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Decisions of the Superior Courts of New South Wales, 1788-1899

Miller v. Reibey [1813] NSWKR 5; [1813] NSWSupC 5

damage to land - negligence

Court of Civil Jurisdiction
Bent J.A., 13 April 1813
Source: Court of Civil Jurisdiction Proceedings, 1788-1814, State Records N.S.W, 5/1109-84

William Miller of Sydney Plaintiff
and
Mary Reiby of Sydney Defendant
Writ for Sixty Pounds damages occasioned by the plaintiff having destroyed a certain bakehouse and oven of the defendant, by negligently using and exploiting Gunpowder in the blasting of certain locks.
The Plaintiff is allowed to prosecute this Cause by George Crossley his agent, duly authorised.
The defendant appeared in person and defends the action.
The plaintiffs agents exhibits to the Court a statement of his case which is read.
Evidence for the Plaintiff
William Hughes
Sworn says} I delivered a notice of which the one now shewn me is a Copy to the defendants on the 10th day of April.
Notice produced and read. (marked No. 1)
Richard Brien
Sworn says}I live in Cumberland Street on the Rocks. I am a stonemason by trade. I was employed by the defendants in April last in laying the formation of her house. I was desired by the defendant to see what damage had been done to the Plaintiffs dwelling house oven & Bake house. The plaintiffs house is close adjoining to the premises of Mr Reiby. Mrs Reiby had reason to blow up some of the rock near Millers oven in laying the foundation of his[?] house. I cannot say that the damage I was desired to look at Millers premises were occasioned by such blowing up. I will not take upon myself to swear the damages were not occasioned by such blowing up. I was not present when the rocks were blown up. I was desired by Mrs Reiby to let her know what it would take to repair the oven. I understood that on account of the Plaintiffs the [?] of his house to be cut away to enable Mrs Reiby to carry up the walls of her house she engaged to repair Millers oven. When I went to see the damages which had been done and I found different cracks and settlements in the walls of the Bake house. There were different pieces of plaster off the walls of the dwelling and a settlement and crack in the end wall next where the rocks had been blown up. The wall was rather divided. The oven, bake house, and wall I have spoken of were about ten or twelve feet from where the rocks had been blasted. I think it is possible that by an over charge of powder in blasting the rock, the dwelling house oven and Bake house might have been damaged. I think with the assistance of one labourer I could have effectively repaired these damages in four days. I think the crack in the wall of the dwelling house was so great as to have endangered the house if there had been any great weight in the floor above. The door of the dwelling house going into the bake house was so nearby through a door the frame and all. I do not think the wall of the dwelling house could have been effectively repaired without pulling down. I mean I could have repaired the oven in four days. I think fifteen pounds would have effectively repaired all the damages. I understood when I went to view the damages that Mrs Reiby was to do the repairs. I understood it from Mrs Reiby. I do not know of any repairs having been done to the premises [?] they were sold. The Bake house is a stone building, not above four or five years built.
Being cross
examined by the
defendant says}Part of Mrs Reiby's wall was built when the road was blasted; the blast did not injure that; Mrs Reiby's wall was nearest. The witness withdraws.
Thomas Miller
Sworn says} I have sometimes worked Journey man's work at the Plaintiffs. The Plaintiff was a baker. I believe I was working at the Plaintiffs in February 1812. The oven was then in good repair. I did not take much notice of the bake house. It was a very good oven. I recollected the oven and bake house being afterwards damaged by some cause or other. I don't know the cause. On that account it could not be used afterwards. I think that while I was with Miller, he might have cleared three pounds per week by his trade as a baker. The baking ceased in consequence of the damage. I hired the oven afterwards sometime in June but it would not bake usable bread. It entirely spoiled the bread.
Cross examined by
The defendant says} Miller did not constantly bake a little time before the oven was damaged. He then baked as he could get wheat. I have known oven to be used and the Crown [?] not fall in; not in this Country. I think an oven will be a little impaired by not being constantly used. I never took much notice of the outside of the oven.
Re-examined for the
Plaintiff says} The oven was covered but I cannot tell how.
John Anderson
Sworn says}I knew Millers bake house and oven. I offered to rent it from Miller sometime before it was damaged. I proffered him three pounds currency a week rent. Miller said if it is worth three pounds a week to me it was worth six pounds to him. I had baked in that very oven. When I worked at it it was a good oven. I have drawn such a thing as 400 or 500 weight of bread out of it a day. I saw it after it was damaged. I would not have any thing to do with it then.
Cross examined
Says} It was for the whole of the premises I offered three pounds a week for. The oven is built on a solid firm rock. I offered the £3 on account of the situation.
The Court does not think it necessary to call upon the defendants as there is not sufficient proof that the damages were occasioned by the negligence of the defendant. The Court doth therefore adjudge & decree that this suit be dismissed.

Published by the Division of Law, Macquarie University