Ross v Town of Victoria Park

[1999] WASC 91

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   ROSS & ANOR -v- TOWN OF VICTORIA PARK [1999] WASC 91

CORAM:   MASTER BREDMEYER

HEARD:   19 MAY 1999

DELIVERED          :   14 JULY 1999

FILE NO/S:   CIV 1117 of 1999

BETWEEN:   CLIVE MICHAEL ROSS

JENNIFER ANNE ROSS
Plaintiffs

AND

TOWN OF VICTORIA PARK
Defendant

Catchwords:

Tort - Trespass to land - Continuing trespass and the Limitation Act 1935 (WA)

Legislation:

Limitation Act 1935 (WA), s 38(1)(c)(iv), s 47A(1)

Result:

No change to previous judgment

Representation:

Counsel:

Plaintiffs:     In person

Defendant:     Mr J C W Skinner

Solicitors:

Plaintiffs:     In person

Defendant:     Corrs Chambers Westgarth

Case(s) referred to in judgment(s):

Ross & Ross v Town of Victoria Park [1999] WASC 90

Case(s) also cited:

Nil

1. MASTER BREDMEYER:  Since delivering reasons herein in Ross & Ross v Town of Victoria Park [1999] WASC 90 on 6 July 1999 I have received a letter from Mr and Mrs Ross pointing out an error I am said to have made in my reliance on s 47A of the Limitation Act 1935 (WA) in my reasons, and inviting me to correct it to avoid the trouble and expense of an appeal.  As I did not hear argument on the limitation point I propose to elaborate on it now.

2. The plaintiffs' contention on this point is as follows. Judgment was given in favour of the defendant on the basis that s 47A imposed a limitation period of one year and the current action was "clearly time barred". Section 47A(1) imposes a limitation of time "from when the cause of action accrues". In the case of a continuing trespass the cause of action accrues on a daily basis. Consequently s 47A has no application in this matter. The defendants in their original application to strike out the plaintiffs' claim raise s 47A as their defence. On the plaintiffs amending their statement of claim to clearly show that the action was in respect of a continuing trespass, both the defendants and Master Sanderson admitted that the defendants' application fell away as s 47A did not apply. Furthermore, even the defendants did not raise s 47A in their defence in relation to the action for a continuing trespass because they acknowledge that it did not apply.

3. Trespass to land is technically trespass quare clausum fregit and the limitation period for that under s 38(1)(c)(iv) of the Limitation Act is six years. Where the defendant is a public authority the limitation period under s 47A(1) of the Limitation Act is one year but this may be extended to six years.  That subsection provides specifically:

   "… where the act, neglect, or default is a continuing one, no cause of action in respect of the act, neglect, or default accrues until the act, neglect or default ceases but the notice required by paragraph (a) of this subsection may be given and an action may thereafter be brought while the act, neglect or default continues."

4. Trespass can be a continuing tort.  Preston & Newsom's Limitation of Actions 4th ed at 17 states:

   "Trespass is actionable per se and time therefore runs from the day when the trespass was committed.  However, trespass may be continuing and in that case a new cause of action accrues every day."

   At 19 the learned authors write:

   "Where a tortious act creates a state of affairs which causes more than one incident of damage, the victim may recover in respect of those incidents which occur within the six years before action: Backhouse v Bonomi (1861) 9 HL Cas 503 and Darley Main Colliery Co v Mitchell (1886) 11 App Cas 127. Where continued or repeated tortious conduct creates damage the victim can recover for so much of the damage as was caused within the limitation period: Berry v Stone Manganese and Marine Ltd [1972] 1 Lloyd's Rep 182. The onus is on the defendant to show how much damage occurred outside the relevant period: Clarkson v Modern Foundries Ltd [1957] 1 WLR 1210. The fact that suffering continues over a period does not make the tort a continuing one: Cartledge v E Jopling & Sons Ltd [1963] AC 758. If there was no tortious act within the period, the plaintiff can only recover in respect of fresh damage arising within the period: Darley Main Colliery Co (ibid) especially per Lord Halsbury at 133.  It is a question of fact and degree whether the damage is sufficiently distinct to result in a separate cause of action (Mount Albert Borough Council v Johnson (1979) 2 NZLR 236) but such cases are very rare."

5. In this case the plaintiffs have pleaded that the defendant entered upon the property and wrongfully constructed the stormwater pipe and that they it was not authorised by statute or private agreement to construct the pipe on or through the property.  They say that the continued presence of the stormwater pipe on the property without statutory authorisation or agreement is a continuing trespass.  The drainpipe was constructed on the property in 1984 and it was placed there under a purported exercise of authority under s 83 of the Health Act. I consider that the plaintiffs are clearly time barred under both s 38 and s 47A of the Limitation Act from challenging the legality of the defendants' actions in 1984.  The construction of the pipe by the defendants' predecessor was done under s 83 of the Health Act. It was not therefore a trespass. The plaintiffs are, in my view, time barred from challenging the purported exercise of that statutory power. If, as I consider, the initial construction of the pipe was not a trespass then it is not arguable to say that it is a continued trespass to leave the pipe on the land and it cannot be argued that every day the pipe is on the land is a continuing trespass. Therefore the plaintiffs cannot recover damage for the existence of the pipe on the land over the past year or, if an extension is granted under s 47A of the Limitation Act, over the past six years.  Much more is needed to get a continuing trespass.  The initial conduct in question needs to be a trespass, and in this case it is not, and/or there needs to be further acts of trespass.  If, for example, the trespass concerned was the defendant's removal of gravel from the plaintiff's land and that had gone on regularly for the past 10 years then the removal of gravel over the past six years could be actionable but over the first four years would not.

6. This is illustrated by Darley Main Collery Co.  In that case the defendant mined coal which caused subsidence to the plaintiffs' houses on top of the land in 1868.  That was the initial trespass to the land.  The defendant paid compensation and stopped mining.  The limitation period was six years.  In 1882, further subsidence occurred due to the earlier mining.  It was held in the House of Lords that a second action could be brought in relation to this further subsidence and that it was not time barred.  It was held that no cause of action now lay for the excavation of the mine but every new subsidence proceeding from the same act or omission of the defendants is a new cause of action for which damages may be recovered.

7. Contrast that case with the present one where the continued presence of the stormwater pipe on the property since 1984 is said to be the continuing trespass and the material damage it has caused to the property is that the owners are not allowed to build over the drainpipe for any permanent purpose and this has caused a decrease in value of the property of $23,715.  The relief sought is that the stormwater drain be removed at the defendant's expense or that the defendant be permanently restrained from damaging or entering the plaintiffs' property without the plaintiffs' express written permission.

8. The plaintiffs plead in par 15 of the amended statement of claim that further material damage to the property has been caused by the leakage of stormwater from the drainpipe and the manholes associated with it, causing flooding and subsidence of the soil on the property.  No particulars of that are given although I know from an affidavit that that occurred in January 1999.  The blocked and damaged pipe was repaired by the defendant.  No particular claim for loss of damage in relation to that flooding and subsidence is given.  As stated above the prayers for relief concern more major matters namely, that the drainpipe be removed from the property or that the defendant be restrained from damaging or entering the property without the plaintiffs' written permission.  The plaintiffs have no arguable cause of action which would secure this relief and summary judgment should be entered for the defendant.  If the plaintiffs wish to claim compensation for the flooding of the land and subsidence which occurred in January 1999 they may do so in a separate action.  It does not produce the relief claimed in this action.

9. I do not propose to alter my previous orders.