Insights

In brief

The joint appeals of State of Queensland v Baker Superannuation Fund Pty Ltd & Anor and Aurizon Operations Limited v Baker Superannuation Fund Pty Ltd & Anor [2018] QCA 168 concerned appeals to the Queensland Court of Appeal against the decision by the Supreme Court of Queensland to award damages for a nuisance in respect of land located adjacent to a now disused railway line at Sandy Creek (Lot 3).

In the first appeal, being Appeal No. 3654 of 2017, the State of Queensland (State) was the Appellant and Michael Vincent Baker Superannuation Fund Pty Ltd (Baker) and Aurizon Operations Limited were the Respondents.

In the second appeal, being Appeal No. 3650 of 2017, Aurizon Operations Limited (Aurizon) was the Appellant, and Michael Vincent Baker Superannuation Fund Pty Ltd and the State were the Respondents.

The issues before the Court of Appeal were the following:

  1. Whether the payment of compensation to the original landowner in 1884 encompasses "injurious affection" to the land, such as to foreclose any action for damages for a nuisance based on the culverts?
  2. Whether, having paid compensation to the landowner, Aurizon and the State were protected by a statutory immunity under the legislation from time to time? 
  3. Whether the Supreme Court adequately considered the issue of causation?
  4. Whether the laws of negligence were correctly applied by the Supreme Court?
  5. Whether the legislation relevant over the time provided for a statutory immunity?
  6. Whether Baker failed to take adequate steps to mitigate the damage?

The Court of Appeal dismissed Appeal No. 3654 of 2017 because the culverts contributed to the erosion of Baker's land and the State had prior knowledge of the damage caused by the culverts. The Court of Appeal also awarded costs to Baker and Aurizon. 

The Court of Appeal allowed Appeal No. 3650 of 2017 because it held that Aurizon could not be expected to repair the damage to Baker's land. The Court of Appeal ordered that the Supreme Court's order that damages for nuisance be paid by Aurizon be set aside and awarded costs to Aurizon.

Background

This case concerns the Brisbane Valley Railway Line (railway line) and the prevention measures that were built in 1884, next to Lot 3, to combat its impact on the natural flow of surface water, including the installation of two wooden box culverts running through the embankment under the railway line. The wooden box culverts were replaced in 1956 with concrete box culverts. 

The railway line impacts the natural flow of surface water as the embankment channels water into the culverts, which resulted, over long periods of time, in severe erosion to the neighbouring land.

Baker commenced proceedings against the current and previous owners of the railway line seeking damages for nuisance due to the erosion caused to Lot 3 by the box culverts. Baker has owned Lot 3 since 1995.

Both the State and Aurizon commenced an appeal to challenge Baker's successful result in the Queensland Supreme Court (Michael Vincent Baker Superannuation Fund Pty Ltd v Aurizon Operations Limited & Anor [2017] QSC 26).

Payment of compensation to the original landowner was not considered to be compensation for injurious affection and thus did not foreclose action for damages for nuisance

The State had previously paid compensation for the resumption of the original landowner's land under section 46 of the Railway Act 1864 in the sum of £40. Additional compensation in the sum of £3.5.0 was also paid to the original landowner. The Queensland Supreme Court held that the additional compensation was not payment for injurious affection. 

Before the Court of Appeal, the State and Aurizon jointly argued that the additional compensation was for "injurious affection" to the land. Baker argued that the conclusion of the Queensland Supreme Court was correct. 

The Court of Appeal held that the additional compensation of £3.5.0 was to compensate for the resumption under section 46 of the Railway Act 1864 for an additional "one acre and one perch" identified in the summary file note. Furthermore, the Court of Appeal concluded that the legislative intent within the Railway Act 1864 was that the compensation paid under section 46 for the land was not intended to be for injurious affection and, therefore, the total compensation of £43.5.0 did not contain a component for injurious affection. 

Payment of compensation did not result in a statutory immunity, nor was a statutory immunity available under the relevant legislation in force from time to time

Both Aurizon and the State argued that the terms of the legislation that were in force in 1885 (when the wooden box culverts were installed) and 1956 (when the concrete culverts were installed) created a statutory immunity against the recent erosion damage. 

The Court of Appeal reviewed the operation of the relevant legislation in force from time to time and concluded that, whilst the legislation provided immunity in certain circumstances for the maintenance of the railway, the State still had an obligation to conduct maintenance on the culverts. 

Furthermore, the Court of Appeal also found that the legislation that was in force from time to time did not provide, in and of itself, any form of a statutory immunity to Aurizon and the State.

Culverts were considered to be, in part, the cause of the damage under the applicable laws of negligence, which were correctly applied by the Supreme Court

Both Aurizon and the State argued that the Supreme Court did not correctly apply the law and that instead of requiring the Appellant to prove that an actionable nuisance occurred, the Supreme Court focused on when a lawful act becomes actionable. Baker argued that the Supreme Court's findings were correct. 

The Court of Appeal considered the requirements of the High Court's decision in March v Stramare (E & HM) Pty Ltd (1991) 171 CLR 506; [1991] HCA 12 and held that the Supreme Court had adequately addressed the issue of causation by finding that the box culverts contributed to the erosion by concentrating the water flow across Lot 3.

The Court of Appeal also held that the Supreme Court had considered and correctly applied the law of negligence, where applicable, to the relevant circumstances. 

Baker was found to have adequately discharged his duty to undertake mitigating steps, despite not undertaking any physical action to stop the erosion, as no reasonable steps could be taken

All the parties agreed that the sum total of the mitigating steps that Baker undertook was to request that the State and Aurizon remove the culverts and repair the damage. Aurizon and the State argued that additional mitigating steps should have been taken, but did not provide any adequate suggestions as to what those steps would be.

The Court of Appeal determined that the Supreme Court's conclusions on this issue were unimpeachable and held that this ground failed. The Court of Appeal also noted that simply stating that additional mitigating steps should be taken, without providing adequate provable suggestions about those steps, was a sort of "Delphic statement" that was unlikely to satisfy the relevant onus (at [185]).

Conclusions 

The Court of Appeal unanimously agreed that in the relevant circumstances, being the expense in removing the culverts and repairing the land, Aurizon should not be held liable for abating the nuisance, and therefore the claim against them should be dismissed.

His Honour Justice Morrison and His Honour Justice McMurdo were both in agreement that the State was liable for the damage caused by the culverts concentrating water over Lot 3, as the State was aware of the damage and there was no reasonable justification for not abating the nuisance. 

His Honour Justice Jackson was in dissent regarding the liability of the State. His Honour Justice Jackson stated, after reviewing the relevant common law, that the use of the land as a railway was a natural use and, therefore, the State was not liable for failing to abate the nuisance. 

Appeal No. 3654 of 2017 was dismissed as the Court of Appeal found that Aurizon was not liable in nuisance for the damage caused to Lot 3.

Appeal No. 3650 of 2017 was allowed as the Court of Appeal found that the State was liable in nuisance for the damage caused to Lot 3.

This article has been published by Colin Biggers & Paisley for information and education purposes only and is a general summary of the topic(s) presented. This article is not specific legal advice. Please seek your own legal advice for any questions you may have. All information contained in this article is subject to change. Colin Biggers & Paisley cannot be held responsible for any liability whatsoever, or for any loss howsoever arising from any reliance upon the contents of this article.​

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