Lai Kew Chai J

In mid January 1974 the Defendants were excavating their site enclosed within a cofferdam for 3 basement floors. They were in the course of erecting a 13 storey building. During this period, the owners of buildings in the neighbourhood complained that cracks had appeared in their buildings. Some of the cracks were quite severe. Among the neighbours were the Plaintiffs whose building suffered extensive cracks and who now claim damages for loss of support, nuisance as well as negligence against the Defendants.

Central to the causes of action is the Plaintiffs' allegation that by reason of the excavations, the bottom of the hole thereby formed heaved upwards and the ground upon the sides of the cofferdam moved downwards and laterally towards the excavation hole, having passed underneath the sheet piles surrounding the Defendants' land, with the consequence that the surface ground in the immediate vicinity subsided and the buildings standing on them therefore suffered cracks. In short, the Plaintiffs alleged that some sort of base heave had occurred at the excavation site which, if proved on a balance of probabilities, must mean that the Defendants were liable in law for the withdrawal of support, nuisance and negligence. If negligence is made out, the Third Party who was the consulting Engineer, would be the party primarily responsible and he would have been liable to indemnify the Defendants.

On the other hand, the defence of both the Defendants and the Third Party is that the damage caused to the Plaintiffs' buildings was attributable to differential consolidation settlement brought about by de-watering of their soil and this settlement was accentuated by the effect of the mixed foundation of the Plaintiffs' building and the abnormal "King Tide" which occurred on February 9, 1974. Throughout the trial, the Defendants contended and admitted that ground de-watering of the Plaintiffs' soil had been caused by the excavation works. But the Defendants and the Third Party maintained that such de-watering, that is the flow of water from the plaintiffs' soil into the excavation hole through indeterminate or undefined channels, was due to the forces of nature and the forces of gravity, and was neither avoidable, given the state of engineering at all material times, nor was it due to any positive acts done by the Defendants, their servants or agents. The damage to the Plaintiffs' building, the Defendants contended, was therefore damnum sine injuria or damage without legal injury.

Before I turn to the evidence led during the trial which lasted 36 days bearing on the fundamental question of fact as to what had caused the subsidence to the Plaintiffs' land, I need to set out the common law position in Singapore concerning the liability of a landowner for the flow of the subterranean water from his neighbour's land through undefined channels into his land as a result of an excavation.

It seems to me important to dwell on this particular aspect of the common law which affects neighbouring landowners in Singapore in view of the growing incidence of underground civil engineering works, and, in view of the fact that, as far as I am aware, no judgment has been written in Singapore bearing on this branch of the law.

The position at common law in England was first adumbrated in Acton v Blundell (1843) 152 ER 1223. The plaintiff was the owner of a cotton mill. Water supply for the mill was drawn from a well in his property. The defendant in opening a colliery nearby sank two coal pits. Underground water in the plaintiff's land was drawn through undefined channels to the coal pits, causing the plaintiff's well to run dry. The learned trial Judge directed the jury that the plaintiff had no claim in law against the defendant. On an appeal to the Exchequer Chamber, Tindal C.J. confirmed the trial Judge's direction to the jury and said at page 1235: —

"(this case) falls within (the) principle, which gives to the owner of the soil all that l