Tavitian v Commissioner of Highways
[2018] SASC 179
•30 November 2018
SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
TAVITIAN v COMMISSIONER OF HIGHWAYS
[2018] SASC 179
Ruling of The Honourable Chief Justice Kourakis
30 November 2018
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - IN GENERAL AND PRELIMINARY MATTERS
The plaintiff seeks damages against the defendant pursuant to several causes of action. By interlocutory application, the defendant seeks, inter alia, orders that the plaintiff provide further and better particulars of the claim based on nuisance and that the plaintiff's claim based on trespass be struck out.
Held, per Kourakis CJ:
1. The plaintiff's action in trespass is struck out.
2. The plaintiff is ordered to file and serve particulars in respect of the action based in nuisance.
3. The plaintiff is permitted to plead an action in negligence based on the undertaking of the works but must particularise the additional damage suffered within the relevant period of time.
Limitations of Action Act 1936 (SA); Local Government Act 1999 (SA) s 215, referred to.
Williams v Miloton (1957) 97 CLR 465; Southport Corporation v Esso Petroleum Co Ltd [1954] 2 QB 182, applied.
Reynolds v Clarke (1725) 92 Eng Rep 410; Fletcher v Rylands (1865) 159 Eng Rep 737; Nicholls v Ely Beet Sugar Factory [1931] 2 Ch 84, considered.
TAVITIAN v COMMISSIONER OF HIGHWAYS
[2018] SASC 179Civil
KOURAKIS CJ: The plaintiff, Mr Tavitian, has brought an action against the Commissioner of Highways (the Commissioner) seeking damages for the adverse effects of the run‑off of water onto his farming land, which is situated between Gawler and Daveyston, from the adjacent Sturt Highway close to its junction with Gomersal Road. Mr Tavitian claims that the damaging run-off has been caused by road works undertaken on the Sturt highway in 2008. Those works included increasing the diameter of one of the cross-pipes, laid by the Commissioner on his land, through which run-off from the highway is channelled. Mr Tavitian pleads that the discharge from the cross-pipe is directed onto his land and runs into a dam about 85 metres from the Sturt highway boundary. Mr Tavitian pleads that the run-off has caused flooding, soil erosion and damage to his land.
By an interlocutory application dated 8 February 2018 the Commissioner seeks orders that:
1.The plaintiff’s claim based upon the cause of action for trespass be struck out;
2.The plaintiff provide further and better particulars of the plaintiff’s claim based upon his cause of action in nuisance; and
3.The plaintiff be refused permission to file the proposed fourth statement of claim insofar as it includes further causes of actions in negligence and breach of statutory duty.
The Commissioner brings the application pursuant to Rule 104 of the Supreme Court Civil Rules 2006 (SA) on the grounds that neither the third statement of claim, nor a proposed fourth statement of claim, disclose a reasonable cause of action. In the proposed fourth statement of claim filed on 13 December 2017 Mr Tavitian pleads an action in trespass as follows:
…
3.One of the cross pipes is about 1050mm in diameter located at chainage 7276, the other 650mm diameter located at chainage 6698.
4.The discharge of the 1050mm cross pipe is directed to the Plaintiff’s land and runs to a dam on the Plaintiff’s land located about 85 meters from the Sturt Highway boundary.
…
9.Flooding, further erosion and damage to the Plaintiff’s land has been caused by the Defendant’s subsequent repeated use of the Plaintiff’s land to discharge and drain highway run-off into the Plaintiff’s land, since December 2008.
10.In a letter dated 31 March 2010 to an officer of the Defendant, the Plaintiff made it known that the highway run-off was causing further damage to the Plaintiff’s land and damage to the crop. Soil erosion and crop washout, and that the cavities caused previously, had become a channel. Also, that affected land was dis‑proportionately wet and soggy. The Plaintiff requested that highway run‑off not be directed to his land.
…
13.The erosion caused sub-surface cavities, channels which have progressively enlarged with the repeated discharge and draining of the highway run-off into the Plaintiff’s land, since the upgrade works.
14.Prior to the erosion and damage to the Plaintiff’s land, persons and vehicles could freely and safely traverse that area. Subsequent to the erosion and damage, the affected area cannot be freely and safely traversed by persons and vehicles. Danger of injury to persons and damage to vehicles and machinery which may fall into the cavities or channels has been created as a consequence of the erosion.
(Emphasis added)
Mr Tavitian also pleads that he took various steps to bring the damage caused by the run-off to the Commissioner’s attention and that he has suffered loss from the erosion caused by the run-off, the noxious chemicals in the run-off from the highway and by reason of an infestation of weeds.
The Commissioner contends that trespass is constituted by conduct which without lawful justification directly encroaches on the subject land. Damages for indirect injury historically were recovered in the action ‘on the case’[1] from which evolved the modern actions in nuisance and negligence.
[1] Green, H. Marlow, (1997), ‘Common Law, Property Rights and the Environment: A Comparative Analysis of Historical Developments in the United States and England and a Model for the Future’, 30 Cornell International Law Journal 2, 542, 545; see also Halsbury’s Laws of Australia, (at 21 March 2018) 415 Tort, ‘I. General Principles of the Law of Torts’.
In Williams v Miloton[2] the High Court emphasised that the two causes of action are not, and never were, the same. In that case an action for damages for injury caused when the plaintiff was struck whilst riding his bike was commenced more than three, but less than six, years after the date of the occurrence. The Limitations of Action Act 1936 (SA) provided for a limitation period of three years for actions in trespass but six years for actions which could have been brought as trespass ‘on the case’. On a proper construction of the interrelationship between those provisions the High Court held that the action could be brought within a period of six years even though it might also have been brought as an action in trespass and, as such, subject to a three year limitation period.
[2] (1957) 97 CLR 465 at 474.
In Flemming’s Law of Torts it is stated:
Trespass may be committed not only by an entry in person, but equally by propelling an object or a third person onto the plaintiff’s land … Here, again, the old distinction between direct and indirect invasion looms large. The discharge of water may be trespass or case [eg, nuisance] according to whether it is immediately poured upon or only ultimately flows onto the plaintiff’s property, as being first discharged on somebody else’s land and later carried down to the plaintiff’s.[3]
[3] Flemming’s Law of Torts (10th edition, 2011) 51-52 (citations omitted). See also: Salmond and Heuston on the Law of Torts (18th edition, 1981) 5: ‘The act of throwing water into one’s neighbour’s premises is a trespass; but to fix a spout in such a fashion that rain water is discharged by it into those premises is a mere nuisance actionable in case, and to discharge water on to A’s property so that it is carried down to B’s property is a mere nuisance as regards B.’; Clerk and Lindsell on Torts (17th edition, 1995) 909.
In Southport Corporation v Esso Petroleum Co Ltd and Another,[4] the defendants’ oil tanker, the Inverpool, discharged oil into the sea, which was carried by the tide to the plaintiffs’ land on the foreshore. In the Court of Appeal, Denning LJ held that the claim for trespass was not available:
In order to support an action for trespass to land the act done by the defendant must be a physical act done by him directly on to the plaintiff’s land. That was decided in the year 1498 in the Prior of Southwark’s case[5] … the prior complained because the defendant, who was a glover, had made a lime pit for calf-skins so close to a stream as to pollute it. It was held that if the gloved had dug the lime pit in the prior’s soil the action ought to be trespass; but if it was made in the glover’s soil it should be in case. The same distinction was taken in Reynolds v Clarke,[6] where the defendant put a rainspout on his house from which water poured on to the walls of the plaintiff’s house and rotted them. The plaintiff brought an action for trespass, but failed because he should have brought an action upon the case. The reason was because the prejudice to the plaintiff was not immediate, but consequential. … Applying this distinction, I am clearly of the opinion that the Southport Corporation cannot here sue in trespass. This discharge of oil was not done directly on to their foreshore, but outside in the estuary. It was carried by the tide on to their land, but that was only consequential, not direct. Trespass, therefore, does not lie.[7]
[4] [1954] 2 QB 182, 195-196 (footnotes omitted).
[5] (1498) Y.B. 13 Hen. 7, f. 26, pl. 4.
[6] (1726) 1 Str. 634.
[7] On appeal to the House of Lords, Lord Tucker agreed with Denning LJ: Esso Petroleum v Southport Corporation [1956] AC 218, 244. The other Lords of Appeal did not consider it necessary to decide the point.
The same principles were applied to water cases in Reynolds v Clarke,[8] Fletcher v Rylands,[9] and Nicholls v Ely Beet Sugar Factory.[10]
[8] (1725) 92 Eng Rep 410; Ld Raym 1403. Lord Raymond CJ, with whom Fortescue and Reynolds JJ agreed, held that the defendant, in placing a rainspout on his house from which the water poured onto the plaintiff’s land, was not liable in trespass: ‘the plaintiff could not maintain an action of trepass vi et armis for the damage he sustained by the rain water flowing out of this spout, but ought to have brought an action on the case… The distinction in law is, where the immediate act itself occasions a prejudice, or is an injury to the plaintiff’s person, house, land, and where the act itself is not an injury, but a consequence from that act is prejudicial to the plaintiff’s person, house, land, etc. In the first case trespass vi et armis will lie; in the last it will not, but the plaintiff’s proper remedy is by an action on the case’.
[9] (1865) 159 Eng Rep 737; 3 H & C 775. The defendant’s reservoir leaked water onto the plaintiff’s land. Martin B, with whom Pollock CB agreed, stated at 476: ‘I entertain no doubt that if the defendant’s directly and by their immediate act cast water upon the plaintiff’s land it would have been a trespass, and that they would be liable to an action for it. But this they did not do. What they did was this, they dug a reservoir in their own land and put water in it, which, by underground openings of which they were ignorant, escaped into the plaintiff’s land. I think this a very different thing from a direct casting of water upon the land, and that the legal liabilities consequent upon it are governed by a different principle.’
[10] [1931] 2 Ch 84 at 87. Farwell J stated ‘The defendants are not discharging anything directly on to the plaintiff’s property, but on to an intermediate property, and the discharge is carried down to the plaintiff’s property. That is not strictly speaking trespass. It is nuisance’.
Mr Tavitian does not allege that the pipe extends to the boundary of, or onto, his land. On the existing state of the law therefore, Mr Tavitian does not have an action in trespass. Mr Tavitian correctly observes that applications to strike out pleadings should be made promptly. He submits that his claim in trespass was made as early as 3 December 2015. However the trial in this matter is still some time away. The appropriate case management of this action requires that those parts which have no reasonable prospect of success are not allowed to linger any longer than is necessary. It is plain that the action in trespass cannot be sustained.
Mr Tavitian also relies on a reference to his pleaded action in trespass in an earlier interlocutory judgment given in this matter in which it was not suggested that the action in trespass did not lie. That passage did not consider whether the pleaded facts satisfied the elements of the action of trespass and did not address the question whether the action had any reasonable prospect of success. Rather, it dealt, in a different context, with what might have been the case if the Commissioner had taken an easement over Mr Tavitian’s farming property to allow the passage of the run-off onto it. Mr Tavitian also submits that the Commissioner’s intention was to direct the run-off onto Mr Tavitian’s farming property. Whether that be so or not any such intention could not transform indirect action into direct action.
I order that the pleaded claim in trespass as it stands in the third statement of claim be struck out. I would not give permission for it to be pleaded as it is in the proposed fourth statement of claim.
Further particulars of the action for nuisance
Insofar as the action is based on nuisance, Mr Tavitian claims damages for the physical effects on the land of the run-off but does not quantify the damages he seeks by reference to the diminution in the value of his interest in the land. He asserts a loss of income from farming the land but does not particularise that loss. His claim is simply for the remediation of the erosion caused by the run‑off. Whether or not the cost of those earthworks is the proper measure of damages requires a consideration of the adverse consequences, if any, on the value of the land or on its productive capacity.
I therefore direct that Mr Tavitian file and serve particulars of:
1.Any difference in the current value of the land in its present state and the value of the land had it not suffered the effects of the run-off;
2.The use which has been made of the land since the works were constructed indicating the crop or crops which have been planted since that time, the extent of the produce harvested, any livestock production from the farm and the value of any income earnt from those activities; and
3.The remedial work required to restore the land to the state it was in before any erosion caused by the run-off since 2008 and the cost of that work.
Proposed claims in negligence and breach of statutory duty
Mr Tavitian, by his proposed fourth statement of claim, seeks to plead a case in negligence as follows:
26 Further and/or in the alternative, the Defendant owed a duty of care to the Plaintiff which the Defendant has breached:
Particulars of breach of duty of care of the Defendant
26.1The Plaintiff refers to and repeats paragraphs numbered 3 to 18 inclusive and 20 to 24 inclusive of Part 2 above;
26.2Failing to take action on complaints made by the Plaintiff to the Defendant;
26.3Neglecting or failing to take any adequate steps to minimise or prevent or remedy damage to the Plaintiff’s land;
26.4Neglecting or failing to take any adequate steps to minimise or prevent or remedy further damage to the Plaintiff’s land;
26.5Neglecting or failing to take any adequate steps to prevent the creation of a safety hazard on the Plaintiff’s land;
26.6Neglecting or failing to take any steps to remedy the safety hazard on the Plaintiff’s land.
An action in negligence depends on the proof of actual damage. Mr Tavitian may bring an action in negligence for damage suffered within the six year period preceding the institution of the action. Mr Tavitian has not pleaded any material facts upon which an extension of time might be granted. Insofar as the run-off of water has caused additional damage to the land within that period, and into the future, Mr Tavitian may bring a claim in negligence. However, the proposed fourth statement of claim does not plead with any particularity what additional damage was caused within that relevant period of time. I grant Mr Tavitian permission to plead an action in negligence based on the undertaking of the works, but he must particularise the additional damage suffered within the relevant period of time.
I record here that Mr Tavitian did not submit that I should order that the amendment operate from the commencement of the action. It is arguable that the facts and circumstances of the justiciable matter raised by his action encompassed a claim in negligence even though it was not expressly pleaded. I will hear the parties on whether I should make such an order.
Insofar as Mr Tavitian pleads a claim in negligence based on a failure to take remedial steps because of correspondence he entered into, the facts pleaded do not identify the basis upon which the Commissioner had any duty to act on Mr Tavitian’s giving of notice. Either the Commissioner is liable for the damage because he undertook the works in 2008 or he is not. The bringing of the Commissioner’s attention to the ongoing damage cannot create a liability, if undertaking the works did not. Accordingly, those parts of the statement of claim that rely on Mr Tavitian’s correspondence with the Commissioner are struck out.
Mr Tavitian also claims that the Commissioner breached his statutory duty. The claim is based on s 215 of the Local Government Act 1999 (SA). Section 215 provides:
215—Special provisions for certain kinds of roadwork
(1)If a council changes the level of a road, the council must—
(a) ensure that adjoining properties have adequate access to the road; and
(b) construct any retaining walls, embankments or other structures necessary to provide protection required in consequence of the change of level.
(2)A council may carry out roadwork to allow water from a road to drain into adjoining property if, in the council's opinion—
(a) there is no significant risk of damage to the adjoining property; or
(b) the roadwork does not significantly increase the risk of damage to adjoining property.1
(3)A court may award damages against the council for damage caused by the drainage of water into an adjoining property in consequence of roadwork carried out by the council under subsection (2) only if satisfied that the council acted on an unreasonable basis.
(4)A council must give reasonable notice of proposed action to drain water into land under subsection (2) to the owner of the land—but notice is not required in a case of urgency.
Note—
The council may of course acquire a licence or easement to permit the drainage of water into the adjoining property.
The operative provision of s 215 is s 215(3). That subsection provides an immunity. It does not impose a separate statutory duty. I do not give Mr Tavitian permission to plead that the Commissioner breached s 215 of the Local Government Act 1999 (SA).
Orders
1.The plaintiff’s claim based upon the cause of action for trespass be struck out.
2.The plaintiff be granted permission to plead an action in negligence based on the undertaking of the works but must particularise the additional damage suffered within the relevant period of time.
0
1
1