality of the site and available. That evidence was not challenged. The evidence of the Toolbox Meeting is inconsistent with anyone in the defendant's organisation having attempted to fob Mr Fretwell off on the Friday with false information about absence of managers.
Further, I do not accept that Mr Fretwell had any conversation on Thursday 18 February with a person named Richard in the defendant's office. The only person of that name to whom he could be referring, so far as the evidence shows, is Mr Murray. I infer that Mr Fretwell has erroneously expanded his recollection of the conversation with Mr Murray across two dates and is incorrect as to its content. It is significant that Mr Murray acted promptly to pass on Mr Fretwell's concerns on Friday 19 February and that when Mr Green spoke with Ms Byron and Mr and Mrs Fretwell on Monday, 22 February 2016 there is no dispute that he immediately accepted his company's responsibility for the dust infiltration of their respective properties and offered to make amends. I find it unlikely that if a complaint of escaping dust had been communicated to the company on Thursday 18 February it would have been disregarded and not acted upon, as Mr Fretwell asserts.
My assessment of the evidence on this topic is affected not only by the surrounding probabilities and the corroboration referred to above but also by Mr Fretwell's lack of creditworthiness as a witness. As will appear when his evidence on the quantum of damages is discussed below, I find him unreliable and prone to gross exaggeration. The latter tendency is exhibited in Mr Fretwell's endeavour at every opportunity to overstate the detriments to his property that have resulted from the lime powder contamination. I find that Mr Fretwell has seen this event as a bonanza, an opportunity to extract a large award of damages from the defendant or its insurer. His exaggeration of his losses has carried over into attempts to attribute fault and misconduct to the defendant in the manner in which the lime dust escaped in the first place.
Despite the contest between the parties concerning whether the work of spreading lime commenced on 18 February or on 19 February, the outcome of that issue does not affect the assessment of damages according to the ordinary measure. The degree of contamination and damage to the plaintiffs' residences and possessions is to be assessed for what it is, irrespective of whether it occurred over three days or four. In closing submissions the plaintiffs' counsel also did not rely upon the earlier start date as supporting his case that the defendant's conduct should attract exemplary damages. On that question he argued as follows:
Mr Green does give evidence … that that after he learnt of the escape of the lime powder from the site [on 19 February, following Mr Fretwell's call to Mr Murray] he spoke to the operations manager and gave certain instructions. It also emerged … that the record of the toolbox meeting, which was created on 20 February 2016, does record measures that if adopted could have prevented or minimised the escape of the lime powder from the site. But the evidence which is missing, and which in my submission … is critical evidence, is evidence as to whether any of these procedures were in fact adopted on 20 February and 22 February. There's no evidence from the site supervisor, Mr Lynch, who … is still an employee of the defendant, there's no evidence from Mr Butterfield who was the operations manager [and] is no longer employed by the defendant but there is no explanation as to why he hasn't given evidence. […] [There] is no evidence that anything was done to avoid or minimise or evade [the escape of lime powder] on the 20th and 22 February.
The plaintiffs bear the burden of proving "high-handed and outrageous disregard of the plaintiffs' rights and … conscious and contumelious disregard of the plaintiffs' rights", as alleged by them in support of their exemplary damages claim. For exemplary damages the plaintiffs would have to satisfy the Court that the defendant's conduct merited punishment, for example because it is disclosed wantonness or malice: McMullin v ICI Operations Australia Pty Ltd (1997) 72 FCR 1.
In order to sustain this claim the plaintiffs would have to have tendered evidence of what actually occurred on site on 20 and 22 February 2016. They would have to have shown that the wind velocity increased without the defendant's workmen desisting or taking extra precautions; that frequent wetting down of the work area was not undertaken; and/or that in some respect either the instructions given at the toolbox meeting or other reasonable precautions were not followed, to such a degree as to indicate disregard of the impact upon property owners cross the highway. No such evidence was tendered. The absence of such evidence cannot be made good by reference to the defendant's failure to call potential witnesses. The plaintiffs' submissions misconceive the reach of the rule in Jones v Dunkel (1959) 101 CLR 298: see Benton v Scott's Refrigerated Freightways Pty Ltd [2008] NSWCA 143 at [87]-[88].
Even for aggravated damages, the plaintiffs would have to prove that the defendant's conduct was high-handed or contumelious, so as to cause injury to the plaintiffs' feelings or outrage to their dignity: Lamb v Cotogno (1987) 164 CLR 1. Without evidence of what occurred on site of the kind referred to in the preceding paragraph, the threshold for aggravated damages has not been passed.
Mr McWalter knew of Steamatic and regarded it as reputable business. He engaged Mr Schwarz of that firm to take samples within No 42 and to have them analysed. The results of analysis were supplied on 5 April 2016. Of 10 samples taken, there were elevated levels of calcium in the roof space, on a stereo and speaker and on a curtain, consistent with the presence of lime powder. Mr Schwarz stated that calcium levels in swabs taken from all other areas were "relatively low". If the dusting of "white powdery substance" that was visible to Mr Thistlethwaite one month earlier was hydrated lime, evidently it had been largely removed from the living areas by the time Mr Schwarz took his samples. I am satisfied from the description of cleaning methods proposed by Mr Thistlethwaite and from Ms Byron's evidence of her own cleaning efforts that lime dust is readily removed from any hard surface upon which it may settle simply by wiping the surface with a cloth.
Mr Schwarz' recommendations arising from the limited findings of elevated calcium levels in No 42 were as follows:
It is recommended that the roof space insulation is replaced and the upper surface of the ceilings vacuumed, to include beams. […] the curtain [should be] cleaned by a reputable laundry service.
On 6 May 2016 Steamatic provided to Mr McWalter a quote of $2,812.50 to remove the roof-space insulation from both Units 1 and 2 and to clean the voids. He quoted a further $1,600 to install new insulation. Mr McWalter then made the following offer to Ms Byron, on behalf of the defendant, by email on 13 May 2016:
1 Cleaning per Steamatic original quote 12,446.50
2 Cleaning Unit 1 8,800.00
3 Cleaning roof void and removal of insulation 2,812.50
4 Insulation 1,600.00
5 Alternative accommodation [4 days] 1,000.00
6 Car/boat detailing 440.00
7 Allowance towards trampoline and dry cleaning 300.00
27,399.00
In an earlier letter, of 26 April 2016, Mr McWalter had informed Ms Byron as follows:
It is … noted cleaning was carried out shortly after the event by cleaning contractors employed by [the defendant]. I understand you were dissatisfied with the level of cleaning carried out, however the subsequent testing by Steamatic indicates this initial cleaning must have reasonably mitigated the immediate effect of the incident.
Steamatic guarantee their cleaning and on this basis, as well as the test results, it appears reasonable to conclude your premises and contents will be returned to normal condition following Steamatic's suggested cleaning measures.
As outlined Insurers are prepared to pay to you the total cost of this cleaning, inclusive of GST. The payment will include for the outstanding Steamatic quotations. As insurers will be paying you the monies, then you will be in a position to engage Steamatic and arrange for cleaning at a time to suit you.
On 11 May 2016 Ms Byron obtained a quotation from Insulfix for replacement of insulation. The price quoted was $1,628. On 19 May 2016 she obtained a quote in the sum of $8,400 from Attic Vac Pty Ltd for removing the contaminated insulation and vacuum cleaning the void. The total of these two quotes was $10,028, compared to Steamatic's quote to the insurer of $4,412.50 for the same work and materials.
Ms Byron's only response to Mr McWalter's offer of 6 May 2016 was a letter of 12 July 2016 from solicitors instructed jointly by herself and Mr and Mrs Fretwell. The solicitors asserted that "the building" - apparently intending to refer to both of the buildings on Nos 42 and 44 - "is still heavily contaminated presenting a very serious health risk and causing damage and loss of value to property". The letter continued:
After consulting several experts in regards to rectification of the property [sic] we have discovered that there will need to be a significant level of structural work, replacement of fixtures, fittings and contaminated possessions, as well [as] further industrial cleans for the contamination to be rectified to a satisfactory level.
After gathering all relevant quotes we have assessed the total cost of rectification of the properties to be $1,370,203.81.
This figure includes but is not limited to:
Full replacement of roofing and gutters;
Attic vac retrofit, vacuum and new sarking;
Replacement of all contaminated wiring/electricals which have begun to corrode;
The cost of alternative accommodation while the works are carried out;
Replacement of blinds, curtains and carpet; and
Replacement of contaminated possessions throughout both properties.
The plaintiffs have not tendered any reports in the proceedings that would confirm that at the date of this solicitors' letter they had received expert opinions to the effect that "a significant level of structural work" on No 42 had become necessary because of the lime contamination; or that the infiltration of the material had made it necessary to replace "fixtures, fittings and contaminated possessions" or "roofing and gutters" or "blinds, curtains and carpet"; or that "wiring/electricals [had] begun to corrode".
Ms Byron not only rejected the offer of 6 May 2016 from Mr McWalter on behalf the defendant, she also refrained from having any further professional cleaning carried out at No 42. Ms Byron explained this on the basis that she was "concerned that one industrial clean would not be sufficient and that it may need to be cleaned several times over the next couple of years". In cross-examination she acknowledged that she was unaware of the warranty in Steamatic's quote. In her affidavit sworn 27 September 2018 Ms Byron said that, up to the date of that affidavit, white powder kept reappearing in her unit and that she believed it was "coming from the roof void and into the home via the vents in the ceilings". Notwithstanding this, and having rejected Mr McWalter's offer, she did not take up directly with Steamatic its quote for cleaning the roof void and replacing the insulation; nor did she engage Attic Vac to undertake that work in accordance with its quote.
Ms Byron's evidence does not suggest that periodic penetration of dust from the roof space into her living areas has continued beyond September 2018. To whatever extent the problem recurred from May 2016 until September 2018, it was the result of a failure to mitigate. Ms Byron's decision not to have the contaminated insulation replaced and not to have industrial cleaning carried out by a contractor that warranted its work was unreasonable.
My assessment of a reasonable quantification of the cleaning costs referred to in Item 1 of the first to fifth plaintiffs' schedule is $21,686.50, being the sum of the first two items and the sixth item in Mr McWalter's offer set out at [42] above. A reasonable quantification of Item 2 in the schedule is $4,412.50, being the sum of the third and fourth items referred to in Mr McWalter's offer. None of this work has actually been undertaken and there would be no occasion for it to be performed in the future, because I am not satisfied that after the elapse of four and a half years from the contamination event there would be any significant residual lime dust either within the living spaces or still loose in the roof void.
The plaintiffs' counsel submitted that an amount of $10,000 for harm to the enjoyment for each property should be allowed. The only period of appreciable interference with enjoyment was one week, from 18 February 2016 when the dust infiltration commenced until 25 February 2016 when the initial cleaning was completed by the defendant's contractor. After that, I am not satisfied that there was a level of lime in the atmosphere of No 42 that would have caused physical discomfort to the occupants. At worst, for a time some residual dust may have been present in the house and perhaps there was a certain amount of continuing infiltration of fresh material from the roof space into the living areas.
I will include in the assessment of the first to fifth defendants' damages the cost of professional cleaning (including car cleaning) and replacement of roof-space insulation, as set out at [49] above and amounting in total to $26,099, even though those outlays have not been and will not be incurred. This is intended to compensate for the harm to the amenity of the property during the first week; some residual loss of amenity tapering off over subsequent months; and some allowance for residual professional cleaning.
Both of these two men were evidently very willing to make amends for the inconvenience caused to the Fretwells but there is no indication that they were so anxious about the extent of the defendant's liability as to attempt to coerce Ms Fretwell to sign for acceptance of the cleaning work. I rely upon the signed acknowledgement as a contemporaneous admission by Ms Fretwell, freely given, that the extent of contamination at No 44 was not great and that it was substantially rectified by professional cleaning on 25 February 2016.
On 10 March 2016 Mr Fretwell obtained a quote from Steamatic for internal and external cleaning of his property, including HEPA vacuuming and decontamination of all contents. The quote was $8,233 + GST ($9,056). This allowed for a supervisor and three crew to work for three days. The quote was given on the basis of Steamatic's standard warranty, set out at [38] above. It was dated a week after Ms Byron had obtained Steamatic's price for cleaning her property. Mr Thistlethwaite carried out the inspection upon which the quote for No 44 was based. As with No 42, he reported "a dusting of white powdery substance alleged to be hydrated lime" on surfaces throughout the property.
Mr McWalter visited Mr and Mrs Fretwell on 16 March 2016, the same day he attended Ms Byron's premises. When Mr Schwartz was subsequently engaged to take samples and have them analysed, Mr McWalter requested that this be done in No 44 as well. The results for No 44 showed elevated calcium levels, consistent with lime contamination, only in the roof space insulation, in the "lean to" (or skillion) roof over an area at the rear of the property and on an outside table. Samples taken within the residence, including on a guitar located in one of the rooms, showed "relatively low" levels of calcium. As with No 42, Mr Schwartz recommended that the roof space insulation of Mr Fretwell's property be removed, that the void including the upper surfaces of the ceilings and the roof beams, be vacuumed and that the insulation be replaced.
On 26 April 2016 Mr McWalter wrote to Mr and Mrs Fretwell with an offer to pay the amount of Steamatic's quote for cleaning, plus $1,000 for alternative accommodation while the work was undertaken and $1,100 for detailing a car and boat that were in the Fretwells' driveway. There was also an offer to pay the costs of replacing the insulation and cleaning the roof void, for which Steamatic had not supplied a price at that date. The letter included paragraphs to the same effect as what had been written to Ms Byron, quoted at [43] above; that is, if the offered sum were agreed then it would be paid over to the Fretwells so that they could proceed to have the work done at their own convenience.
Steamatic subsequently provided a quote of $2,812.50 for removing the contaminated insulation and vacuuming the void. $1,040 was quoted to replace the insulation. On 6 May 2016 Mr McWalter emailed to the Fretwell's an itemised offer of settlement totalling $15,008.80. Ms Fretwell subsequently complained that Steamatic had not allowed for cleaning two children's bedrooms or the garage. Mr Thistlethwaite advised Mr McWalter that upon his inspection "the owner was not concerned about the other bedrooms or the garage, that's why we only quoted the areas that the owner was concerned about". Notwithstanding this, Mr McWalter obtained from Steamatic a quote of $10,000 + GST ($11,000) for cleaning the two additional bedrooms, but not the garage. This was communicated to Ms Fretwell by email on 7 June 2016, stating that the defendant was willing to pay a total of $16,952.50.
The combined effect of Mr McWalter's emails of 6 May and 7 June 2016 was the following settlement offer:
1 Cleaning per Steamatic quote 11,000.00
2 Cleaning roof void and removal of insulation 2,812.50
3 Insulation 1,040.00
4 Alternative accommodation [4 days] 1,000.00
5 Car/boat detailing 1,100.00
16,952.50
Ms Fretwell had also claimed the cost of testing for asbestos. Mr McWalter offered to include this in the settlement if she could produce a receipt. I do not accept that any cost of asbestos testing should form part of the assessment of damages for lime dust contamination. Ms Fretwell responded to the above offer from Mr McWalter in an email of 9 June 2016 as follows:
In regards to the receipt for the asbestos testing - my family and I have had to evacuate the house due to the unauthorised works of [the defendant] that has contaminated my house and my body with lime (not sulphar [sic]), I cannot access my receipt at this point in time. … In regards to your conversation with [Mr Thistlethwaite], on the day in question that he come [sic] to my neighbours it was not pre-arranged with me and after the intimidation and confrontations with [the defendant] that we had previously been subject to, I was not prepared to have another stranger in my house on the day (I also had guests at the time of [Mr Thistlethwaite's] visit next door).
It wasn't until I looked properly at my household goods and had a severe anxiety attack which caused panic and a meltdown, that I realise the severity of the contamination throughout the entire house and that the job of cleaning was too much for one lady (myself), as well as I did not have the appropriate cleaning products and Ppe gear to do the job. My health was not helping the situation either; due to the exposure in my mouth, lungs, throat, and skin as you know. I also did not realise that there would be a continual fallout from the roof void contamination.
This is an ongoing issue that presents itself with dilemmas each day as it continues to fall, spread and corrode my families [sic] home.
With respect to the first paragraph of this email I have already recorded my finding that there was no intimidation of Ms Fretwell by anyone on behalf of the defendant. In complaining about the circumstances of Mr Thistlethwaite's inspection of No 44 Ms Fretwell overlooked the fact that this was not arranged by the defendant or by Mr McWalter but by one of the plaintiffs. With respect to the second paragraph, I do not accept that Ms Fretwell has at any time suffered a panic attack or felt in any way overwhelmed by contamination of her home. I am satisfied that the lime infiltration was substantially cleaned up on 25 February 2016 by the defendant's contractor and that she was satisfied with the outcome. I am not satisfied that after that date she ever perceived there to be such an extent of lime dust within her home as to require personal protection equipment (PPE) to be worn while cleaning or that any significant additional cleaning was required.
As regards Ms Fretwell's claims of effects upon health, no medical evidence has been adduced to support this. At 7 June 2016 the sixth and seventh plaintiffs and their two children had been living near Lightning Ridge for three months. I do not accept that there was "continual fallout from the roof void contamination" after the date of this email. If any lime dust in the roof void was disturbed and entered the living areas below, Ms Fretwell was not there to see it.
Following the above email the next communication to the defendant was the solicitors' letter of 18 July 2016, to which reference has been made at [45] above. The alarming claims in that letter about damage to property have not been proved in relation to No 44 any more than they have in relation to No 42. Indeed, there has not been tendered on behalf of the plaintiffs any expert opinion concerning damage of the kind described or causation of such damage by lime contamination. No attempt has been made to prove the claims in the solicitors' letter of demand.
Mr Fretwell has deposed that on about 26 February 2016 he and his family moved out of the house to stay at a motel near Port Kembla for four nights. He says that they returned to the house for "a few nights" in early March 2016 then left the property and travelled to Grawin near Lightning Ridge. Ms Fretwell deposed that the date of departure was "early April 2016" but I prefer Mr Fretwell's evidence because he is more specific as to the detail and because Ms Fretwell acknowledged in cross-examination that she was uncertain as to the dates of events around this time, generally.
The family lived together at Grawin from early March 2016 until November 2016, then moved in to Lightning Ridge, 70km away. They were together at Lightning Ridge until January 2017, when Mr and Mrs Fretwell separated. Ms Fretwell has stayed on at Lightning Ridge to the present day. Mr Fretwell has deposed that since January 2017 he has "had various accommodation arrangements including living at camps, motels and with my mother". He says that he has "not had stable living arrangements". Significantly for present purposes, neither the sixth or seventh plaintiffs or their children have lived at No 44 Princes Highway, Albion Park Rail since about 7 March 2016.
The evidence does not enable me to determine exactly why Mr and Mrs Fretwell and their family moved to Grawin and then Lightning Ridge when they did. However I am satisfied on the balance of probabilities that this was not caused by the infiltration of lime into their house. I do not accept that the house has been uninhabitable since early March 2016, as the sixth and seventh plaintiffs contend.
The sixth and seventh plaintiffs have never had Steamatic carry out the work for which it quoted. As with the claim of the first to fifth plaintiffs, I am satisfied that the only period of significant harm to the plaintiffs' enjoyment of No 44 was the week from when dust infiltration commenced until the defendant's contractor completed an initial clean on 25 February 2016. After that, any compromise to the ordinary use and enjoyment of the property, such as residual dust in living areas or percolation of material from the roof space into those areas, would not have affected the sixth or seventh plaintiffs because they were not living in the house, for reasons not shown to be attributable to the defendant's tort. In any event, if there was an ongoing compromise to the enjoyment of the property it could have been remedied by engaging Steamatic to clean the premises and replace the roof-space insulation. If the sixth and seventh plaintiffs' choice not to have that work undertaken resulted in continuing diminution of enjoyment of the property, the choice was unreasonable and the loss is attributable to failure to mitigate.
With respect to the car and boat, no doubt they would have required thorough washing down after airborne lime had settled on them. The boat is of fibreglass construction. There is no evidence that any damage was done to the surfaces of either the boat or the car, such as would require repair. I assess the reasonable cost of cleaning these items at $220 each, a total of $440.
The plaintiffs' counsel submitted that $10,000 might be awarded for loss of enjoyment of the property. I will include in the sixth and seventh plaintiffs' damages an amount of $15,292.50, made up of the first three items of Mr McWalter's offer set out at [74] above, together with the $440 referred to at [83]. In my view that figure provides reasonable compensation for a brief period of diminished enjoyment, including the cost of one or two nights in a motel during that first week, and some allowance for residual cleaning costs, which have not to date been incurred.
It is not apparent on the evidence how the airborne hydrated lime would have entered the fish tanks in any significant quantity. The first three tanks were arranged in a stack, the top one having a removable cover and each of the others being protected by the one above, except for a vertical gap of about 200mm. The larger independent tank, of which there is a partial photograph, had a removable cover with a handle. Contamination of the water by lime would no doubt raise its pH, or alkalinity. There is no evidence that the alkalinity was measured or found to have increased following the escape of lime dust onto No 44. There is no evidence of whether increased alkalinity would be fatal to the fish or, if so, at what level.
The evidence does not satisfy me on the balance of probabilities that any of the fish died as a result of airborne lime entering the water of the tanks. There is no evidence that any arrangement was made for someone to attend to the fish after the Fretwells departed for Lightning Ridge on about 7 March 2016. So far as the evidence shows, the fish may have died as a result of not being fed or their water quality not being monitored after the sixth and seventh defendants departed. Further, the evidence does not enable me to make a finding on the balance of probabilities as to how many fish were present in the tanks or what their value was. For all of these reasons I find no basis upon which to allow any sum in respect of Item 8 in the sixth and seventh defendants' schedule.
As to the third of Mr Fretwell's explanations for not having resumed employment, no medical evidence has been tendered to establish that he suffers from depression or any other condition to such a degree that it would disable him from working. There is no evidence to show that any of the events of February 2016 has compromised his mental state.
Mr Fretwell's evidence of lost income not only fails to substantiate an entitlement to any damages on that account. It is also generally discrediting. It demonstrates his willingness to distort and exaggerate circumstances in order to try to wring as much as he can from his claim against the defendant. There should be no award of any sum in respect of Item 10 in the sixth and seventh plaintiffs' schedule.