(HIGH COURT) HAMZA ALI KAMEIR ……………………..Applicant and MOHAMMED HASSAN EL SHAWAHLI . ... a Respondent (Khrt-HC-REV-80-1956) REVISION Principles · tort - nuisance - excavations - right so support of building - strict liability, - damages. The Defendant informed the Plaintiff that he was about to start excavating foundations for a building to be erected on land adjoining the premises of the Plaintiff. The Defendant’s excavations were two metres deep and were directly under a wall of the Plaintiff’s premises. As a result the wall collapsed and other walls of the premises cracked. The District Judge Khartoum having found for the Defendant, the Plaintiff applied for revision. - Held: (1) The cause of action in this case lies in nuisance (2) When buildings are injured by subsidence of the foundations as a result of subsidence in the soil underneath caused by the actions of the occupier of adjoining land, such occupier is liable for the ensuing injury, irrespective of negligence.” (3) Notice by Defendant to Plaintiff did not release him from liability Decision of District Judge reversed. Judgment Plaintiff was the tenant and occupier of a shop known as Plot No. 12 Block 5 H.W. Khartoum. The said shop was used by him for wholesale merchandise. The Defendant was the owner of the Plot of land adjoining the said shop. The Respondent by letter dated 4.3.1953 informed Appellant that he had obtained permit to build on the adjoining plot and that he was proposing to start the work by excavation of the foundations. Shortly after this the Respondent caused the excavations to be made. The excavations were two metres deep and they were directly under the west wall of the shop. As a result of this work the west wall collapsed and the other walls cracked. This rendered the shop uninhabitable and the Appellant claimed damages. Advocates: Abdel Hadi ………………….for Applicant Ahmed Gumaa …………………………..for Respondent Osman el Tayeb P.J.: - There is not much dispute about the important facts of this case. The contest made was whether the letter dated 4.3.1953 as received by Appellan would have led to better results if it were directed to the question whether the damage caused to the shop was the result of the excavations and established more details as to the process of the fall of the wall, etc. It is clear that the excavation took place and that it was followed by the fall of the wall and cracks in other walls. (Appellant gave evidence that this was caused by that). The inference of fact is that , subsidence took place in the foundations of the wall following similar action in the soil, below. The Appellant based his action on negligence, and issue No. II was accordingly framed and the argument of the two Advocates on either side went to prove or disprove negligence. In my opinion on the facts set out above this case does not fall under the province of the tort of negligence nor within the rule in Rylands vs. Fletcher* as suggested by Advocate for Appellant in his submission for this revision. The tort of negligence is essentially found when a duty of care owed to the injured party is established. In this case there is no such duty. Rylands vs. Fletcher* embodies a rule, the most essential ingredient of which is liability for the escape of a substance which caused damage to adjoining land. The appropriate tort applicable to this case is that of nuisance for withdrawal of support. I could not find an authority in the Sudan covering this type of apparently common sort of case. The common law rule as to right of support is that every piece of land has a servitude of support from the adjoining land this rule relates only to the support of land in its natural condition — i.e. unburdened with buildings “ Salmond, Eleventh Edition Page 283. The same authority on the following page states:-The question (of buildings) is of little importance, because the withdrawal of subjacent support from a building almost inevitably involves the withdrawal of support from the land in which the building stands. The same authority states that this case of injury to buildings has not yet been decided by the Courts. But I venture to decide that when buildings are injured by subsidence of the foundations as a result of subsidence in the soil underneath, caused by the actions of the occupier of adjoining land, he is held liable for the injury. Thus the case coming under the tort of nuisance, liability exists irrespective of negligence or (*) (1868) L.R.3 (H.L.) 330. motive. The letter of 3.4.1956 whether it be a notice or warning is totally irrelevant. Respondent is, therefore, absolutely liable for the consequences of the damage caused to the adjoining shop by the excavations he made on his land. As to damages, Appellant had to porter his goods from the injured shop to another and back when it was rebuilt. He had to repair electricity and water-supply installations, etc. and had a few articles damaged, for that his assessment was LE. 19.535m/ms. This was not disputed. Further he claimed loss of earnings. In his evidence the Appellant stated that his business was prevented for 16 days at a loss to him of LE.5 per day. in his claim sent to Respondent before institution of the Suit he claimed LE.120 under this head being loss, of LE.10 per day for 13 days and on this he based his claim in the case. Out of these contradictions I assess the loss of earnings of profit at LE.5 for 12 days, i.e. LE.60. Thus the total relief should be LE.79.355m/ms. (Revision allowed)