Hargreaves v The Radio Network Limited HC Christchurch CIV 2002 409 725
[2010] NZHC 244
•16 March 2010
IN THE HIGH COURT OF NEW ZEALAND
CHRISTCHURCH REGISTRY
CIV 2002 409 0725
BETWEEN PENELOPE ANN HARGREAVES
Plaintiff
ANDTHE RADIO NETWORK LIMITED First Defendant
ANDTHE RADIO NETWORK OF NEW ZEALAND LIMITED
Second Defendant
Hearing: 3 February 2010
Appearances: S J Grey for Plaintiff
P R Jagose for Defendants
Judgment: 16 March 2010
JUDGMENT OF CHISHOLM J
A. Extension of time for lodging review application granted.
B. Review granted.
C. Claim reinstated, with limitation issue to be determined at trial. D. Costs in terms of [98].
Introduction
[1] On 11 October 2002 the plaintiff issued this proceeding seeking damages for bodily injury and other loss/damage alleged to have been caused by emissions from a
radio mast operated by the defendants. Leave to bring the claim for bodily injury
HARGREAVES V THE RADIO NETWORK LIMITED AND ANOR HC CHCH CIV 2002 409 0725 16
March 2010
after the expiration of two years was sought pursuant to s 4(7) of the Limitation Act
1950. The defendants pleaded that the proceeding was barred by s 4(1) of that Act and sought to have it struck out on that and other grounds.
[2] By judgment delivered on 23 May 2003 (the first strike out decision) Associate Judge Christiansen refused leave to bring the personal injury claim outside the statutory two year period. But he declined to strike out the remainder of the claim. Thereafter two further amended statements of claim were filed, but in other respects there was little progress in advancing the claim over the next few years. For the greater part of this period the plaintiff was acting for herself.
[3] On 3 March 2008 the defendants made a further application for the proceeding to be struck out on the ground that it was barred by s 4(1) of the Limitation Act. After this application was filed, but before it was heard, the plaintiff filed a fourth amended statement of claim. By decision delivered on 20 November
2008 (the second strike out decision) Judge Christiansen struck out the proceeding
on the basis that it was time barred.
[4] The plaintiff now seeks to have the second strike out decision reviewed on two primary grounds:
(a)There was no jurisdiction for the Judge to revisit and overturn his earlier decision.
(b)The Judge’s conclusion that the causes of action were barred by the Limitation Act was wrong in law and fact.
This application for review was not filed until 16 December 2008 and is therefore out of time: r 2.3(2) of the High Court Rules. Any extension of time is opposed.
[5] Voluminous affidavit evidence was before the Associate Judge and a further affidavit with numerous exhibits was filed in support of this application for review. Although leave was not obtained, no objection was taken by the defendants to the further affidavit.
Background
[6] In 1980 Christchurch City Council granted planning consent to a predecessor
of the defendants for the transmission of AM radio signals from a radio mast at Ouruhai, near Christchurch, which is a rural locality. This consent did not authorise FM transmissions which involve very high frequencies. AM broadcasts began in 1983.
[7] FM transmissions from the mast began in 1990 and subsequently other FM stations were added. While at the time the defendants (and I use this terminology to include their predecesesors) believed these broadcasts were covered by existing use rights, they ultimately accepted that this was not the case. For some years neighbouring residents were unaware that FM broadcasts were being made from the mast.
[8] In 1992 the plaintiff, a racehorse trainer, purchased a farm next door to the property on which the mast was erected. After moving to the property in 1994 she experienced serious interference with portable telephones and some equipment that was being used in connection with her horse training business. Later it came to her knowledge that FM transmissions were being made from the mast.
[9] Other residents were also experiencing interference with telephones, televisions, radios and other appliances. This led to an informal meeting between local residents and representatives of the defendants on 7 October 1996. The defendants agreed to engage the National Radiation Laboratory (NRL) to investigate.
[10] On 11 October 1996, six years before the proceeding was issued, the plaintiff contacted her doctor to discuss symptoms of possible radiation sickness. She was advised that he could not undertake practical investigations to measure radiation and could not help her in the overall management of her condition. He suggested that avoidance of the environment might be the most appropriate way to manage her symptoms.
[11] Also on that date the Council wrote to residents advising that the defendants had been asked to apply for a resource consent to address the FM transmissions. By this time other residents and animals within the neighbourhood were suffering ill health. As a result of the deteriorating health of herself, her daughter and her animals, the plaintiff moved off her farm with most of her animals in late October 1996, but she continued to work at the farm on a daily basis.
[12] The first results of measurements taken around the transmitter were sent by NRL to one of the plaintiff’s neighbours on 18 October 1996. Further monitoring was undertaken. NRL considered that the readings were too low to cause harm. But the residents and animals continued to experience health problems.
[13] Application for a retrospective resource consent authorising FM emissions was heard on 9 and 10 April 1997 by a Commissioner appointed by the Council. The application was strongly opposed by the plaintiff and others, and extensive evidence was given for and against the application. In his decision delivered on 22 May 1997 the Commissioner accepted that “the health problems are real and are being suffered by people and animals that live in or at least spend some time in the area”. But he considered that the emissions from the mast were too low to cause these problems and that increased FM transmissions should be authorised.
[14] An appeal to the Environment Court was lodged by the plaintiff and others, and the defendants cross-appealed in relation to some of the conditions. Later the City Council lodged an application with the Environment Court for an enforcement order directing cessation of FM transmissions. The hearing before the Environment Court began on 9 June 1999 and continued for three weeks until 25 June when it was adjourned to resume at the end of August.
[15] By the time of the adjournment the defendants had presented their evidence, including expert evidence, which was directed towards disproving any harmful human and animal health effects from the transmissions. The plaintiff and her co- appellants had provided the defendants with their briefs which included expert evidence supporting the proposition that radio frequency emissions from the mast were causing adverse health effects for both humans and animals.
[16] During the adjournment the parties negotiated and reached agreement about consent orders that would be sought from the Environment Court. These orders, which were made by the Court on 10 September 1999, authorised the FM transmissions to continue on a limited scale subject to amendment of a number of the conditions imposed by the Commissioner. The plaintiff claims that by this time many of the residents were in poor health and distressed after years of living in the environment of the mast, threats of substantial orders for costs against them had been made, and they had been misled about the actual level and effects of the emissions.
[17] After the Environment Court made the consent order the plaintiff hoped that she would be able to return to her farm, but, having found that her health problems returned after she did so, she tenanted the house and rented out some of the land for grazing. Subsequently further research and expert advice convinced her, first, the health symptoms being experienced by humans and animals in the neighbourhood were attributable to emissions from the mast and, secondly, they had been misled about the severity and implications of the emissions.
[18] This proceeding was issued on 11 October 2002. In her initial statement of claim the plaintiff pleaded nuisance, negligence and trespass.
[19] The first cause of action (nuisance) alleged that since 21 December 1995 or thereabouts the defendants had permitted emissions to pass across the plaintiff’s land when they knew or should have known that such emissions would be likely to cause injury to people and animals on the land and interference with the plaintiff’s reasonable enjoyment of the land. Damages and injunctive relief were sought.
[20] The second cause of action (negligence) alleged that the defendants owed a duty of care to persons in the vicinity of the transmitter to take reasonable care not to cause harm or damage to such persons and that such duty had been breached. The allegations of breach included failure to take reasonable steps to prevent harm, to monitor, to redirect the emissions, and to warn people in the vicinity. Again damages and injunctive relief were sought.
[21] In the third cause of action alleging trespass the plaintiff effectively repeated the nuisace allegations and pleaded that they constituted trespass by the defendants
on the plaintiff’s land. This cause of action was not carried through into later statements of claim.
[22] The defendants sought to have that statement of claim struck out on numerous grounds. Although the first strike out decision traversed all those grounds, this summary can be confined to the limitation aspect (excluding the plaintiff’s application for leave to bring the claim for personal injury beyond the two year period specified in s 4(7) of the Limitation Act).
[23] Applying G D Searle & Co v Gunn [1996] 2 NZLR 129 (CA), 132, Associate Judge Christiansen proceeded on the basis that in terms of s 4(1) time begins to run from the date when a plaintiff could, with reasonable diligence, have discovered the damage. He concluded:
[60] Whilst there is some force in the submissions of the defendants that the plaintiff knew in July 1996 all she needed to know in order to bring these proceedings, there is, on balance, at least as much, if not more, reason to accept that until she consulted her doctor on 11 October 1996, or soon thereafter, that to her mind the link between her ill health and EMR emissions was established. I cannot conclude that the proceedings had not been brought later than 6 years from the time when the plaintiff knew, or was reasonably able to discover, the cause of the damage sustained.
Following that the Judge devoted his attention to the application to bring the claim
for personal injury outside the two year period, which he declined. Although not expressly stated by the Judge, it is implicit in his decision that he rejected the defendants’ contention that the proceeding should be struck out on limitation grounds.
[24] After delivery of that judgment timetable orders were made for the filing of various documents, including amended pleadings. Once the second amended statement of claim had been filed the defendants indicated that they would seek to have it struck out because it was essentially a claim for personal injury in the guise
of a claim for damages. Ultimately parts of that statement of claim were struck out
by consent.
[25] Late in 2003 the plaintiff’s counsel was granted leave to withdraw and the matter was adjourned to enable the plaintiff to obtain further counsel. In the event the plaintiff decided to act for herself. A third amended statement of claim was filed
in April 2004. Over the next three years or so no formal steps were taken, although
it appears that for at least part of that time the plaintiff was attempting to resolve security for costs issues. When the matter next came before the Associate Judge on
28 November 2007 the plaintiff indicated that she was endeavouring to secure the services of counsel and that she was endeavouring to satisfy the order for security for costs.
[26] Initially the second strike out application filed on 4 March 2008 was based on failure to provide security for costs and limitation. The first ground was abandoned, security having been satisfied.
[27] On 2 October 2008 the plaintiff filed a fourth amended statement of claim which runs into 57 pages plus exhibits. Although it contains much more detail about the nature and extent of the loss and damage to animals on the plaintiff’s property and the respects in which the duty of care was breached, the underlying pleading of nuisance and negligence remained pretty much the same as the first statement of claim.
[28] The plaintiff represented herself at the second strike out hearing.
Judgment under review
[29] Associate Judge Christiansen observed that the defendants were “in effect, asking me to revisit my earlier decision not to strike out the negligence and nuisance claims”: at [7].
[30] After discussing the fourth amended statement of claim and summarising relevant strike out principles, the Judge turned to the plaintiff’s case which he summarised at [14]:
(a) She and her animals were exposed to radio frequency transmissions from
1992 to 1996.
(b)Although prior to October 1996, indeed as is apparent from a letter earlier written by her, from 1993, numerous and significant illnesses and ailments were apparent among her animals.
(c) It was not until late 1996 Ms Hargreaves was given information suggesting
a link between radio frequency transmissions to the ill health/ailments of her animals, as well as to herself.
(d)Subsequently, she has learned, she says, that the defendants have operated illegally and beyond the extent authorised; that misinformation was provided to the Environment Court when consent was obtained.
By way of overview the Judge noted that whilst the plaintiff had conceded she had become aware of the signs of ill health and ailments suffered by her animals, herself and others before October 1996, it was only after that time that she became aware of
the causes.
[31] With reference to the evidence the Judge concluded that the plaintiff was aware from July 1996 of all the information that she needed in order to bring this proceeding. On the Judge’s analysis the plaintiff knew at that time not only that her animals were ill, and that she attributed this to the radio broadcasts, but that the defendants were transmitting FM as well as AM from the mast.
[32] Then the Judge explained why he had reached the conclusion that his first strike out decision was wrong:
[21] ... I was previously prepared to accept, on balance, that there was good reason for [the plaintiff] not being aware prior to 1996 of the causes for the damages she claims. More than five years has passed since I took that position. I am satisfied
it was a wrong position to take. Rather, I am of the view that Ms Hargreaves’ state
of knowledge of the causes of the understanding of the damage to her animals has no bearing on the issues before this Court. Instead, the issues concern the occurrence of those factors giving rise to the claim, rather than Ms Hargreaves’ knowledge of those factors.
[22] In essence, in support of her claim, Ms Hargreaves proclaims that only post
1996 did she learn that the defendants exceeded their resource consents in that they exceeded the radio transmission levels they were permitted. There seems little doubt that the defendants did exceed the resource consents, or that there was local discontent over this. However, demonstrating the nexus between those electro magnetic emissions and the alleged damage seems, on the evidence available, very difficult, especially when the evidence Ms Hargreaves provides is largely anecdotal. In essence, Ms Hargreaves’ claim is that although she was aware of the effects upon her animals pre late 1996, it was not until afterwards that she appreciated the reasons why.
[23] That is not, I think, sufficient excuse for her failure to file and particularise her claim earlier. Unlike any claim concerning bodily injury, there is not in any claim for economic damage, an element of reasonable discoverability available.
This conclusion that no element of reasonable discoverability was available reflected
Murray v Morel & Co Ltd [2007] 3 NZLR 721 (SC) which the Judge discussed at
[30]. His interpretation was that the case before him was not about the discoverability of the cause, but rather when the material damage allegedly flowing from it was apparent.
[33] Any possibility that the claim was saved by the fraud or mistake provisions of
s 28 of the Limitation Act was rejected by the Judge. He commented that the relief sought was not based on the consequence of a mistake and that any mistakes that might have occurred were by witnesses in relation to the Resource Management proceeding which were “irrelevant for present purposes”: at [25].
[34] The Judge also concluded that the causes of action in nuisance and negligence were continuing causes of action, there being a “quality of continuance both in the breach and the obligation”, and that time began to run at the point at which the cause of action first accrued: Murray v Liza Jane Holdings Ltd (1993) 6 PRNZ 251. It was not a case where there had been a change of circumstances or a new event giving rise to a new cause of action, and the fact that the damage continued to occur during the limitation period did not postpone or defer commencement of the limitation period. As was held in Moot v Crown Crystal Glass Ltd [1976] 2 NZLR 268, damage that is a continuation or progression of damage arising during the original limitation period could not be claimed. Rather, the successive damage must be sufficiently distinct to result in a separate cause of action.
[35] By way of summary the Judge said this:
[33] Ms Hargreaves’ causes of actions accrued as soon as the damage occurred. The defendants’ radio transmissions in the vicinity of her property were in existence from the time she acquired that property in July 1992. She reports qualifying damage from 1993, but there is no separate and distinct foundation pleaded for any cause of action accruing subsequently, arguably within the six year period ending with the commencement of the proceeding. Rather, the causes are expressly
continuous in nature and the losses claimed entirely consequent upon the damage alleged.
The proceeding was struck out.
Extension of time for review
[36] Factors relevant to whether or not time should be extended are: length of the delay; explanation for it; any prejudice resulting from the delay; and the substance
or merit of the application: Sutton v NZ Guardian Trust (1989) 2 PRNZ 111.
[37] According to Mr Jagose the application for review was nearly four months late. I do not understand that submission. The second strike out decision was delivered on 20 November 2008 and according to the date stamp the appellant’s “appeal” (which I have interpreted as an application for review) was filed on 16 December 2008. On my calculation it is a little over two weeks out of time. Ms Grey did not address the issue.
[38] Presumably the explanation for the delay is that the plaintiff was acting for herself at the time the second strike out decision was delivered and the application
for review was lodged. There is no suggestion that the defendants have been prejudiced. Mr Jagose claimed that the “inappropriate breadth” of the plaintiff’s present challenge should be taken into account on the basis that the real topic of the challenge is the Associate Judge’s first strike out decision. I do not see it that way. The present challenge relates very much to the second strike out decision and it is not a challenge that can be dismissed out of hand.
[39] In all the circumstances I am satisfied that this is an appropriate case for an extension of time, and the necessary extension is granted.
First ground of review – no jurisdiction to revisit and overturn earlier decision
[40] This ground of review relies on r 262 of the High Court Rules (subject to minor changes now r 7.52) which was in force at the relevant time:
262 Limitation as to second interlocutory application
(1)A party who fails on an interlocutory application must not apply again for the same or a similar order without first obtaining the leave of the Court.
(2) The Court may grant leave only in special circumstances.
It is the plaintiff’s case that the defendants’ second strike out application breached this rule, that the Judge had no jurisdiction to hear it, and that the Court should now use its powers under r 7.51(1) of the new rules to rescind the order striking out the proceeding.
[41] Those allegations were rejected by Mr Jagose. He submitted: having partially dealt with the time limitation question in 2003, the Associate Judge was entitled to “complete the task” in 2008, better informed by the recent Supreme Court authority; each emanation of the plaintiff’s claim re-opened her proceeding to consideration of limitation questions; the defendants had persistently signalled their intention to maintain their opposition to Mrs Hargreaves’ claims and had been permitted to do so; and there was no misuse of the rule which was never intended to
be deployed in the manner now attempted by the plaintiff.
[42] In reply Ms Grey argued that it was not open to a defendant to bring a strike out application without leave under r 262 every time a new statement of claim is filed. To the contrary, it is only if the new pleading introduces a new cause of action that this would be the case, and that was not the situation here. Ms Grey submitted that having failed in 1993 to have the proceeding struck out on limitation grounds, the defendants were not entitled to make a similar application in 2008 without obtaining the necessary leave.
[43] To determine which argument should prevail it is necessary to begin by examining the two applications.
[44] In their first application filed on 28 November 2002 the defendants sought summary judgment and/or an order striking out the plaintiff’s causes of action on various grounds including:
(d) The plaintiff’s causes of action are brought out of time, in that the elements
of the cause of action were complete in mid 1993 (nuisance), August 1994 (negligence) and July 1992 (trespass) ...
To the extent that the application related to limitation issues, it was stated that the application was made in reliance on s 4(1) of the Limitation Act.
[45] The second application brought by the defendants on 4 March 2008 sought that all causes of action set out in the third amended statement of claim be struck out. The grounds included:
(b)the causes of action are frivolous and vexatious, and an abuse of process, in that they cannot succeed because they each accrued more than six years before the issue of this proceeding on 11 October 2002.
As already mentioned the other ground was abandoned with the result that limitation was the only ground for strike out. Again the application was expressed to be made
in reliance on s 4 of the Limitation Act.
[46] Clearly both these applications were “interlocutory applications” in terms of
r 262. Apart from the fact that the first application concerned the first statement of claim and the second application the third amended statement of claim (but in the event the fourth amended statement of claim), the substance of the orders sought is the same: strike out of the proceeding on s 4 limitation grounds. Nothing in the amendments in the third or fourth amended statements of claim undermines that conclusion.
[47] I reject the proposition advanced by Mr Jagose that in 2008 the Judge was simply completing the task that he had commenced in 2003. That is certainly not the interpretation that the Judge placed on the matter. His interpretation was that he had not struck out the claim in his first judgment (see the last sentence in [60] of his first decision which is quoted at [23] above) and that on reconsidering the matter five years later he had decided that he had reached the wrong conclusion in his first decision (see [21] of the second decision which is quoted at [32] above).
[48] Given the overall factual scenario I am satisfied that the second application was seeking “the same or a similar order” to the first application and that leave
should have been obtained under r 262. I also accept that the failure to obtain leave means that the second strike out decision was “improperly obtained” for the purposes
of r 7.51:
7.51 Order may be rescinded if fraudulently or improperly obtained
(1)A Judge may rescind any order that has been fraudulently or improperly obtained.
...
The remaining question is whether the Court should exercise its discretion in favour
of rescinding the order.
[49] A key consideration is whether the irregularity is one of technicality or substance. I have come to the conclusion that if leave of the Court had been sought
at the appropriate time it would probably have been granted on the ground that the Supreme Court decision in Murray gave rise to “special circumstances” justifying reconsideration of the limitation issue. It is hard to believe that the Court would have required the parties to wait for the substantive hearing before re-examining the limitation issue in light of that decision. Under those circumstances I decline to rescind the orders made by the Associate Judge.
[50] In reaching that conclusion I have not overlooked the plaintiff’s contention that the Associate Judge acted without jurisdiction when he considered and determined the second strike out application. No authority was cited for that proposition, and I reject it. Rather than being a matter of jurisdiction, this is the very type of situation contemplated by r 7.51(1) which, significantly, confers a discretion on the Court whether or not to rescind the order.
[51] The first ground of review has not been made out.
[52] Perhaps I should add that even if this ground had been made out, I would have been reluctant to intervene if I was satisfied that the claim was time barred. This reflects two matters. First, the Court has a discretion whether or not to grant an application for review: Wilson v Niva Holdings Ltd [1994] 1 NZLR 481, 491.
Secondly, in the scenario that I have just outlined, the effect of allowing the review would be to keep alive a fatally flawed claim that was bound to come to an end when the substantive hearing was reached. No useful purpose would be served by prolonging the agony and putting the parties to unnecessary expense.
Second ground of review – claim not time barred
[53] This ground raises three sub-issues. First, whether the Judge correctly applied s 4(1) of the Limitation Act when he concluded that the causes of action had accrued before 11 October 1996. Secondly, whether his conclusion that the limitation period was not postponed by s 28 of the Act was correct. And, finally, whether he was entitled to regard the two causes of action as continuing causes of action with time beginning to run when the first cause of action accrued.
Was s 4(1) correctly applied?
[54] Section 4(1) relevantly provides:
... the following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say, -
(a) actions founded on ... tort
The underlining highlights the critical issue: when did the causes of action accrue? While the plaintiff maintains that it was after 11 October 1996, the defendants take the converse view.
[55] When developing her argument for the plaintiff Ms Grey emphasised that this
is the first case of its type in New Zealand and that it raises questions similar to those
in early tobacco, asbestos and other “novel technology” litigation about when the cause of action accrues. She warned that the evidence relating to breach of the duty
of care, causation, and harm, is complex and that this case has wide ranging public interest and environmental health implications both in this country and internationally.
[56] According to Ms Grey the cause of action in negligence did not accrue for the purposes of s 4(1) “until all elements of the tort could be established: duty of care, breach of the standard of care, causation and harm”: In support of this she cites Murray at [39]. She categorised this as a “new technology” type case where “the harm was known early, but the cause was not”. This was attributed to a number of factors including the defendants’ denial of the potential for harm, withholding of information by them, and the decisions of the Commissioner and Environment Court that the levels monitored could not cause adverse health effects.
[57] Ms Grey submitted that it would be unjust for the plaintiff’s cause of action
to accrue and the limitation period to expire before the body of knowledge was adequate to establish causation. She submitted that the correct principle is stated in Searle v Gunn and AB & Ors v Ministry of Defence [2009] EWHC 1225 (QB) (5 June 2009) Justice Foskett.
[58] On the plaintiff’s argument the Associate Judge’s conclusion that the cause of action accrued when the first emissions started was “incorrect and irrational because
his findings on the trigger for the limitation period are contrary to the law and facts”. Ms Grey submitted that the cause of action could not accrue until causation could be established. She also submitted that the Judge had arrived at different factual findings in 2008 because he had applied the wrong test to factual findings that were unsupported by the evidence.
[59] Counsel for the plaintiff also submitted that if, as here, there are genuine factual disputes about the accrual date they can only be properly resolved after hearing all the evidence: Commerce Commission v Carter Holt Harvey [2009] NZSC 120. She noted that there are now hundreds of published research reports linking exposure to radio frequency radiation to various adverse health effects as well as reports calling for a review of the relevant New Zealand standard and the management of electro-magnetic radiation in New Zealand.
[60] Under those circumstances, submitted Ms Grey, the Court should be very slow to rule out this novel claim at the strike out stage. She noted that the law is continuing to evolve and that in the asbestos cases the House of Lords adopted a less
onerous test of causation and recognised that over time the principle might be subject
to incremental and analogous developments: Fairchild v Glenhaven Funeral
Services [2003] 1 AC 32 (HL).
[61] For the defendants Mr Jagose argued that that the Judge’s reasoning in his second strike out decision was “utterly orthodox” and reflected Murray. He claimed that to the extent that the plaintiff is seeking to argue that knowledge is decisive, her argument is directly contradictory to that case, the Supreme Court having made it clear that in this type of situation the plaintiff’s knowledge is irrelevant.
[62] I now address these arguments, beginning with Murray.
[63] In that case the Supreme Court, by a majority, rejected the proposition that there is a general principle that a cause of action does not accrue for limitation purposes until the elements are reasonably discoverable by the plaintiff. Tipping J explained:
[69] In my view the numerous references in the Limitation Act to accrual of a cause of action can only be construed as references to the point of time at which everything has happened entitling the plaintiff to the judgment of the Court on the cause of action asserted. Save when the Limitation Act itself makes knowledge or reasonable discoverability relevant, the plaintiff’s state of knowledge has no bearing on limitation issues. Accrual is an occurrence-based, not a knowledge-based, concept. The Limitation Act as a whole is structured around that fundamental starting point. The periods of time selected for various purposes must have been chosen on that understanding. The circumstances of postponement and extension have themselves been similarly framed.
Those observations were endorsed by Blanchard and Henry JJ (and to a lesser extent
by McGrath J) and they are, of course, binding on this Court.
[64] Leaving s 28 aside for the moment, this is clearly not a situation where the Limitation Act itself makes knowledge or reasonable discoverability relevant. Thus the plaintiff’s state of knowledge and reasonable discoverability have no bearing on the limitation issue, and any suggestion to the contrary will run counter to Murray.
[65] It seems to me that whichever way the plaintiff’s argument is construed it ultimately comes back to the proposition that the plaintiff’s causes of action did not
accrue for the purposes of s 4(1) until the plaintiff realised, or ought reasonably to have realised, that the harm she was suffering was caused by the defendants’ radio frequency emissions. This is so whether the argument is based on the plaintiff’s personal knowledge or the state of scientific knowledge at the time about electro- magnetic radiation. Either way the plaintiff’s argument attempts to graft knowledge and reasonable discoverability on to s 4(1).
[66] That was the approach adopted in S v G [1995] 3 NZLR 681 (CA) and Searle
v Gunn. In the first case the plaintiff’s psychological damage was known, but she did not know, and could not have reasonably discovered, that such damage was caused by the defendant’s sexual abuse many years before. And in Searle the plaintiff was aware of her medical problems, but she did not know, and could not have reasonably discovered, that they were caused by her earlier use of an intra- uterine device. In both cases the Court of Appeal decided that the cause of action accrued when it was discovered, or could reasonably have been discovered, that the injury complained of was caused by the actions of the defendant.
[67] In Murray it was considered that those cases represented a substantial departure from the conventional approach to accrual of a cause of action for limitation purposes (see Tipping J at [57]) and the Supreme Court declined to extend the reasonable discoverability concept beyond those cases. Despite that Ms Grey is effectively inviting this Court to do so in this case on the basis that it is a novel claim involving “new technology” and that an injustice can only be avoided if that step is taken. Given Murray it is impossible for this Court to take that step. The plaintiff’s knowledge and reasonable discoverability are irrelevant.
[68] Before turning to the Associate Judge’s decision, I pause to note that in Murray Tipping J discussed the approach that should be adopted in a situation like this:
[33] ... in order to succeed in striking out a cause of action as statute-barred, the defendant must satisfy the Court that the plaintiff’s cause of action is so clearly statute-barred that the plaintiff’s claim can properly be regarded as frivolous, vexatious or an abuse of process. If the defendant demonstrates that the plaintiff’s proceeding was commenced after the period allowed for the particular cause of action by the Limitation Act, the defendant will be entitled to an order striking out
that cause of action unless the plaintiff shows that there is an arguable case for an extension or postponement which would bring the claim back within time.
That approach was recently endorsed by the Supreme Court in The Commerce
Commission v Carter Holt Harvey Limited. The Court commented that there must
be no reasonable possibility that the application was brought within time, and that if there is, the matter must go to trial, with the limitation point being a defence to be assessed on the basis of all the evidence led at trial: at [39].
[69] Now I return to the primary issue: whether the Associate Judge applied the correct test to the facts when he decided that the plaintiff’s causes of action accrued before 11 October 1996. Ms Grey argued that the Judge applied the wrong test. This is based on the Judge’s conclusion at [33] of his second strike out decision (quoted at [35] above) that “Ms Hargreaves’ causes of action accrued as soon as the damage occurred”. Ms Grey claims that the Judge wrongly failed to take into account that causation is an essential element of the causes of action and that the causes of action could not accrue until causation could be established.
[70] In terms of the test laid down by Murray a cause of action will not accrue until the point of time at which everything has happened entitling the plaintiff to the judgment of the Court on the cause of action asserted, this being an occurrence– based, not a knowledge-based, concept. In other words, the Court was applying the traditional approach that accrual relates to the occurrence of all material facts necessary to found the cause of action, rather than knowledge of them. In the case of nuisance the plaintiff will have to establish that radio frequency emissions from the defendants’ mast resulted in substantial and unreasonable interference with her land that was foreseeable. I accept that causation will have to be established. And in the case of negligence the plaintiff will have to establish a duty of care, breach, causation and loss.
[71] When he reasoned that the plaintiff’s causes of action accrued as soon as the damage occurred Judge Christiansen was simply adopting an orthodox approach. In Todd (ed), The Law of Torts in New Zealand (5th edition, 2009) the authors state at 1166:
In cases involving loss of or physical damage to property, the limitation period starts
to run from the time when that loss or damage actually happens. This may be at the time of the defendant’s conduct or some later time.
This reflects that until there is loss or damage there can be no cause of action and that the loss or damage cannot occur without the defendants’ actions that underpin the cause of action. It does not mean that the causation element has been ignored. For limitation purposes occurrence of the conduct complained of coupled with the damage/loss provide the causative link. The claim can be brought once those events have occurred. The plaintiff’s knowledge (or lack of it) is irrelevant.
[72] Having reached the conclusion that the Judge applied the correct test, the next issue is whether he correctly applied it to the facts. Essentially the Judge’s conclusion was that the plaintiff’s land and animals were exposed to radio frequency emissions from the time she acquired her property in July 1992, that she began to suffer damage during 1993, and that her causes of action accrued at that point. On the evidence before the Court these conclusions were inevitable. Indeed, this seems
to be implicit in Ms Grey’s submissions when she said that this was a case “where the harm was known early, but the cause was not”.
[73] Ms Grey was critical that in the second strike out decision the Judge reached factual findings that differed from those he had reached in the first strike out decision
on the same evidence. However, that reflects that in his first decision the Judge looked at the plaintiff’s knowledge and applied the concept of reasonable discoverability whereas in his second decision he was unable to do so in view of Murray.
[74] I am satisfied that in terms of s 4(1) the Judge correctly arrived at the conclusion that the cause of action accrued before 11 October 1996 and that it would
be time barred unless it was saved for other reasons.
Was s 28 correctly applied?
[75] Section 28 provides:
28 Postponement of limitation period in case of fraud or mistake-
Where, in the case of any action for which a period of limitation is prescribed by this
Act, either-
(a) The action is based upon the fraud of the defendant or his agent or
of any person through whom he claims or his agent; or
(b)The right of action is concealed by the fraud of any such person as aforesaid; or
(c) The action is for relief from the consequences of a mistake,-
the period of limitation shall not begin to run until the plaintiff has discovered the fraud or the mistake, as the case may be, or could with reasonable diligence have discovered it:
...
Fraud is not alleged by the plaintiff. Rather, she contends that the commencement of the limitation period is postponed under s 28(c) by virtue of “serious mistakes”.
[76] Ms Grey argued that the defendants and their agent had provided misleading and incorrect information to the Council, to the plaintiff, and to her neighbours. She claimed that the serious mistakes included the defendant’s repeated claim that emissions were too low to cause harm when in fact they knew or should have known: monitoring by their agent was unreliable and seriously under reported emissions over the plaintiff’s land; analysis of the results did not assess all the cumulative sources; the results were incompatible with emissions from similar radio masts; the presence of metal had not been taken into account; best practice had been compromised; their resource consent and Ministry of Commerce licence had not been complied with; and the New Zealand standard only had limited application.
[77] Counsel for the plaintiff also noted that the defendants had claimed that transmissions from the mast required less power than Sugarloaf when the reverse was actually the case. Having become aware of the mistake the defendants failed to correct it. Moreover, the defendants had objected to sub-divisions in the vicinity on the grounds of reverse sensitivity.
[78] Even if all those allegations are made out, it is difficult to see how s 28(c)
could be triggered in this case. On the most liberal interpretation her claim could not
be construed as an action “for relief from the consequences of a mistake”. No relief based on mistake is sought and her pleadings do not refer to mistake. Nor is it implicit in the pleading. Indeed, the substance of the plaintiff’s claim has nothing to do with mistake. To the contrary, it relies on the intentional transmission of radio signals by the defendants and the consequences flowing from their actions.
[79] In Trewin v Flower & Anor [1965] NZLR 8 Wilson J concluded that in order
to come within s 28(c) the plaintiff must assert a legal or equitable right or relief from the consequences of a mistake: at 14. And in Vanvi Ltd v Dawson [1980] 1
NZLR 513 the Court of Appeal adopted a similar approach with the Judges examining the pleading and substance of the claim when reaching their conclusion that s 28(c) was not available.
[80] In my view Associate Judge Christiansen correctly concluded that the commencement of the limitation period was not postponed by virtue of s 28(c).
Were the torts of a continuing nature and, if so, what are the implications?
[81] Ms Grey argued that the torts relied on by the plaintiff are of a continuing nature and that, given that the emissions having varied over time, the limitation period continues to run. Rather than being one event leading to a progression of damage (like Moot), these emissions constitute a series of discrete events of varying AM and FM radio frequency and radiation. Each day the plaintiff suffered new harm in terms of the use and enjoyment of her property. Moreover, the identity of the parties responsible for the emissions changed.
[82] Those contentions were rejected by Mr Jagose. He submitted that before there could be a new cause of action giving rise to a fresh limitation period there would need to be an appreciable distinction between the earlier and later damage. Ongoing harm does not create a new cause of action. With reference to the allegation that the identity of the parties had changed, Mr Jagose pointed to the pleadings which are based on the proposition that the defendants were the successors of earlier companies.
[83] The issue of continuing damage within a limitation context is addressed in
The Law of Torts in New Zealand at 1174:
... where damage must be shown, and continuing conduct causes continuing damage, each fresh continuance gives rise to a fresh cause of action. So also if distinct damage occurs on different occasions, there is a new cause of action each time damage occurs.
Clark & Lindsell on Torts (19th edition, 2006) at 33-07 is to similar effect. It states that where there is a continuing wrong each fresh continuance is a fresh cause of action.
[84] Both those texts refer to Darley v Mitchell (1886) 11 AC 127 (HL) which involved more than one subsidence of land arising from coal mining activities. The House of Lords concluded that each subsidence gave rise to an independent cause of action. A similar approach was applied in Mt Albert Borough Council v Johnson
[1979] 2 NZLR 234 (CA) which involved successive instances of structural damage
to a house built on a defective foundation. On the facts the Court of Appeal concluded that separate and distinct damage had arisen and that the question of continuous damage did not need to be discussed. The Court accepted that it was a question of “fact and degree” whether damage is sufficiently distinct to result in a separate cause of action: at 239 and 243.
[85] The case that is probably the closest to the situation under consideration is the case mentioned by the Associate Judge, Moot v Crown Crystal Glass Ltd, which involved an application under s 4(7) of the Limitation Act to bring a claim for personal injury (hearing disability) beyond the two year period. It was alleged that the injury arose from working in a noisy factory over a number of years. For the purpose of calculating when the two year period under s 4(7) began to run it was necessary for Somers J to determine the date upon which the cause of action accrued in terms of s 4(1).
[86] Having accepted that the critical date for limitation purposes was 9 May 1969 (six years prior to the filing of the application for leave) the Judge noted that Mr Moot could not claim for a breach of duty giving rise to damage before that date. He then added at 273:
Nor could he claim for damage arising after 9 May 1969 but occasioned by an antecedent breach of duty if that damage were no more than a continuation or progression of damage which arose before that date or was merely a deterioration which occurred after that date to an injury which occurred before. In the context of the present case I think Mr Moot has to show some alteration to, some aggravation of, his condition as at 9 May 1969.
After examining English authorities involving continuing damage the Judge commented that if Mr Moot could not show “a new wrong” committed within the period referred to in the Limitation Act and damage arising from that wrong then he could not succeed: at 274.
[87] Then the Judge applied that test to the evidence before him and concluded at
275:
Having regard to the evidence of the effect of the aural trauma a new cause of action arose daily, or at least when damage became more than negligible, between May 1969 and July 1971 when ear muffs were made compulsory.
He decided that the cause of action did not accrue until July 1971, but dismissed the application for leave to extend the two year period because he did not consider that the conditions precedent to the granting of such leave had been made out. For present purposes it is significant that the Judge reached the view that there was a new cause of action each day between 1969 and 1971.
[88] Associate Judge Christiansen applied the test formulated by Somers J in Moot
quoted at [86] above, and I have no difficulty with that. But I do have difficulty with
his conclusion to the effect that he could safely rule out any possibility that new causes of action arose after 11 October 1996. In terms of Murray and Commerce Commission he was only entitled to reach that conclusion if there was no reasonable possibility of a contrary conclusion and the plaintiff’s claim could be properly regarded as frivolous, vexatious or an abuse of process.
[89] In my view it was not possible for the Judge to be so satisfied on the pleadings and evidence before him. This reflects two aspects: the nature of the damage/loss alleged to have been suffered; and the nature of the transmissions underpinning the claim.
[90] Looking first at the nature of the damage/loss, it must be debateable whether the damage/loss alleged to have been suffered by the plaintiff after 11 October 1996 could be accurately categorised as a continuation or progression of the damage arising before that time. In my view the possibility that separate and distinct damage/loss arose after that date cannot be reasonably excluded. That conclusion reflects, first, that this issue involves matters of fact and degree incapable of proper determination without the evidence being tested and, secondly, that in a strike out situation the facts pleaded in the statement of claim should be taken as capable of proof.
[91] The fourth amended statement of claim refers to matters which might arguably be construed as separate and distinct damage/loss arising after 11 October
1996. For example, it is pleaded that the electro sensitivity of horses bred between
1992 and 1998 has affected the performance and value of the next generation. Specific reference is made to progeny that has been affected and, on the pleadings, it
is clearly arguable that these losses only arose after 11 October 1996. To take one example, “One Eye” must have been born around 2006 and it is pleaded that she cannot be raced because of deformity.
[92] Beyond that the statement of claim refers to horses, a dog and cattle that were
on the plaintiff’s farm and suffered problems well after 11 October 1996. In addition, the plaintiff claims for damage to her reputation as a horse trainer and loss
in the value of her farm down to the present time. It must be arguable that to the extent that these losses reflect events after 11 October 1996, they are separate and distinct losses. In this respect it is perhaps significant that the plaintiff did not vacate her property with some animals until “late October 1996” and did not finally remove all of her animals until August 1998.
[93] A similar situation emerges when the nature of the emissions is examined. Again it must be debateable whether they could be properly regarded as a continuous event. On the pleadings various stations with differing frequencies came and went and the power was increased in February 2000. And in her affidavit of August 2008 the plaintiff claims that power was also increased in June 1999 and that a guy wire has been used for transmission since 2004. She claims that this form of transmission
increases power “over my property”. The plaintiff also deposes that she discovered a document in 2002 showing that permission was given in 1997 to transmit from a small antenna which increased the emissions at her boundary “by about 25 microwatts”.
[94] While the affidavit in support of the application for review was not before the
Associate Judge, it consolidates the plaintiff’s allegations on this topic:
16. Over time there have been many changes to the AM and FM emissions from the Ouruhia radio tower. These have included radio stations being added and removed, changes to the maximum transmission power permitted for various radio stations in some or all directions and changes to the focus of the transmission beams. I have recently learned that in addition to the AM and FM radiowave transmissions, various microwave transmitters operated from the respondent’s site and that these have been added to and altered over time. ...
Given this evidence there must, at the very least, be an argument that separate causes
of action have arisen over the many years since 11 October 1996 that the defendants have been transmitting from the mast.
[95] Undoubtedly these matters involve extremely complex issues and I cannot accept they can be properly resolved at this strike out stage on the information currently available. They need to be resolved on the basis of all the evidence led at trial. Any other approach would be unjust to the plaintiff.
[96] The second ground of review has been made out and the application should
be granted.
Outcome
[97] The application for review is granted and the orders of the Associate Judge setting aside the plaintiff’s claim are revoked. The claim is reinstated, with the limitation issue to be determined at trial.
[98] My preliminary view is that the plaintiff should receive costs on a 2B basis from the time that Ms Grey was instructed and that there should be an order for all reasonable disbursements including Ms Grey’s travelling expenses (and
accommodation, if incurred). If either side wishes to challenge that preliminary view they should do so by filing and serving a memorandum not later than by 1 April 2010. In the absence of any such challenge there will be an order for costs in terms of the first sentence.
[99] It will also be necessary for the future timetabling of this claim to be addressed. I suggest that counsel confer on this issue and, if possible, file a joint memorandum by 1 April 2010.
Solicitors: S Grey Lawyer, Nelson for Plaintiff
Chapman Tripp, Wellington for Defendant
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