Barns v Director-General, Department of Transport [1997] QLAC 121 (1996-1997) 16 QLCR 101

IN THE LAND APPEAL COURT BRISBANE Nos. A93-55, A93-56 BETWEEN: AND: JAMES THOMAS BARNS and LYNETTE JOY BARNS DIRECTOR-GENERAL, DEPARTMENT OF TRANSPORT Appellants Respondent REASONS FOR JUDGMENT - FRYBERG J. Delivered the 15th day of August, 1997 I have had the benefit of reading in draft the judgment about to be delivered by the other members of the Court. I agree with the conclusion that on the balance of probabilities, there was a sudden drop in the level of the llama dam in January 1993 which was caused by the respondent's works. I further agree with the finding that this induced the outbreak of blue-green algae, and that the appellants suffered stock losses and other damage as a result of the toxicity caused by that algae. I agree with their assessment of the damage caused by the outbreak and also with the views expressed on other valuation issues. I do so generally for the reasons which they have given, except that I do not find it necessary to rely on the evidence of Mr Rickard in relation to the fall in water level. I will, however, add a little of my own on two aspects of the case: the evidence of certain expert witnesses, and compensation for injurious affection. Evidence The major issue in the appeal was the stock losses. The respondent hotly contested the proposition that these losses were caused by his works. That submission was successful in the Land Court. On the basis of evidence given by Mr Murphy, construction manager for the motorway, regarding the dates when work was carried out in the vicinity of the llama dam, the Court held: "After hearing Mr Murphy's explanation of that activity, it seems highly unlikely to be the cause of any sudden drop in the level in the dam. If any fracturing of the coffee rock strata in the immediate locality of the dam occurred, there is no corresponding construction activity which might have caused such a happening at least until subsequent to the algal bloom." [1997] QLAC 121 -- 1 of 8 -- 2 Mr Murphy's evidence was said to be based on contemporary diaries which he maintained. Before the hearing of the appeal, the appellants successfully applied to lead further evidence on this issue pursuant to s. 44(13) of the Land Act 1962. The evidence which the appellants called was that of two contractors employed by the respondent in carrying out part of the works, and it contradicted the evidence of Mr Murphy. In the preliminary judgment allowing the evidence to be given, the Court said: "At the hearing the male claimant gave evidence that such work was performed, but it must be said that his evidence was lacking in both certainty and specificity. The evidence which he gave in relation to the pond drain was not specifically challenged in cross-examination. However, when a witness for the respondent was called, a Mr Murphy, he gave quite precise evidence in contradiction of Mr Barns evidence and that precise evidence had never been put to Mr Barns, nor had the intention to call it, been signalled in any way which would have put the claimants on notice that a search for further witnesses was required." On the hearing of the appeal, the contractors, Messrs Walsh and Steffens, were vigorously cross-examined. It was sought in cross-examination to establish uncertainty as to the dates when they performed work in the vicinity of the llama dam, particularly the work of clearing the so-called "pond drain", and in particular to establish that the work could not have been done on 21st or 22nd January 1993. (Mr Barns noticed the drop in water level on 22nd or 23rd January 1993.) Both witnesses were, I thought, substantially unshaken by the cross- examination. Mr Murphy also gave evidence on the appeal. In his statement (exhibit 32) he maintained his evidence that Messrs Walsh and Steffens were working on a different part of the site on the days in question, on the basis of his daily diaries. In his evidence in chief, he said that the work of clearing out the pond drain had been done between 16th and 20th January 1993. He said his evidence was based on his recollection and also on the diaries. For the first time he produced these diaries. It emerged that to understand the references in the diaries, one had to refer to other documents. When this was done, it further emerged that Mr Murphy's evidence was incorrect. The pond drain had not been cleared between 16th and 20th January, but between 18th and 27th January. A foreman and two operators were involved in doing it between those dates. The documents did not identify the names of the operators. This turn in the evidence showed two things. First, it showed that the diaries were consistent with the evidence of Messrs Barns, Walsh and Steffens, not inconsistent with that evidence as was previously thought. Second, it showed that Mr Murphy's recollection was unreliable. It is to be regretted that his diaries were not produced to the claimants before the -- 2 of 8 -- 3 hearing in the Land Court. I am satisfied on the evidence that the respondent was performing work in the vicinity of the dam at or about the time when the water fell. From the point of view of the issues in this case, that was an important part of the works being carried out by the respondent around the relevant time, though it was not the only work which might have caused the fall. Mr Litwinowicz gave evidence after Mr Murphy. I agree with the views expressed by the other members of the Court in relation to Mr Litwinowicz as a witness. In particular, I thought his failure both in the Land Court and in his evidence in chief in this court to disclose the existence of what became exhibit 37 reflected an intellectual commitment of such intensity as to cast doubts on his independence and objectivity. This court is frequently dependent upon the assistance which it gains from expert witnesses. It is essential that those witnesses be both independent and objective in their evidence. Witnesses whose expertise involves the scientific method should have no hesitation in disclosing the sources of their information, the totality of their data and any assumptions underlying their opinions. The court has recently had occasion to comment on this matter in relation to valuers1. Those who give evidence in any field of expertise, in the Land Court and in this Court, and those who call expert witnesses in these courts, should remember the words of Cresswell J.: "The duties and responsibilities of expert witnesses in civil cases include the following: 1. Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation: Whitehouse v. Jordan [1981] 1 W.L.R. 246 at 246 at 256, per Lord Wilberforce. 2. An expert witness should provide independent assistance to the court by way of objective, unbiased opinion in relation to matters within his expertise: Polivitte Ltd v. Commercial Union Assurance Co. plc [1987] 1 Lloyd's Rep. 379 at 386, Garland J. and Re J. [1990] F.C.R. 193, Cazalet J. An expert witness in the High Court should never assume the role of an advocate. 3. An expert witness should state the facts or assumptions upon which his opinion is based. He should not omit to consider material facts which 1 G.E. Cominos & Co Pty Ltd v. Chief Executive, Department of Lands, unreported, AV 93-213, 15th August 1996. -- 3 of 8 -- 4 could detract from his concluded opinion (Re J., supra)."2 Injurious affection The appellants claimed compensation not only for the value of the land taken, but also for damage caused by the exercise of statutory powers by the respondent injuriously affecting the balance land. The loss claimed fell into two classes: stock losses and rectification costs. The respondent conceded that in principle, the rectification costs were capable of founding an award of compensation under this heading and it was common ground between the parties that in carrying out the relevant works, the respondent was exercising statutory powers. However the stock losses, it was submitted, were not recoverable even if the appellants proved that they were the reasonably foreseeable consequence of the exercise of statutory powers. This submission did not focus on the question of what was the proper test for remoteness of damage in relation to injurious affection; the respondent conceded that even the stock losses would be reasonably foreseeable consequences of the works for the purposes of an action for negligence3. Rather, the central propositions advanced on behalf of the respondent were that s. 20(1)(b) of the Acquisition of Land Act 1967 was the sole source of any right to compensation; and that section was limited to damage sustained by way of diminution in value of the retained land. I note at this point that the respondent expressly disclaimed any reliance upon the principle said to be embodied in Edwards v. Minister of Transport4. This was a perfectly proper course for him to take, the issue not having been raised in the Land Court. For this reason, it is unnecessary to identify precisely which of the respondent's activities caused the drop in water level. It also follows that this is neither the time nor the place to consider whether Edwards represents the law of Queensland. It has been applied or distinguished in a number of cases in this court5, but as far as I am aware in none has its correctness or applicability in this state been expressly considered. It has always been assumed to have been correctly decided and to be applicable. In particular, in Vanhoff Pty Ltd v. Commissioner of Main Roads6, the appellant 2 The 'Ikarian Reefer' [1993] F.S.R. 563 at p. 565. 3 It seemed to be implicit in the oral submissions for the respondent that the test of remoteness was a mixture of natural and probable consequences and foreseeability; but the point was not developed. 4 [1964] 2 QB 134. 5 National Bank of Australasia Ltd v. Kingaroy Shire Council (1972) 39 QCLLR 1; South East Queensland Electricity Board v. Beaver Dredging Pty Ltd (1985) 10 QLCR 166; The Crown v. Corbould (1986) 11 QLCR 50; Vanhoff Pty Ltd v. Commissioner of Main Roads (1992) 14 QLCR 331; Queensland Railways v. Somerville Funerals Pty Ltd, unreported, A91-55, 3 March 1995. 6 (1992) 14 QLCR 331. -- 4 of 8 -- 5 assumed its correctness and sought to distinguish it. The Court in that case was not invited to depart from Edwards and did not do so, although the judgment raised a number of factors which suggest that it is questionable whether Edwards represents the law. Whether it is open to this Court to reconsider this matter and whether that ought to be done, are questions which can await another day. The first of the respondent's propositions is undoubtedly correct, and authority need not be cited for it. To address the second proposition, one must turn to the terms of the Act: "20(1) In assessing the compensation to be paid, regard shall in every case be had not only to the value of land taken but also to the damage (if any) caused by either or both of the following, namely - (a) the severing of the land taken from other land of the claimant; (b) the exercise of any statutory powers by the constructing authority otherwise injuriously affecting such other land. (2) Compensation shall be assessed according to the value of the estate or interest of the claimant in the land taken on the date when it was taken. (3) In assessing the compensation to be paid, there shall be taken into consideration, by way of set-off or abatement, any enhancement of the value of the interest of the claimant in any land adjoining the land taken or severed therefrom by the carrying out of the works or purpose for which the land is taken. (4) But in no case shall subsection (3) operate so as to require any payment to be made by the claimant in consideration of such enhancement of value." Those words do not in terms limit the damage referred to in sub-s. (1) to damage by way of diminution in value of the retained land. There was some suggestion in the respondent's submissions that such a conclusion was to be implied from sub-s. (2). I do not think that that is correct. Sub-section (2) is concerned with fixing the time when compensation for the value of the land taken must be assessed. Its function is not to limit compensation to the value of the land taken. If it were otherwise, s. 20(1)(a) and (b) would be meaningless. This court so held in Zoeller v. Brisbane City Council: "Section 20 of the Acquisition of Land Act 1967-1969 confines the court to a valuation date in respect to only one of the matters to be considered and that is the value of the estate or interest of the claimant in the land taken which must be assessed as at the date it was taken. This is set out in sub-s.(2) of the section."7 7 (1973) 40 QCLLR 198 at p. 204. -- 5 of 8 -- 6 In that case the court held that enhancement should be assessed according to the best evidence available to the court at the date of the hearing, and as counsel for the respondent here conceded, the same approach is taken with respect to injurious affection. It was not suggested that anything else in the wording of s. 20 pointed to the conclusion contended for. The respondent's contention were it correct, would mean that, ex hypothesi, a person in the position of the appellant would suffer a loss as a result of his land being injuriously affected by the constructing authority's conduct, yet would have no remedy. It is difficult to see why the parliament would have intended such a result. There is a pronounced lack of authority on the question, although perhaps this is not surprising. There are of course plenty of cases where compensation for injurious affection has been awarded on the basis of a diminution in the value of the land. We were referred to only one case where an award of the sort claimed for by the appellants has been made, and I have found none other. That was a decision of the Land Court8. In that case, the Land Court found that the construction of a railway line on resumed land in the vicinity of the claimants' piggery, conducted on the retained land, caused deaths and loss of production among the pigs. It awarded $3,500.00 for injurious affection in addition to amounts for the value of the land taken and severance. It must be said, however, that there was no discussion of whether such a claim could be allowed as a matter of law. On the other hand, there are two fairly weak obiter dicta. First, there is a statement by Hardie J. made in respect of similar legislation in New South Wales: "Under s. 124 of the Public Works Act the plaintiff is entitled to the value of the land taken and, in addition, the damage, if any, caused by the severing of the resumed land from other lands of the plaintiff "or by the exercise of any statutory powers by the Constructing Authority otherwise injuriously affecting such other lands". It is established by the authorities that the right of the dispossessed owner under the final limb of the section is limited to damage, in the sense of diminution in value of the remaining land, resulting from the exercise by the constructing authority of its statutory powers on the land resumed from the plaintiff (see Sisters of Charity of Rockingham v. The King9 and Edwards v. Minister of Transport10."11 8 James v. Commissioner for Railways (1976) 3 QLCR 396. 9 [1922] 2 A.C. 315, at pp. 328-329. 10 [1964] 2 Q.B. 134. 11 Cohen v. Commissioner for Main Roads (1968) 15 LGRA 423 at p. 426. -- 6 of 8 -- 7 The second is contained in a judgment of this Court: "Injurious affection, in the terminology of the Act, is the type of damage to the retained land which flows from the exercise of any statutory powers by the constructing authority otherwise (ie. than by severance) injuriously affecting the retained land. This type of damage is related to uses of, or activities on, the resumed land by the constructing authority as a result of the resumption and the consequent depreciation in the value of the retained land."12 In neither case was the statement made after consideration of the question now before the Court. In my judgment, none of these authorities is of much assistance to us. If neither the wording of the section nor the authorities controls the answer, what of policy and principle? This is a compensation case and it is well to bear in mind Dixon J's. famous dictum, "In [compensation cases] the purpose is to ensure that the person to be compensated is given a full money equivalent of his loss."13 In my view, it is not to the point to say, as the respondent submitted, that if the respondent commits a tort, the landholder will have his remedy elsewhere. No doubt that is true; but s. 20 is designed to provide compensation where the constructing authority acts lawfully. It is of course necessary that there be a nexus between the claimant's land and the actions of the constructing authority. That nexus is provided by the fact that the land is injuriously affected. The introduction of a further requirement that the damage take the form of diminution in value of the retained land selects a criterion which is random in its operation. It is difficult to see any reason of principle why the particular economic manifestation of the damage should make any difference. Perhaps the strongest argument in the respondent's favour is that it is anomalous that a person whose land is resumed should be compensated for the death of his livestock when a person whose land was not resumed would receive no compensation. Upon examination, this anomaly is revealed to be simply an example of the general anomaly which occurs in every case of injurious affection. It has been said in this Court: "The Act makes no provision for owners who do not suffer dispossession of land, no matter how severely their land is depreciated as a result of the uses which a 12 Gold Coast City Council v. Suntown Pty Ltd (1979) 6 QLCR 196 at pp. 207-8. 13 Commissioner of Succession Duties (SA) v. Executor Trustee and Agency Company of SA Ltd (1947) 74 CLR 358 at p. 373. -- 7 of 8 -- 8 resuming authority puts adjoining land acquired by it from other owners. It has long been recognised that a person who suffers dispossession of land is in a much more fortunate position as regards injurious affection flowing from a resumption than a person who suffers no dispossession of property. This set of circumstances was recognised as long ago as 1889 - see the judgments of the Lord Chancellor Halsbury and Lord Justice Watson in the Cowper Essex case."14 To that reference to the speeches of Lord Halsbury and Lord Watson may be added one to the speech of Lord Macnaghten in the same case: "It may be said that an adjoining lessee or owner from whom no land is taken might suffer in the same way, and that he would be without redress. That is true. But I cannot see why a person whose case is within the spirit and within the very letter of the Act should be deprived of the full measure of compensation because his neighbour, who is not within the Act at all, is perhaps hardly dealt with."15 Finally, I should say that I have not overlooked the opinions of the text writers. Some of them are referred to in the judgment of my colleagues. The opinions are regrettably superficial and none is supported by reasoning in any depth. I do not find them of assistance in resolving the problem presently before the Court. Weighing up these matters, there is in my judgment no reason why s. 20 should be given other than its plain meaning. It contains no express restriction of the sort contended for by the respondent, and in my judgment, no sufficient reason has been advanced for us to imply any. It follows, the relevant facts having been proved, that the claim for stock losses should be dealt with in the same way as the claim for rectification. In these circumstances it is unnecessary for me to express a view on whether any part of the appellants' claim could properly be allowed as disturbance, and I would prefer not to do so. I agree in the order proposed by my colleagues. 14 Gold Coast City Council v. Suntown Pty Ltd (1979) 6 QLCR 196 at p. 210. 15 Essex v. Acton Local Board (1889) 14 App. Cas. 153 at p. 177. -- 8 of 8 --