Cox v Taylor

[1966] HCA 16

HIGH COURT OF AUSTRALIA

Taylor, Windeyer and Owen JJ.

COX v. TAYLOR

(1966) 114 CLR 629

24 March 1966

Limitation of Actions

Limitation of Actions—Action against public officers—Time for commencement "in case of a continuance of injury or damage"—Continuance of act causing damage not of continuing effects thereof—Public Officers Protection Act 1934 (Tas.), s. 4 (b)*.

Decisions

March 24.
The following written judgments were delivered:-
TAYLOR J. I agree with my brother Owen, whose reasons I have had the opportunity of considering, that the line of authority extending over a period of more than sixty years is too strong to permit us to accede to the argument advanced on behalf of the plaintiff. To the cases to which his Honour refers I add Hague v. Doncaster Rural District Council (1908) 100 LT 121 and Rawlins v. Gillingham Corporation (1932) 146 LT 486 . Further, the construction placed upon s. 1 of the Public Authorities Protection Act in Carey v. Metropolitan Borough of Bermondsey (1903) 20 TLR 2 seems to have been implicity adopted in Williams v. Mersey Docks and Harbour Board (1905) 1 KB 804 , a case which, in turn, was expressly approved by the Judicial Committee in British Electric Railway Company Ltd. v. Gentile (1914) AC 1034, at p 1042 . I add for myself that I see no reason to doubt the correctness of the decision in Carey's Case (3). No doubt that decision may be productive of anomalies but not, as I see it, to any greater extent than would be produced by acceptance of the plaintiff's contentions. (at p630)

WINDEYER J. I agree. (at p630)

2. When the appellant brought his action in the Supreme Court of Tasmania the Public Officers Protection Act 1934 (Tas.), s. 4 (b), was in force. It has since been repealed, but this appeal admittedly turns only on whether the action was brought within the time that the Act prescribed. I do not myself regard s. 4 (b) as clear. It has been made clear for courts in England by what in Carey v. Metropolitan Borough of Bermondsey (1903) 20 TLR 2 Lord Halsbury said was its meaning. His construction has been consistently followed in England - not, as I read what was said in the various judgments, from a conviction that it was correct, but rather because it was regarded by the courts as binding upon them. It was urged for the appellant that it is not binding upon us and that we should not follow what has been said in England. If it appeared to me that what was there said was mistaken and that another more probable view was open, I would not think we should be deterred by the mass of the authorities. Their mass adds little or nothing in weight to that of Carey's Case itself, because from it the courts in later cases did not think they were at liberty to depart. Nor do I think that the re-enactment of the section in Tasmania in 1934 is in any way decisive. It had been in the law of Tasmania since 1898. Its re-enactment in 1934 occurred in the course of a revision of the statute law then in progress. In the circumstances I do not think we should assume that its re-enactment was an adoption by the legislature of the meaning that the courts had put upon it. I therefore turn to its words. It is unnecessary to advert to the difficulties that are hidden in them. These have been cogently remarked upon, by Lord Aitken among others. But one thing seems to me plain: that is that the words "in case of a continuance of the injury or damage within twelve months after the cessation thereof" predicate a case in which a cessation of injury or damage could occur on some particular day - that is to say at a point of time from which twelve months could be measured. Cases of false imprisonment, nuisance and trespass might sometimes meet this requirement. But it is hard to see that it could apply to a case of personal injury by negligence, especially when the resulting harm is permanent. (at p631)

3. It is conceded that the respondents were public officers entitled to set up the statutory limitation as a bar to the appellant's action. The appeal must be dismissed. (at p631)

OWEN J. This is an action in which the plaintiff sought to recover damages from the defendants alleging that in July 1959, as the result of the negligence of the first-named defendant who was employed by the defendant Board, he had sustained personal injury whilst undergoing treatment as a patient in the Burnie General Hospital. The writ was issued in July 1963 and the defendants pleaded inter alia that the action was barred by s. 4 (b) of the Public Officers Protection Act 1934 of Tasmania which provides that: "No proceeding shall be brought against any person for or in respect of any act done by such person in pursuance or in execution, or intended execution, of any Act or of any public duty or authority or in respect of any alleged neglect or default in the execution of any such Act, duty, or authority, unless - (a) . . . (b) the proceeding is commenced within twelve months after the act, neglect, or default in respect of which it is brought or in case of a continuance of injury or damage within twelve months after the cessation thereof." To this defence the plaintiff, in reliance upon the concluding words of par. (b), replied that his injury was still continuing. This raised a question as to the proper construction of the section which was argued before Burbury C.J. who held, following a number of English decisions upon s. 1 of the Public Authorities Protection Act, 1893, that the plaintiff's continuing injury was not "a continuance of injury or damage" within the meaning of the words in par. (b) and that the action was therefore barred by the lapse of time. From that decision this appeal is brought. (at p632)

2. Section 1 of the English Act corresponds with s. 4 (b) of the Tasmanian Act except that it sets a time limit of six months as opposed to the period of twelve months set by the latter Act and counsel for the appellant rightly agreed that if the decisions on the point in England and Scotland were followed he could not succeed. He submitted, however, in the course of a vigorous argument, that we should not follow them. The words "continuance of injury or damage" should, he said, be given their ordinary and natural meaning and if this was done the plaintiff's case fell within them. There was, he contended, no justification for the restricted construction which had been put upon them in the United Kingdom. (at p632)

3. The construction of the relevant words in s. 1 of the English Act came up for consideration in 1903 in Carey v. Metropolitan Borough of Bermondsey (1903) 20 TLR 2 before Halsbury L.C. and Alverstone L.C.J. sitting as the Court of Appeal. The facts were that the plaintiff had sustained personal injuries as the result of the negligence of the defendant in repairing a road. At the date when she brought her action, which was more than six months after the date when she had received her injuries, she was still suffering from them and this, it was argued, was "a continuance of the injury or damage" within the meaning of the section so that the action was maintainable although brought more than six months after she had been injured. The Lord Chancellor, with whom the Lord Chief Justice agreed, said that "the language of the section was reasonably plain, and it was manifest that 'the continuance of the injury or damage' meant the continuance of the act which caused the damage" (1903) 20 TLR, at p 3 . The plaintiff therefore failed. Whether it was correct to say that the language of the section is reasonably plain and that its meaning is manifest may be open to doubt but since then the decision in Carey's Case (1903) 20 TLR 2 that the words "continuance of the injury or damage" refer to the continuance of the act which caused the damage has been accepted in a number of cases, not always perhaps with enthusiasm. (See Huyton and Roby Gas Company v. Liverpool Corporation (1926) 1 KB 146 ; Freeborn v. Leeming (1926) 1 KB 160 ; Morriss v. Winter (1930) 1 KB 243 ; Copper Export Association Incorporated v. Mersey Docks and Harbour Board (1932) 147 LT 320 .) These cases were followed by Clark J. in the Supreme Court of Tasmania in Butler v. Attorney-General (1949) SR (Tas) 18 and the same construction was adopted by the Court of Session in Scotland in Spittal v. City of Glasgow Corporation (1904) 6 F (Ct of Sess) 828 . (at p633)

4. There is then a line of authority going back for over sixty years in which the words in question have been construed in this way and it is not unreasonable to think that the draftsman of the Tasmanian Act of 1934 had this in mind. In these circumstances, we should, I think, adopt the same construction and I would add that if the construction for which the appellant contends were accepted, it might give rise to very real problems. For example, in a case in which the plaintiff sought damages for personal injury occasioned by the negligence of a public officer or authority it would be difficult, to say the least of it, to determine the exact date of the "cessation" of the plaintiff's injury or damage when time would begin to run and considerations of this kind may well have been in the mind of the Court in deciding Carey's Case (1903) 20 TLR 2 as it did. (at p633)

5. For these reasons the appeal should be dismissed. (at p633)

Orders

Appeal dismissed with costs.