The case of Rayman v Brown involved excavation works performed on Ms Brown’s property that caused significant damage to Ms Rayman’s neighbouring property due to excessive vibrations from the installation of sheet piling, a method warned against by the initial geotechnical engineer involved in the project.
The NSW Supreme Court found that Ms Brown and her builder, Scopeview Projects Pty Ltd, breached the duty of care owed to Ms Rayman and were therefore liable in negligence at the common law, as well as pursuant to s 5B of the Civil Liability Act 2002 (NSW) and s 177 of the Conveyancing Act 1919 (NSW).
In issue
In summary, the key issues in the case included whether:
- Ms Brown and/or Scopeview breached the duty of care owed to Ms Rayman pursuant to s 5B of the Civil Liability Act 2002 (NSW) (the CLA) and/or at common law
- Ms Brown and/or Scopeview failed to exercise reasonable care in doing something in relation to the Rayman land and were therefore negligent under s 177(2) of the Conveyancing Act 1919 (NSW) (the Conveyancing Act) and, whether s 177 imposes a non-delegable duty
- whether one or more of the alleged breaches caused damage to the Rayman land
- given Scopeview successfully invoked the proportionate liability principles, the extent to which the concurrent wrongdoers contributed to Ms Rayman’s loss, and
- the loss and damage suffered by Ms Rayman, including her entitlement to damages for the diminution in value of the Rayman land.
The background
This case concerned a dispute between Ms Rayman, the owner of a property located on Gilgandra Road, North Bondi (the Rayman land) and her neighbour Ms Brown, the owner of an adjoining property (the Brown land). Ms Brown redeveloped her property and constructed a three-story dwelling with an inground swimming pool, necessitating excavation works.
Ms Rayman argued that in the course of engaging in such excavation works, Scopeview Projects Pty Ltd (Scopeview), the builder, removed support provided by the Brown land to the Rayman land, which resulted in significant structural and other damage to her property. Specifically, Ms Rayman contended that the primary cause of the damage was the occurrence of excessive vibrations during the construction of sheet pile walls.
Despite a geotechnical engineer recommending that sheet piling not be used due to the risk of adverse vibrations causing harm to adjoining properties, a sheet pile shoring system was chosen as the temporary shoring system for the excavation. The vibrations caused immediate structural damage to the Rayman land, with further exacerbation over time.
Also in issue was Ms Brown’s failure to comply with the development consent conditions, in that she did not provide Ms Rayman with the required 7 days’ notice of commencement of the excavation works.
Ms Rayman commenced proceedings against Ms Brown and Scopeview, claiming that they each breached the duty of care owed under the common law, s 5B of the CLA and s 177 of the Conveyancing Act. Ms Rayman claimed damages for the diminution in value of the Rayman land as well as consequential losses associated with the sale of the Rayman land in October 2024.
Scopeview invoked the proportionate liability regime under part 4 of the CLA, resulting in the joinder of a number of other parties to the proceedings as alleged concurrent wrongdoers, including Meso Solutions Pty Ltd (Meso – the shoring contractor engaged by Scopeview), VMS Australia Pty Ltd (VMS – specialist vibration management consultants engaged by Meso), In-ground Design & Consultants Pty Ltd (IDC – a design consultant, now in liquidation), and El Australia Pty Ltd (EIA – a geotechnical engineering consultant engaged by Meso). Claims against these entities were settled, aside from IDC, who was not served with the initiating process and played no part in the proceedings. For the purposes of the claim against Scopeview, it being the only defendant to invoke proportionate liability, the Court was required to determine whether the damage claimed to the Rayman land was caused by the alleged concurrent wrongdoers, and if so, to what extent.
Ms Brown also raised a claim of contributory negligence against Ms Rayman, alleging that the Rayman land (particularly the footings) was not in good condition and ultimately contributed to Ms Rayman’s loss and gave rise to a positive duty for Ms Rayman to advise Ms Brown of those matters.
The decision at trial
The Court held that the decision to use sheet piling was a necessary condition of the damage caused to the Rayman land, and the failure to provide timely notice to Ms Rayman deprived her of the opportunity to take preventative action. Ms Rayman’s claims in negligence against Ms Brown and Scopeview were made good, and Ms Brown’s contributory negligence claim against Ms Rayman failed. More specifically, the Court found:
- A reasonable person in Ms Brown’s position would not have agreed to use sheet piling in the face of the clear recommendation against its use without obtaining considered expert evidence as to its feasibility.
- Scopeview breached its duty of care in making the decision to use sheet piling in the first instance (contrary to the Martens Report recommendation), in not reviewing that decision when issues were raised regarding its use in March/April 2020, and in not testing the advice received from the EIA as to the feasibility of the system.
- The expert structural and geotechnical engineers agreed that the primary cause of the damage to the Rayman land was the occurrence of excessive vibrations during the construction of the sheet pile walls.
The Court further held that Ms Brown and Scopeview breached s 177 of the Conveyancing Act on the basis that their decision to use sheet piling constituted an act that caused the removal of support for the Raymand land. This duty was nevertheless found not to be non-delegable.
Scopeview successfully invoked the proportionate liability principles and the Court assessed its proportionate contribution vis à vis the four concurrent wrongdoers at 15%. The Court explained that Scopeview’s share of responsibility derived from its decision to use sheet piling in the face of expert evidence to the contrary.
As against Ms Brown, Ms Rayman was awarded damages in the amount of $1,164,782.20 plus interest, comprising $1.15 million for the diminution in value of her property and $14,782.20 for consequential loss (being some, but not all, of the cosmetic repair costs to the home, required to repair the damage occasioned by the excavation works). Judgment was entered against Scopeview in the sum of $174,717.33 plus interest (being 15% of $1,164,782.20).
Implications for you
This decision serves as a crucial reminder that excavation near neighbouring properties must be handled with the utmost care, especially when engineers or consultants have flagged foreseeable risks. Choices regarding excavation methods, shoring and safeguarding in relation to adjoining properties can lead to serious repercussions if identified risks are not adequately managed. Importantly, engaging contractors or consultants does not absolve owners or builders of liability. It is for this reason that insurers should encourage clients to formalise such arrangements in the form of written contracts, as opposed to merely quotations and correspondence, to avoid disputes over liability down the track.
The decision also highlights the importance of a defendant pleading pursuant to the principles of proportionate liability, if this is applicable in the circumstances.
