Ball v Consolidated Rutile Ltd [1990] QSC 66 [1991] 1 Qd R 524

10 20 30 40 so 60 IN THE SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION No. 4083 of 1987 BEFORE MR. JUSTICE AMBROSE BRISBANE, 30 MARCH 1990 BETWEEN: ~nut. Printer, Qld. (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter,Court Reporting Bureau.) ALLAN BALL, EDWARD CHARLES BEDFORD,LESLIE KEITH BENNETT, RONALD JOHN CAMPBELL, RICHARD COLIN FURSEY, RONALD ALFRED HATCHMAN, BARRY JOHN HOARE, BARRY JAMES HOLT, EDNA MAY HOLT, GRAHAM STEPHEN HOLT, L.A. HOLT (Male), PERCY ARTHUR HOLT, WILLIAM JOHN JAMIESON, MARIA KATHERINA JAMIESON, WAYNE HERBERT KLEINSCHMIDT TREVOR LESLIE KLEINSCHMIDT, DAVID LANGFORD-SMITH, E.A. LIEBINGER (Male), BARRY MAXWELL LITHERLAND, CYNTHIA CLARE LITHERLAND, BARRY FRANK MOORE, IAN MORGAN, FREDERICK ANDREW MUNDAY, BARRY O'BRIEN, GRAHAM POWER, LEON CLARANCE RICHARDSON, ALISON DONNA RICHARDSON, DANNY JAMES RIYS, JOHN ALLAN SCARBOROUGH, BARRY JEFFREY TAYLOR, DAVID JAMES THOMSON, ATHENA PALLAS TOLHURST, DARYL TOWN, VICTOR JOHN VENN, JUNE LAVIN[A VENN, EDMOND JOSEPH WALSH, LAURENCE KENNETH WEBB, BARRY WILLIAM WESTBURY,STEPHEN JEFFREY WRAYFORD,and STEPHEN ZEMAN Plaintiffs 10 20 30 40 so 60 -- 1 of 50 -- 10 20 30 40 50 60 -and- CONSOLIDATED RUTILE LTD -and- Q.B.E. INSURANCE LIMITED -and- INSURANCE COMPANY OF NORTH AMERICA (AUSTRALIA) LIMITED -and- C.E. HEATH INSURANCE BROKING (AUSTRALIA) PTY.LTD. JUDGMENT Defendant First Third Party Second Third Party Third Party HIS HONOUR: J;In this matter I have simply answered questions numbered one to five in Exhibits 1 and 2 and I forma:l'ly,,pronounce judgment as follows: I dispose of the points of law raised by the parties to this- application by answering questions numbered 1, 2, 3, 4 and 5 contained in Exhibits 1 and 2 hereof' in the following way: Question 1 - Not with respect to pure economic loss. Question 2 - No. Question 3 - No. Question 4 - (a) with respect to damage to fishing gear to the extent~ of $39,880 - Yes. (b) With respe::t to economic loss to extent of $1,220,000 - No. Question 5 - Not on the facts of this case. It is :;,,, unnecessary to answer the question whether, if pure economic loss were recoverable in this case, the controls applied in negligence would be applied in nuisance. I publish my reasons. I reserve the questions of costs. ;•ler, Qld. 2 10 20 30 40 50 60 -- 2 of 50 -- 6C 'J_d-0 \~ IN THE SUPREME COURT OF QUEENSLAND No. 4083 of 1987 Before Mr. Justice Ambrose BETWEEN: ALLAN BALL, EDWARD CHARLES BEDFORD, LESLIE KEITH BENNETT, RONALD JOHN CAMPBELL, RICHARD COLIN FURSEY, RONALD ALFRED HATCHMAN, BARRY JOHN HOARE, BARRY JAMES HOLT, EDNA MAY HOLT, GRAHAM STEPHEN HOLT, L.A. HOLT (Male), PERCY ARTHUR HOLT, WILLIAM JOHN JAMIESON, MARIA KATHERINA JAMIESON, WAYNE HERBERT KLEINSCHMIDT and TREVOR LESLIE KLEINSCHMIDT, DAVID LANGFORD-SMITH, E.A. LIEBINGER (Male), BARRY MAXWELL LITHERLAND, CYNTHIA CLARE LITHERLAND, BARRY FRANK MOORE, IAN MORGAN, FREDERICK ANDREW MUNDAY, BARRY O'BRIEN, GRAHAM POWER, LEON CLARANCE RICHARDSON and ALISON DONNA RICHARDSON, DANNY JAMES RIYS, JOHN ALLAN SCARBOROUGH, BARRY JEFFREY TAYLOR, DAVID JAMES THOMSON, ATHENA PALLAS TOLHURST, DARYL TOWN, VICTOR JOHN VENN and JUNE LAVINIA VENN, EDMOND JOSEPH WALSH, LAURENCE KENNETH WEBB, BARRY WILLIAM WESTBURY, STEPHEN JEFFREY WRAYFORD, STEPHEN ZEMAN CONSOLIDATED RUTILE LTD. Q.B.E. INSURANCE LIMITED Plaintiffs Defendant First Third Party INSURANCE COMPANY OF NORTH AMERICA (AUSTRALIA) LIMITED Second Third Party C.E. HEATH INSURANCE BROKING (AUSTRALIA) PTY. LTD. REASONS FOR JUDGMENT - AMBROSE J. Delivered the 30th day of March, 1990 Third Party -- 3 of 50 -- Counsel: Solicitors: Hearing dates: 2 Miss S. Kiefel Q.C. with Mr. J. Douglas for Applicant Mr. R. Ches terrnan Q. C. with Mr. S . Couper for Respondent Feez Ruthning for Applicant Murrell Stephenson for Respondent 15th and 16th February, 1990 -- 4 of 50 -- IN THE SUPREME COURT OF QUEENSLAND BETWEEN: No. 4083 of 1987 ALLAN BALL, EDWARD CHARLES BEDFORD, LESLIE KEITH BENNETT, RONALD JOHN CAMPBELL, RICHARD COLIN FORSEY, RONALD ALFRED HATCHMAN, BARRY JOHN HOARE, BARRY JAMES HOLT, EDNA MAY HOLT, GRAHAM STEPHEN HOLT, L.A. HOLT {Male), PERCY ARTHUR HOLT, WILLIAM JOHN JAMIESON, MARIA KATHERINA JAMIESON, WAYNE HERBERT KLEINSCHMIDT and TREVOR LESLIE KLEINSCHMIDT, DAVID LANGFORD-SMITH, E.A. LIEBINGER {Male), BARRY MAXWELL LITHERLAND, CYNTHIA CLARE LITHERLAND, BARRY FRANK MOORE, IAN MORGAN, FREDERICK ANDREW MUNDAY, BARRY O'BRIEN, GRAHAM POWER, LEON CLARANCE RICHARDSON and ALISON DONNA RICHARDSON, DANNY JAMES RIYS, JOHN ALLAN SCARBOROUGH, BARRY JEFFREY TAYLOR, DAVID JAMES THOMSON, ATHENA PALLAS TOLHURST, DARYL TOWN, VICTOR JOHN VENN and JUNE LAVINIA VENN, EDMOND JOSEPH WALSH, LAURENCE KENNETH WEBB, BARRY WILLIAM WESTBURY, STEPHEN JEFFREY WRAYFORD, STEPHEN ZEMAN CONSOLIDATED RUTILE LTD. Q.B.E. INSURANCE LIMITED Plaintiffs Defendant First Third Party INSURANCE COMPANY OF NORTH AMERICA {AUSTRALIA) LIMITED Second Third Party C.E. HEATH INSURANCE BROKING (AUSTRALIA) PTY. LTD. REASONS FOR JUDGMENT - AMBROSE J. Delivered the 30th day of March, 1990 Third Party -- 5 of 50 -- 2 This is an application for disposal of points of law raised upon the pleadings pursuant to R.S.C. 022 rr. 27 and 28. It is conceded that for the purpose of this application I should assume the existence of the facts pleaded and particularized in the plaintiffs' pleadings. I shall state briefly what appear to be those facts: 1. At material times the plaintiffs all carried on business as professional fishermen and conducted at least some of their fishing activities in Moreton Bay in the vicinity of North Stradbroke Island. They held licenses the effect of which to take prawns for a commercial purpose the use of nets operated from their licensed fishing in waters in various parts of Queensland including Bay. It was not lawful for persons who did not have of the sort held by the plaintiffs to take prawns with such nets in those waters. 2. The defendant conducted sand mining operations on the west coast of North Stradbroke Island and in the course of those operations formed a sand dune on the island abutting the waters of Moreton Bay. On about 22nd March, 1982 the sand dune or at least part of it slipped into the waters of Moreton Bay along about 400 metres of its shoreline carrying with it about 570 trees of an average height of five metres together with approximately 114,000 cubic metres of root masses and other types of vegetation. 3. After slippage of the sand dune, tidal currents carried the trees, root masses and vegetation into southern parts of Moreton Bay which included waters in which prawn trawling -- 6 of 50 -- 3 by the plaintiffs was permitted. When the plaintiffs attempted to fish in those waters they suffered damage to their fishing gear due to the trees, roots, vegetation etc. coming into contact with it. All told about $19,880.00 worth of fishing gear was destroyed and other gear was damaged to such an extent that its repair cost $20,000.00. The gear was damaged when it became snagged on the material carried by the slippage of the sand dune into Moreton Bay and also because trawl nets became so filled with vegetation and debris generally and so entangled with such floating material that they could not withstand the weight and failed. Because some of the material on the bed of parts of the bay caused the trawl nets to become snagged and/or fail resulting in unacceptable loss of and damage to fishing gear, it became uneconomical to fish in those parts. 4. As the result of the deposit of material in those prawning grounds in Moreton Bay affected by the slippage the plaintiffs were unable to fish there economically with their trawl nets and lost catches of prawns from them to the extent of:- 40,000 kgs. in the 1981-82 season which was valued at $264,000.00. 80,000 kgs. in the 1982-83 season which was valued at $528,000.00 40,000 kgs. in the 1983-84 season which was valued at $334,000; and -- 7 of 50 -- 4 10,000 kgs. in the 1984-85 season which was valued at $94,000.00. The value of the "catch of prawns foregone" over the four fishing seasons to which I have referred was $1,220,000.00. At all material times the defendant knew or ought to have known that there were professional fishermen who regularly carried on the business of prawn trawling in the grounds to which I have referred and that those fishermen would be likely to be detrimentally affected by slippage of the sand dune. A cause of the slippage of the sand dune was the defendant's acts in - (i) causing or permitting the sand dune to be formed in an area where the defendant knew or ought to have known that it would be affected by fresh water springs and seepage from lakes in the area adjacent to it; (ii) causing or permitting the dune to be formed with a slope angle which was too steep in the circumstances; (iii) causing or permitting the dune to be formed in a position closer to the western shoreline of Moreton Island than that occupied by the natural dune which it replaced, and with its toe extending over tidal flats; On and after 22nd March, 1982 the defendant knew that the slippage had occurred but did nothing at any time to prevent or minimise the detrimental effects which had been caused to the plaintiffs as professional fishermen as a result. In particular the defendant failed to take any reasonable steps to remove the tidal vegetation and other debris from the fishing grounds used by the plaintiffs and failed to take any reasonable steps to -- 8 of 50 -- 5 cover with sand certain of the vegetation, trees, roots, etc. which had sunk to parts of the bottom of Moreton Bay which constituted fishing grounds. As a consequence of the deposit of the trees, roots, vegetation, etc. within the fishing grounds used by the plaintiffs, they had to travel further distances than they would otherwise have had to travel so that they might fish in fishing grounds unaffected by the slippage. It is pleaded that the defendant's acts with respect to the slippage of the sand dune and also with respect to its failure to remove the vegetable material washed into Moreton Bay and carried by tidal currents into fishing grounds used by the plaintiffs were negligent. It is also pleaded that the defendant's acts resulting in the slippage amounted to causing a public nuisance and an unlawful interference with a public right and that the plaintiffs' loss and damage were caused also by the failure of the defendant to abate that nuisance and to terminate that interference. Counsel for the plaintiffs and the defendant were unable to agree precisely on the formulation of the points of law to be determined and at my request each handed a list of "questions" encapsulating the points they sought determined. There seems to be little difference in the substance of the five points formulated by the applicants and the respondent. Each consented to the tendering of the questions formulated by the other and I proceed on the basis that each consented to my determining all points of law raised by those questions. -- 9 of 50 -- 6 The questions are contained in exs. 1 and 2 tendered upon the hearing. Plaintiffs' formulation 1 . 2. 3. Did the defendant owe the plaintiffs: (a) individually; or (b) as members of a class a duty of care regarding the acts complained of? Can the plaintiffs recover by an action in negligence economic loss suffered by them arising out of the damage to the sea bed (not their which property) interfered with their right to take prawns? Was t h e r e an interference with a public right so as to constitute the acts complained of a public nuisance? Defendant's formulation 1 • 2. 3. Did the defendant owe the plaintiffs (each of them) a duty of care regarding the acts complained of? Can the plaintiffs recover economic loss suffered by them arising out of damage to the sea bed (not their property)? Was there an interference with a public right so as to constitute the acts complained of a public nuisance? -- 10 of 50 -- 4. 5. Is the loss alleged in the statement of claim particular damage. Can the plaintiffs recover pure economic loss in nuisance? 7 4.If yes plaintiffs to 3, (each Did the of them} suffer particular damage? 5. Can the plaintiffs recover pure economic loss in nuisance? Are the controls applied in negligence to such loss applicable to claims in nuisance? It is convenient to deal with questions 1 and 2 together before dealing with questions 3, 4 and 5. Questions 1 and 2 Upon the facts as I have outlined them the point of law encapsulated in questions 1 and 2 appears to be this: Upon the facts, did the defendant owe to the plaintiffs a duty when building the sand dune in the course of its mining operations to take reasonable care to build it in such a way and in such a location as to avoid it ever slipping into the sea and causing them economic loss by preventing them from fishing in waters affected by such a slippage. A related point is whether the defendant was under a duty to take reasonable steps to remove or cover with sand the material deposited by the slippage so that the plaintiffs might fish with only those restrictions which would have operated had the slippage not occurred. -- 11 of 50 -- 8 The first point involves a positive act which might foreseeably cause damage to the plaintiff. The second point involves the omission to do an act which would alleviate the damage caused by the positive act resulting in the slippage of the sand dune. In my view upon the facts if the defendant was not in breach of a duty which it owed to the plaintiffs with respect to the slippage of the sand dune into Moreton Bay causing them economic loss it could not be said that it might nevertheless be in breach of duty in omitting to take steps to reduce the economic loss occasioned to the plaintiffs by such slipping. On the other hand if the defendant was in breach of a duty owed to the plaintiffs which caused them economic loss then the damage recoverable would encompass the whole of the damage which would be recoverable for any breach of duty to remove material which interfered with the plaintiffs' fishing grounds. I therefore confine my consideration to whether upon the facts the defendant was under any duty to the plaintiffs to take reasonable steps to so construct the sand dune that it would not slip into Moreton Bay and cause economic loss to them by interfering with the catching of prawns in the southern part of that bay. In spite of the formulation of the questions no point of law has been argued as to whether the defendant was under a duty to the plaintiffs not to cause physical damage to the plaintiffs' fishing gear to the extent of nearly $40,000.00 when the plaintiffs, presumably shortly after the slippage attempted -- 12 of 50 -- 9 to trawl for prawns in the fishing grounds affected by the slippage. Both parties argued the application on the assumption that there was a clear and significant distinction between such "physical damage" and the "economic damage" which resulted from the decision of the plaintiffs to avoid physical damage by travelling further afield to fishing grounds not so affected and to simply refrain from fishing in the affected area for the best part of four fishing seasons until one presumes the effects of the slippage no longer impeded fishing in those grounds. It is not appropriate therefore upon this application for me to express any view as to whether or not upon the facts as I have stated them the defendant was under a duty to take reasonable care when constructing and managing the sand dune not to construct it so that it might slip and cause physical damage to the plaintiffs' fishing gear should they attempt to fish in Moreton Bay with their prawn nets after the slippage or whether there exists sufficient causal connexion between any breach of such a duty and all such physical damage. I confine my attention only to the point of law which seems to be encapsulated in the questions posed and which was argued before me which is whether the defendant was in breach of a duty not to cause economic loss of the sort the plaintiffs suffered. On the facts outlined the economic loss suffered by the plaintiffs as a result of the slippage was foreseeable to the defendant. It is clear however that foreseeability of loss .. alone is not sufficient to make it recoverable by action for negligence. I refer to the observation of Deane J. in -- 13 of 50 -- 10 Sutherland Shire Council v. Heyman (1985) 157 C.L.R. 424 where at p. 495 he observed:- "The common law imposes no general duty to avoid loss or injury to another merely because it is reasonably foreseeable that one's actions or omissions are likely to cause it. Nor under common law is a person liable in damages for loss or injury to another merely because such loss or injury would not have been sustained if he or she had acted with reasonable care to avoid it. Such a duty arises and such liability exists under common law only if there be the requisite element of proximity in the relationship between the parties with respect to a relevant act or omission: the injured party must be 'so closely and directly affected by my act' that the law adjudges that 'I ought reasonably to have him or her in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question': per Lord Atkin Donoghue v. Stevenson". In the same case at p. 497 His Honour continued:- "The requirement of proximity is directed to the relationship between the parties in so far as it is relevant to the allegedly negligent act or omission of the defendant and the loss or injury sustained by the plaintiff. It involves the notion of nearness or closeness and embraces physical proximity ( in the sense of space and time) between the person or property of the plaintiff and the person or property of the defendant, circumstantial proximity such as an overriding~relationship of-employer and employee or of a professional man and his client and what may (perhaps loosely) be referred to as causal proximity in the sense of the closeness or directness of the causal connection or relationship between the particular act or course of conduct and the loss or injury sustained --- The requirement of a relationship of proximity serves as a touch stone and control of the categories of case in which the common law will adjudge that a duty of care is owed. Given · the general circumstances of a case in a new or developing area of the law of negligence the question what (if any) combination or combinations of factors will satisfy the requirement of proximity is a question of law to be resolved by the processes of legal reasoning induction and deduction. On the other hand the identification of the content of that requirement in such an area should not be either ostensibly or actually divorced from motions of what is "fair and reasonable" -- or from the considerations of public policy which underlie and enlighten the existence and content of the requirement." -- 14 of 50 -- 1 1 In the same case Brennan J. at pp. 486-7 pointed out that liability in tort is for damage done and not for damage which is merely foreseeable. His Honour referred to the observation of Viscount Simonds in The Wagonmound No. 1 (1961) A.C. 388 at p. 425 that it is not the act but the consequences upon which tortious liability is founded. Where a tortfeasor's liability is in respect of the specified damage and no other damage His Honour observed at p. 487:- "The question is always. whether the defendant was under a duty to avoid or prevent that damage, but the actual nature of the damage suffered is relevant to the existence and extent of any duty to avoid or prevent it." Sutherland Shire Council v. Heyman was a case where damages for economic loss were claimed against the council allegedly in breach of its duty to a purchaser of a house by reason of its failure to take effective steps to ensure that the foundations of that house had been properly constructed. At p. 501 Deane J. in considering the degree of proximity which was adequate to give rise to a duty of care observed:- "At the outset one must distinguish between physical damage and mere or pure economic loss. In the absence of some contrary express or implied statutory mandate or special common law right there will ordinarily be little difficulty in discerning that a defendant whether public instrumentality or private person was under a duty to take reasonable care to avoid causing ordinary physical injury to the person or property of the plaintiff by the direct impact of its, his or her positive action. In such cases as pointed out previously the reasonable foreseeability of such damage being caused will ordinarily suffice to establish the requisite proximity of relationship and there will also ordinarily be no difficulty in the operation of the rule that a cause of action will arise when the physical damage is sustained. The position is different in cases where -- the alleged loss or damage is pure economic loss." -- 15 of 50 -- 12 At p. 502 His Honour continued:- "The field of liability for pure economic loss is a comparatively new and developing area of the law of negligence. Again the reasonable foreseeability of a real risk of such loss does not of itself suffice to give rise to a prima facie duty to take reasonablecare to avoid it: See e.g. The Dredge 'Willemstad' (1976) 136 C.L.R. at pp. 549FF, 572FF and 590FF. Thatbeing so the circumstances in which the relationship between the parties will be such as to impose a duty of care to avoid pure economic loss are also properly to be seen as special. Indeed in a competitive society the infliction of pure economic loss upon another will commonly be a concomitant of thesuccessful pursuit of personal advantage by way of lawful conduct in that there can be discerned in many commercial and financial transactions a co-relation between the attainment of personal gain for oneself and the sustainment of economic loss by another." I refer also to what was said in Jaensch v. Coffey (1984) 155 C.L.R. 549 at p. 553-5 per Gibbs J., and at pp. 579, 585-586 per Deane J. and in San Sebastian Pty. Ltd. v. The Minister (1986) 162 C.L.R. 341 at p. 355. The observations in Heyman and other cases since The Dredge 'Willemstad' in 1976 on the "control" of proximity in negligence reflect and expand upon those of Holdsworth in his consideration of the development of the law of negligence in Vol. 8 of A History of English Law 2nd Ed. (1937) at pp. 450, 451. Perhaps of all the authorities dealing with proximity required to create a duty of care to avoid economic loss, the facts in The Dredge 'Willemstad' (1976) 136 C.L.R. 529 most closely resemble those in the present case; however upon analysis there are significant differences between them. In that case the plaintiff suffered economic loss occasioned by the necessity to incur additional costs in transporting oil to its terminal by reason of the defendant -- 16 of 50 -- 13 carelessly damaging a pipeline resting on a harbour bottom and running from a refinery on one side of the harbour to the plaintiffs' terminal on the other side. owned by the plaintiff. The pipeline was not In that case Stephen J. at p. 573-4 observed:- "But if economic loss is to be compensated its inherent capacity to manifest itself at several removes from the direct detriment inflicted by the defendant's carelessness makes reasonable foreseeability an inadequate control mechanism -- to take an instance used in argument if by negligent navigation a bridge is destroyed can it be the policy of the law that every member of the public who is a regular user of the bridge and who in consequence incurs increased transport costs because now obliged to travel by a more circuitous route is to be entitled to recover his resultant economic loss, a loss which will perhaps continue until at some distant future date the bridge is restored? I would think not; yet it is by no means clear to me that an application of the criterion of reasonable foreseeability might not produce that very result." His Honour then at pp. 576-577 concluded that on the facts of that case there existed sufficient proximity to entitle the plaintiff to recover its reasonably foreseeable economic loss. The relevant facts His Honour classified as follows:- ( 1) The defendant's knowledge that damage to the refinery pipeline was likely to produce consequential economic loss to those who relied upon its use. The plaintiff in that case had "a very real interest in" the continued operation of the pipeline even though it did not possess a proprietary or possessory interest in it. (2) The defendant's knowledge that the damaged pipeline extended to the plaintiff's terminal led to the obvious inference that the plaintiff was a user of the pipeline.·· -- 17 of 50 -- 14 His Honour concluded that these two factors led to the conclusion that the plaintiff was within the reasonable contemplation of the defendants as a person likely to suffer economic loss if the pipeline was cut. His Honour concluded that another relevant factor was the nature of the damage suffered by the plaintiff which reflected directly the plaintiff's loss of use of that pipe. It did not represent a loss of profits arising because collateral commercial arrangements were adversely affected but on the contrary involved the expense directly incurred in employing alternate modes of transport of oil from the refinery to the plaintiff's terminal. His Honour concluded those factors demonstrated a close degree of proximity between the defendant's conduct in damaging the pipeline owned by the refinery and the economic loss which the plaintiff suffered when its chosen means of supplying its terminal with products from the refinery was interrupted by damage to the pipeline. His Honour summarized the matters he thought relevant to proximity at p. 577:- "The acknowledgement that a duty of care was owed to A.O.R.; the fact that' Caltex was not less proximately concerned than was A.O.R. in the continued integrity of the pipeline; the very nature of the pipeline a major mode of conveyance of products to an identifiable recipient whose use of its terminal was for the receipt of such products; the nature of the economic loss direct and inevitably flowing from the severing of the pipeline and not in any sense a matter for speculation only; all these characteristics of the present case combine to constitute a relationship of sufficient proximity to give rise to a duty of care owed to Caltex for breach of which it may recover its purely economic loss." Mason J. at p. 593 of the same case said:- "A defendant will then be liable for economic damage due to his negligent conduct when he can reasonably foresee that a specific individual as distinct from a -- 18 of 50 -- 15 general class of persons will suffer financial loss as a consequence of his conduct. This approach eliminates or diminishes the prospect that there will come into existence liability to an indeterminate class of persons; it ensures that liability is confined to those individuals whose financial loss falls within the area of foreseeability and it accords with the decision in Rivtow (1973) 40 D.L.R. 3d (530)." At p. 555 of that report Gibbs J. observed:- " In my opinion it is still right to say that as a general rule damages are not recoverable for economic loss which is not consequential upon injury to the plaintiff's personal property. The fact that the loss was foreseeable is not enough to make it recoverable. However there are exceptional cases in which the defendant has knowledge or means of knowledge that the plaintiff individually and not merely as a member of an unascertained class will be likely to suffer economic loss as a consequence of his negligence and owes the plaintiff a duty to take care not to cause him such damage by his negligent act. It is not necessary and would not be wise to attempt to formulate a principle that would cover all cases in which such a duty is owed -- 11 At p. 556 His Honour came to the conclusion that the persons responsible for the damage to the pipeline should have had the plaintiff in contemplation as a person who would probably suffer economic loss if the pipe was damaged. His Honour came to the conclusion that in the circumstances there was a particular relationship between the plaintiff and the defendant which placed the defendant under a duty to take reasonable care to avoid damaging the pipeline because that would cause the plaintiff economic loss. Upon the facts in The Dredge 'Willemstad' it is clear that the defendant was or ought to have been aware that Caltex was, if not the only user of the pipeline, at least one of a very limited class of user who would suffer economic loss if its use of that the pipeline for the purpose of transporting oil to its -- 19 of 50 -- 16 terminal was interfered with. As Gibbs J. observed the defendant knew that the plaintiff "individually and not merely as a member of an unascertained class" would be likely to suffer loss if the pipe were damaged. Similarly Stephen J. in considering whether a sufficient degree of proximity existed between the defendant's unreasonable conduct and the economic loss suffered by the defendant's knowledge plaintiff that damage regarded to the as important the pipe would cause economic loss "to those who rely directly upon its use" and its knowledge that the plaintiff was one of the persons who did rely directly upon its use. On the facts of the present case the defendant knew that an unspecified number of professional fisherman fished in parts of Moreton Bay that would be adversely affected by slippage of the sand dune into it. Reference to the legislation indicates that only members of the public who held licences of the sort specified could lawfully catch prawns for commercial purposes with trawling nets in that part of Moreton Bay. How many professional fishermen held such licences does not emerge from the pleadings. There is nothing to suggest that the number of professional fishermen holding licences which permit them to use trawl nets to catch prawns in the area of Moreton Bay affected by the slippage is limited or ascertainable by reference to the area of Moreton Bay adverseli affected by the slippage. What does emerge from the facts and from consideration of the relevant legislation is that any members of the public who wish to fish for prawns with nets anywhere in Moreton Bay or anywhere in Queensland for that matter must have a licensed boat and a -- 20 of 50 -- 17 licence to use nets of the sort which the plaintiffs were entitled to use. There appear to be 39 plaintiffs in this action al though it is not clear how many licensed fishing vessels they used between them. There is nothing before me to indicate how many persons or fishing vessels with licences similar to those of the plaintiffs and their vessels, in fact operated at the relevant time in the areas of Moreton Bay affected by the slippage of the sand dune or in other Queensland waters. The facts do not establish that the defendant knew any of the plaintiffs individually or as members of a readily identifiable or ascertainable class of fishermen. What they establish is that the defendant knew that some professional fishermen fished in the area and might be affected and suffer financial loss as a result of interference with their fishing operations if the sand dune slipped into the bay. I keep in mind references in the judgments to problems that might arise should a pylon of a bridge or an electric power line be damaged by the absence of reasonable care on the part of somebody causing economic loss to perhaps thousands of persons using the bridge or relying upon the supply of electricity. As I read the observations made in the judgments on these hypothetical cases it could not be said that in those situations all persons whose transport arrangements were adversely affected or all persons whose use of electricity was interfered with would be members of an "ascertained" class merely because appropriate inquiries might establish the identity of all or -- 21 of 50 -- 18 nearly all people who used the bridge or all or nearly all people who made use of the electricity supply. On the facts of the present case it seems that many professional fishermen who would but for the effects of the slippage have successfully fished for prawns in the four fishing seasons to which I have referred may have suffered economic loss of various kinds and to varying degrees if unable so to fish as a consequence of that slippage. For all the facts disclose there may have been hundreds of professional fishermen apart from the plaintiffs who would, depending upon the number of prawns that might be taken, have fished successfully in the area spoilt by the slippage in that four year period had that slippage not occurred. Assuming that all the plaintiffs had from time to time been observed by officers of the defendant to be fishing in and about that part of Moreton Bay affected by the slippage, could such observation be sufficient to constitute them members of "an ascertained class" known individually and distinct from all those professional fishermen in Queensland who holding ·the appropriate licenses mig_ht lawfully have fished in the relevant seasons for prawns in the southern part of Moreton Bay? To so hold in my view would be to go a long way beyond what was decided in The 'Willemstad'. The doctrine of proximity of course has been elucidated and developed since The Dredge 'Willemstad' was decided in 1976. Indeed the most recent consideration of proximity to which my attention was drawn was the decision of the Full Court of Queensland in Suosaari v. Steinhardt (1989) 2 Qd. R. 477. The question in that case -- 22 of 50 -- 19 involved whether there was sufficient proximity between a manufacturer of farm equipment and the user of it who was injured by reason of a defect in its design. However, that was not a case involving economic loss and consideration of the "class" constituted by users of the machinery who might be physically injured is not really of much assistance in determining the nature of a "class" defined only by knowledge of the sort of person who foreseeably will be damaged economically by a failure to exercise reasonable care. In The Dredge 'Willemstad' the defendant damaged a pipe owned by a refinery and used by Caltex. It was that damage that caused Caltex the economic loss involved in arranging alternate transport facilities for oil from the refinery to its terminal. In this case even accepting that the sea bed of Moreton Bay is "owned" by the Crown it is hardly "used" by fishermen who trawl prawning nets above or even upon its surface in the sense that Caltex used the oil pipeline owned by the refinery. Even if it can be said that fishermen "use" the sea bed and the water above it as they fish for prawns, it does not seem to me that the depositing of trees, roots, vegetation etc. in the waters and upon the sea bed can be said to "damage" either the waters or the sea bed. All that can be said is that such deposition interferes with the catching of prawns by net in the areas affected by the deposited materials. There is no suggestion that prawns were adversely affected as the result of the slippage, indeed the slippage may prove beneficial to sea life over the long term: however it is unnecessary to speculate on such matters. Suffice it to say that in my view it is not open -- 23 of 50 -- 20 on the facts to conclude that the waters and sea bed of Moreton Bay were "damaged" by the slippage. There is nothing to suggest that the slippage in any way impeded the navigation of the bay by the plaintiffs or by any other persons who wished to travel by boat in any part of the bay affected by the slippage. It is impossible in my view to put into the same category the impairment of the ability of Caltex to convey oil to its terminal by the damage done to the pipeline it used for this purpose and the impairment of the ability of the plaintiffs to trawl for prawns by the deposit of materials in Moreton Bay which prevented them economically from so trawling. In Tate & Lyle v. G.L.C. (1983) 2 A.C. 509, a case where jetty owners sued, inter alia, in negligence for damage suffered when siltation deprived them of access to jetties they operated under license~ it was held that licences to erect and keep in good repair jetties in the River Thames did not confer on the licence holders any rights to the maintenance of any part~cular depth of water hear or leading to the jetties. Lord Templeton at p. 536 B-C said:- "I consider that Tate & Lyle cannot maintain an action in negligence because they did not possess any private rights which enabled them to insist upon any particular depth of water in connection with the operation of their licensed jetties." In my view the plaintiffs' right to use trawl nets to catch prawns in that part of Moreton Bay affected by the slippage cannot be put in the same category as the right of Caltex to use the A.O.R. pipeline to convey oil to its terminal and does not suffice to establish the requisite proximity. -- 24 of 50 -- 21 I have come to the conclusion that it cannot be said that even if the defendant had on occasions seen each of the plaintiffs fishing in the. area affected by the slippage it knew of them "individually" or as members of an 'ascertained class' sufficient to establish the requisite proximity between the defendant and the plaintiffs to impose upon the defendant a duty to avoid economic loss to the plaintiffs by taking reasonable care in the construction and management of the sand dune to avoid its slippage into Moreton Bay. In my view the first two questions as formulated and argued by the plaintiffs and the defendant must be answered "No. 11 Turning to Questions 3, 4 and 5 the points of law for determination here are whether the slippage of the sand dune into Moreton Bay as the consequence of acts or omissions on the part of the defendant amounted to a public nuisance and if it did whether the plaintiffs may recover their economic loss resulting from their inability to fish for prawns for four seasons as particular damage. It seems to me that Question 4 relates not merely to the economic loss suffered by the plaintiffs but also to the destruction of and damage to fishing gear to the extent of nearly $40,000.00. In A.G. v. P.Y.A. Quarries Ltd. (1957) 2 Q.B. 169 at p. 191 Denning L.J. defined public nuisance in the following terms:- "A public nuisance is a nuisance so widespread in its range or so indiscriminate in its effect that it would not be reasonable to expect one person to take proceedings on his own responsibility to put a stop to it but that it should be taken on the responsibility of the community at large." -- 25 of 50 -- 22 For interesting historical analyses of the development of the law relating to public nuisance I refer to The Boundaries of Nuisance by F.H. Newark 65 L.Q.R. (1949) 480 and to Public Nuisance A Critical Examination by J.R. Spencer 1989 Cambridge Law Journal 55. I refer also to Halsbury 4th Ed. Vol. 34 at p. 102 where it is stated:- " A public nuisance is one which inflicts damage, injury or inconvenience on all the Queen's subjects or on all members of a class who come within the sphere or neighbourhood of its operation. However, it may affect some to a greater extent than others. The question whether the number of persons affected is sufficient to constitute a class is one of fact. There are many statutory provisions which impose penalties for nuisances affecting public health, morals and comfort. However, the common law liability remains, and any person who by any act unwarranted by law or by any omission to carry out a legal dutyendangers the life, health, property, morals or comfort of the public commits an offence known as public nuisance." It is clear that to be indictable under s. 230 of The Criminal Code (Queensland) an act or omission with respect to property under a person's control must:- (a) cause danger to the lives, safety and health of the public; or (b) cause danger to the property or comfort of the public or obstruct the public in the exercise or enjoyment of a right common to all members of the public and thereby cause personal injury to some person. In McKell v. Rider (1908) 5 C.L.R. 480 at p. 485 Griffith C.J. expressed the view that at common law a public nuisance was "an indictable nuisance". -- 26 of 50 -- 23 I was referred to no statutory enactment making the acts or omissions of the defendant, which had the effect of preventing prawn trawling with nets an offence whether indictable or otherwise. application. Section 2 3 0 of The Criminal Code clearly has no For the plaintiffs to have a right to sue in public nuisance they must show that (1) The defendant was responsible for the slippage of the sand dune into Moreton Bay; ( 2) That that slippage interfered with the public right to catch prawns in that part of Moreton Bay so effected; (3) That that interference constituted a public nuisance; and (4) That the plaintiffs suffered some special damage peculiar to themselves by reason of the interference with that public right. I refer to Boyce (1903) 1 Ch. 109 per Buckley J. at p. 114. My research has revealed only two cases where an act although not impeding access to fishing grounds in public waters, made it more difficult to catch fish in those grounds and for this reason was assumed or held to constitute a public nuisance. In Fillion v. New Brunswick International Paper Co. (1934) 3 D.L.R. 22, the Appeals Division of The New Brunswick Supreme Court held that the pollution of sea water near the plaintiff's fishing grounds with wood particles which had the result of his nets being fouled and damaged by masses of ice resulting from that pollution and of inhibiting the freezing of river water thus ,• delaying his setting of nets with consequent financial loss of income, if it did constitute a public nuisance did not cause the -- 27 of 50 -- 24 plaintiff a sufficiently special or particular damage to allow him to recover damages in public nuisance. Baxter J. in delivering the judgment of the Court said at p. 26:- "Assuming then that the defendant's act constituted a public nuisance and if it is wrongful I do not see how it can be anything else, the plaintiff has suffered differently from the rest of the public only in degree. nearly all of the cases in which this principle has been invoked concern the obstruction of a highway --- Lord Haldane in A-G B.C. v. A-G Can. 15 D.L.R. at p. 315 assimilates the right of public fishing to that of navigation or "the right to use a navigable river as a highway." In McRae v. British Norwegian Whaling Co. Ltd. (1927-31) Nfld. L.R. 274. there was pollution of sea waters from waste materials discharged by a whaling factory which greatly hampered local fishermen. Kent J. at p. 282 observed:- "It is an established principle that the right to fish in the sea and public navigable waters is free and open to all. It is a public right that may be exercised by any of the King's subjects and for any interference with it the usual remedies to vindicate a public right must be employed." His Honour then ref erred to Benjamin v. Storr ( 187 4) 43 L.J.C.P. 162 (a highway case) at p. 166 per Brett J. and treating the pollution of the sea as a public nuisance went on to hold that the plaintiff's damage was not sufficiently particular to permit recovery of damages by the plaintiff in public nuisance. In Hickey et al v. Electric Reduction Co. of Canada Ltd. (1970) 21 D.L.R. (3d) the defendant discharged poisonous substances into the waters of a bay causing the death of fish life in it. The plaintiffs were fishermen whose livelihood was impaired by the destruction of those fish. It was held that the pollution of the bay waters amounted to a public nuisance. -- 28 of 50 -- 25 Furlong C.J. referred to McRae (supra) and Fillion (supra) to support this conclusion. His Honour however came to the conclusion that the damage suffered by those fishermen was not sufficiently special or particular to them to permit them to sue for the loss which they had suffered. At p. 371-2 His Honour said:- "Counsel for the plaintiffs --- argued that when a public nuisance has been created anyone who suffers special damage, that is, direct damage has a right of action. I am unable to agree to this rather wide application of Salmond's view that a public nuisance may become a tortious act. I think the right view is that any person who suffers peculiar damage has a right of action but where the damage is common to all persons of the same class then a personal right of action is not maintainable. Mr. Wells suggests that the plaintiffs' right to outfit for the fishery and their right to fish is a particular right and this right having been interfered with they have a cause of action. This right which they enjoy is a right in common with all Her Majesty's subjects an interference with which is the whole test of the public nuisance; a right which can only be vindicated by the appropriate means which is an action by the Attorney- General either with or without a relater in the common interest of the public." While Hickey et al v. Electrical Reduction Co. of Canada Ltd. is authority for the proposition that the discharge of poisonous materials into a bay containing fish from time to time caught by professional fisherman for human consumption constitutes a public nuisance if it causes the death of those fish, it is not in my view authority for the proposition that the causing of trees, roots and vegetation to fall into a bay making it uneconomic to use nets to catch prawns constitutes that event a public nuisance. As I have already indicated there is nothing to suggest that the deposition of that material in Moreton Bay in this case wouid have been in any way harmful to -- 29 of 50 -- 26 marine life. It must be kept in mind that in times of flood trees, roots, vegetation, etc. are frequently carried from rivers and waterways into bays. With the exception of Fillion (supra) and McRae (supra) I have discovered no authority supporting the proposition that deposition of such material by man in a bay in such a way that it does not adversely interfere with marine life and is not demonstrated to impede the navigation of the bay by boats amounts to a public nuisance. For the plaintiffs it is contended that the right to fish in those parts of Moreton Bay affected by the slippage of the sand dune is a public right which the defendant by causing or permitting the slippage unlawfully interfered with, and that that interference amounts to a public nuisance. In support of these contentions the plaintiffs rely upon observations made in Attorney-General for British Columbia v. Attorney-General for Canada ( 191 4) A. C. 153. At pp. 168-169 Viscount Haldane L.C. refers to a passage in the De Jure Maris of Lord Hale to the effect that:- "--- yet the common people of England have regularly a liberty of fishing in the sea or creeks or arms thereof as a public common of piscary and may not without injury to their right be restrained of it unless in such places, creeks or navigable rivers where either the King or some particular subject hath gained a propriety exclusive of that common liberty." He continues at p. 169:- "But Their Lordships are in entire agreement with him on his main proposition namely that the subjects of the Crown are entitled as of right not only to navigate but to fish in the high seas and tidal waters alike. The legal character of this right is not easy to define. It is probably a right enjoyed so far as the high s.eas are concerned by common practice from time immemorial and it was probably in very early times extended by the subject without challenge to the foreshore and tidal waters which were continuous with -- 30 of 50 -- 27 the ocean if indeed it did not in fact first take rise in them. The right into which this practice has crystallised resembles in some respects the right to navigate the seas or the right to use a navigable river as a highway and its origin is not more obscure than that of these rights of navigation. Finding its subjects exercising this right as from immemorial antiquity the Crown as parens patriae no doubtregarded itself bound to protect the subject in exercising it and the origin and extent of the right as legally cognisable are probably attributable tothat protection, a protection which gradually came to be recognised as establishing a legal right enforceable in the courts." At p. 170 His Lordship continues:- " it has been unquestioned law that since Magna Carta no new exclusive fishery could be created by royal grant in tidal waters and that no public right of fishing in such waters then existing can be taken away without competent legislation." It is contended for the plaintiffs that the observations to the effect that the right of fishing in the sea "resembles in some respects" the right to navigate the seas or the right to use a navigable river as a highway supports this proposition: because an interference with the right to use a navigable river as a highway may constitute a public nuisance therefore an interference with the right of fishing in the sea may constitute a public nuisance also. This appears to have been the approach taken in Fillion's Case (supra) also. It is contended that Hickey et al v. Electrical Reduction Co. of Canada Ltd. itself and the two authorities which Furlong C.J. relied upon in that case - McRae's Case and Fillion's Case are all cases where the Canadian courts at least have so applied Attorney-General for British Columbia v. Attorney-General for Canada. -- 31 of 50 -- 28 I pause only to remark that in each of those three Canadian cases it was held that the damage suffered by professional fisherman as a result of the destruction of sea life or the interference with fishing by pollution of the waters was not sufficiently particular to permit them to recover damages for economic loss which they suffered as a result. It is convenient when considering those cases however to analyse the issues before the Privy Council in 1913 when the observations in that case to which I have referred were made. In 1871 British Columbia was admitted into the Union of Provinces constituted by the British North America Act. Under the arrangement the Dominion of Canada assumed the protection and encouragement of fisheries. It also assumed the obligation to complete within 10 years a railway from the Pacific Coast of British Columbia to a point east of the Rocky Mountains linking up with the railway system of Canada. The government of British Columbia became bound to convey to the dominion government a strip of land not to exceed 20 miles in extent on either side of the railway line to be constructed for the full length of the line. An effect of the grant of the railway belt of land was in substance an assignment of the rights of the province to appropriate territorial or provincial revenues arising from that land. At p. 166 Lord Haldane said:- "Their Lordships can see nothing in the judgment above referred to which casts the slightest doubt upon the conclusion to which they have come from a direct consideration of the terms of the grant itself namely that the entire beneficial interest in everything that was transferred passed from the Province to the Dominion --- and this must include the beds of the -- 32 of 50 -- 29 rivers and lakes which lie within the belt." His Lordship then . referred to an earlier decision in Barrard Power Co. v. Rex (1911) A.C. 87 in these terms:- "The grounds of the decision of the Board in that case were that the grant of the lands to the Dominion had passed the water rights incidental to the lands and that these lands so long as unsettled were public property within the meaning of s. 91 of the British North America Act and were therefore under the exclusive legislative authority of the Dominion and could not be dealt with under a Water Clauses Act passed by the Provincial government." At p. 167 His Lordship observed:- "In the present case therefore Their Lordships entertain no doubt that the title to the solum and the water rights in the Fraser and other rivers and the lakes so far as within the belt are at present held by the Crown in right of the Dominion and that this title extends to the exclusive management of the land and to the appropriation of its territorial revenues. It remains to consider the consequences as regards fishing rights. These are in Their Lordship's opinion the same as in the ordinary case of ownership of a lake or riverbed." At p. 168 after considering rights of fishing etc. in non tidal water His Lordship continued:- "but in the case of tidal foreshore or in estuaries exclusive character of the another and paramount title the public." waters ( whether on the or tidal rivers) the title is qualified bywhich is prima facie in His Lordship then referred to what Lord Hale had said in De Jure Maris. After dealing with fishing rights within the railway belt in tidal and non tidal waters at p. 171 His Lordship observed:- "But we now come to the crux of the present case. The restriction above referred to relates only to royal grants and what Their Lord~hips here have to decide is whether the Provincial Legislature has the power to alter these public rights in the same way as a sovereign legislature such as that of the United Kingdom could alter the law in these respects within -- 33 of 50 -- 30 its territory." At p. 172 reference was made to other advice given by the Board as to the limits of the powers of provincial legislatures in North America in the following terms:- "It was held that it does not confer on the Dominion any rights of property but it does confer an exclusive right on the Dominion to make restrictions or limitations by which public rights of fishing are controlled and on this exclusive right provincial legislation cannot trench." His Lordship continued:- "Neither in 1867 or at the date when British Columbia became a member of the Federation was fishing in tidal waters a matter of property. It was a right open equally to all the public and therefore when bys. 91 sea coast and inland fisheries were placed under the exclusive legislative authority of the Dominion Parliament, there was in the case of the fishing in tidal waters nothing left within the domain of the Provincial Legislature. The right being a public one all that could be done was to regulate its exercise and the exclusive power of regulation was placed in the Dominion Parliament. Taking this in connection with the similar provision with respect to 'navigation and shipping' Their Lordships have no doubt that the object and the effect of these legislative provisions that place the management and protection of the cognate public rights of navigation and fishing in the sea and tidal waters exclusively in the Dominion Parliament and to leave to the Province no right of property or control in them. It was most natural that this should be done seeing that these rights are the rights of the public in general and in no way special to the inhabitants of the province." The Board then went on to answer the question posed for its consideration and said that it was not competent for the Provincial Legislature to authorise the government of the Province to grant the exclusive right to fish in the waters in any part of the railway belt where such waters were tidal or though not tidal were navigable. -- 34 of 50 -- 31 In essence the Board held that so far as waters were tidal within the railway belt the right to fish in them was a public right and was subject only to regulation by the Dominion Parliament. It was held also that in so far as the right of fishing in the sea was concerned that right was of the public in general and that the Dominion had the exclusive right of legislating with regard to it. At p. 174 His Lordship observed:- "But Their Lordships feel themselves relieved from expressing any opinion on the question whether the Crown has a right of property in the bed of the sea below low water mark to what is known as the three mile limit because they are of opinion that the right of the public to fish in the sea has been well established in English law for many centuries and does not depend on the assertion or maintenance of any title in the Crown to the subjacent land." At p. 175 the judgment continued:- "--- the principles above enunciated should suffice to answer the third question which relates to the right of fishing in arms of the sea and the estuaries of rivers. The right to fish is in Their Lordship 1 s opinion a public right of the same character as that enjoyed by the public in the open seas. A right of this kind is not an incident of property and is not confined to the subjects of the Crown who are under the jurisdiction of the province. Interference with it whether in the form of direct regulation or by the grant of exclusive or partially exclusive rights to individuals or classes of individuals cannot be within the power of the Province which is excluded from the general legislation with regard to sea coast and island fisheries." In my view the observations in the judgment of the Board which I have set out at some length must be considered in the context of the matters of law that were debated before it. The issue in that case did not involve the question of any infringement of a public right much less whether any such infringement constituted a public nuisance. The question -- 35 of 50 -- 32 considered was whether it was within the legislative competence of the Provincial Legislature to regulate fishing in waters within the legislative competence of the Dominion Legislature. It was within this context that the Board addressed the nature of the public rights to fish in waters under the legislative control of the Dominion. It is true that reference to fishing rights as "public rights" perhaps having their origin in recorded legal history in "a public common of Piscary" which resemble "in some respects the right to navigate the seas or the right to use the navigable river as a highway" are contained in the judgment. However I can find nothing either in the context in which those observations are made or connected with the ratio of the decision to suggest that because the right of the public to use a navigable river as a highway and the right to fish in that tidal water have similarly obscure origins in history it follows that because on the cases an interference with the use of a navigable river as a highway has been held in appropriate circumstances to constitute a public nuisance for that reason alone an interference with fishing in the sea should by analogy be held to constitute a public nuisance. There are three Canadian cases decided in 1929, 1934 and 1970 where interference with the catching of fish in the sea by the discharge of effluents into tidal waters has been held or assumed to amount to a public nuisance and it seems that the basis for so holding or assuming were the observations of the Board in Attorney General for British Columbia v. Attorney General for Canada to some of which I have referred. -- 36 of 50 -- 33 In Chitty's Criminal Law 2nd Ed. (1826) Vol. 3 in Chap. 13 there are set forth various forms of indictment "For Offences Against Public Police and Economy" included in which at p. 607 are "Indictments &c .For Nuisances to Highways by Actual Obstruction" and at p. 632, "Indictments &c For Nuisances to Water Courses &c By Actual Obstruction". Indictment No. 641 at p. 640 is for a nuisance and obstruction on the River Thames by keeping a vessel sunk there. The essence of all the indictments it seems to me is the hindering of the passage of the public upon the highways or river. The forms of "Indictments &c For Nuisances Near to Highways" at pp. 641-655 seem in essence to assert an interference the convenient use of the highway by members of the public by reason of the production of noise, smells etc. near it. At pp. 656-667 other forms of indictment for "nuisances generally" are recorded. Nowhere in Chitty is there a suggestion that an interference with the ability of members of the public to catch fish in tidal waters was then considered an indictable nuisance. To my mind a consideration of the development of the law relating to public nuisance and in particular the analyses of its historical development by F.H. Newark in 1949 and by J.R. Spencer in 1989 to which I have referred and of the various texts dealing with public nuisance including Chitty's Criminal Law 2nd Ed. (1826), Clerk and Lindsell (15th Ed.) and Halsbury 4th Ed. Vol. 34 leads to the conclusion that no reported authority apart from the Canadian cases to which I have referred provides support for the proposition that interference with the catching of fish in the sea amounts to a public nuisance. As I -- 37 of 50 -- 34 have indicated I have reservations as to whether the description of the "public right" to catch fish in the sea as one which "resembles in some respects the right to navigate the seas or the right to use a navigable river as a highway" leads logically or even persuasively to the conclusion that just as an interference with the use of a navigable river as a highway has for historical reasons been held to constitute a public nuisance therefore or even by analogy an interference with the catching of fish in the sea by making it more difficult to do so also constitutes a public nuisance. I am observations unpersuaded that considered in context the of Lord Haldane in Attorney-General for British Columbia v. Attorney-General of Canada (supra) ought be treated as "assimilating" the public right of fishing in the sea with the public right to use a navigable river as a highway for the purpose of defining an interference with each right as a public nuisance. Both "rights" may be categorised as liberties or privileges in the Hohfeldian sense. Interference with some liberties and privileges have in the course of development of the common law been categorised as public nuisances but in the absence of binding precedent I am unpersuaded that interference with all liberties and privileges in that sense necessarily constitutes actionable public nuisances. Even if it were demonstrated that the defendant breached some statutory obligation or prohibition in causing or permitting the slippage of the sand dune into Moreton Bay that fact would not of itself give the plaintiffs any cause of action -- 38 of 50 -- 35 for breach of statutory duty. In this respect I refer only to Beaudesert Shire Council v. Smith (1966) 120 C.L.R. 145 and to Martin v. Queensland Airlines Pty. Ltd. (1956) St. R. Qd. R. 1 362. Much less would it necessarily amount to a public nuisance. Of course in .those cases the question was whether it appeared from the terms of the relevant statute that it was intended that a person injured by breach of a statutory obligation would have a right of action or whether it was the statutory intention only to make the breach punishable by fine etc. It is interesting to note the discussion of Clarke & Wife v. Brims (1947) 1 K.B. 497 in Martin's Case where the following observation of Morris J. at p. 505-6 is cited:- "The question is not whether this defendant would be liable under the penalty section of the Act of 1927 but on the assumption that he was in breach of an obligation laid down by that Act whether he becomes liable to be sued at the instance of any person aggrieved or consequentially injured. Applying the tests which have been laid down my view is that the Act imposes public duties only." It seems not ever to have been suggested that the injury of a plaintiff by reason of a breach of a legislative provision imposing only a public duty and not giving him any personal right to sue for breach of statutory duty nevertheless gives him a right to sue in public nuisance for "particular damage". No suggestion is made in this case that the slippage of the sand dune resulted from the defendant's breach of any statutory or public duty imposed by any legislative provision. In Tate & Lyle v. Greater London Council & Anor. (1983) 2 A. C. 509 the defendant so constructed ferry terminals as to cause siltation of channels giving access to the plaintiff's -- 39 of 50 -- 36 jetties. The Port of London Authority had granted licences to the plaintiff to dredge channels and erect the jetties. The licences granted no right to any depth of water in the channels once dredged and the plaintiff had no right other than the public right of navigation to bring vessels to their jetties. The House of Lords rejected the plaintiff's contention that the effect of granting the licences was to confer on the plaintiffs a right to a sufficient depth of water to use their jetties. Lord Templeton at p. 535 considering the legal effect of the grant of licences under s. 66(1)(b) of The Port of London Act 1968 said:- "In my views. 66(1 )(b) did not confer on Tate & Lyle any rights to the maintenance of any particular depth of water near or leading to the jetties." In my view the fishing licences which permitted the holders thereof lawfully to catch prawns with nets cannot be said to give those holders any right whether public or private to have the fishing grounds where they fish pursuant to such licences kept free of material of the sort deposited in Moreton Bay by the slippage in issue. It cannot be said therefore that in any relevant sense the right of the plaintiffs to take prawns by commercial nets of designated size and design is any different from the right of any other members of the public to take prawns or fish without using such nets. I am unpersuaded upon the authorities that the depositing of material in fishing grounds which makes it more difficult to catch fish by using certain types of fishing gear so interferes with "a right" of a public nature as to constitute it a public nuisance. I am aware of no authority which supports such a -- 40 of 50 -- 37 contention apart from two of the Canadian cases to which I have referred and such an interference seems to have no analogy with an interference with a public right of way upon land or a public right to navigate upon Moreton Bay. However let it be assumed that the slippage of the sand dune into Moreton Bay, for practical purposes making it impossible economically to fish for prawns in those parts of the bay affected, was sufficient to constitute a public nuisance; the next point for determination is whether the plaintiffs were so specially or particularly damaged as to permit them to sue for damages in this case. For the plaintiffs much reliance was placed upon Blundy, Clarke and Company Ltd. v. The London and North Eastern Railway Company ( 1 9 3 1 ) 2 K . B . 3 3 4 . That was a case where sand and gravel merchants who habitually used a canal containing a lock to convey their material to markets were awarded damages for delay on the part of the person in control of the lock in repairing it when it fell into disrepair. It was held that the plaintiffs were entitled to damages for delay "in as much as they had suffered special and particular damage above that sustained by the public generally." On my reading of that case however it provides little support for the plaintiffs in the present case. It appears from the resume of facts in the judgment of Scrutton L.J. that the canal and lock in question had been constructed in the middle of the eighteenth century. Thereafter various acts had been passed giving various persons the right to control the canal and lock and the right to charge for its use. In the mid-nineteenth -- 41 of 50 -- 38 century an act was passed imposing upon a company a duty "to keep and maintain the said River Ure Navigation and all works thereto belonging well and sufficiently repaired." It was conceded upon the hearing that the act imposed upon the defendant in that case a duty to use reasonable care to keep the lock and canal in repair and to make it liable for damages if it negligently failed to do so. It was also conceded that the defendant would be liable for damages if it was negligent in failing to repair and restore the lock within a reasonable time. The cause of action was breach of statutory duty (vide p. 350). On the facts of that case it was found that the Railway Company was negligent in spending four months longer than it should have in effecting repair. It was in this period of four months that the plaintiff .had suffered economic damage in being forced to make alternate arrangements for the transport of its sand and gravel. It is true that at pp. 352-355 Scrutton L.J. considered the argument advanced on behalf of the defendant that the plaintiffs could not succeed because they had suffered "no particular or private special damage by the closing of the lock but only the general damage which every member of the public trying .to use the navigation and the lock would suffer." His Lordship considered a number of cases where compensation had been claimed under the Land Clauses Consolidation Act on the basis that the claimant's property had been "injuriously affected". At p. 353 he analysed the relevant facts of the case • in the following terms:- "The position of the present plaintiffs is that paying tolls they had brought barges on to the navigation which could not get out of the navigation above Milby Lock because the lock was closed and that they carried -- 42 of 50 -- 39 on by means of the navigation a trade in gravel which in certain parts of the navigation they could not profitably exercise because the chief method of carriage by the navigation was barred to them by the closing of the lock. --- There being here no question involving the Land Clauses Consolidation Act the decisions collected by Erle C.J. in his judgment in the Exchequer Chamber ( in Rickets case) show in my opinion that the facts in the present case would constitute particular damage sufficient to entitle the plaintiff to maintain an action for infringement of a public right unless the subsequent decisions of the House of Lords in the cases under the Land Clauses Consolidation Act overrule them. Erle C.J. says:- 'The action lies where the exercise of the right of way by or on behalf of the plaintiff has been obstructed and a greater damage has been caused to him thereby than is caused to the Queen's subjects in the general by obstructing them in the exercise of their right.'" His Lordship then considered a number of authorities dealing with the rights of persons whose way upon the public highways, etc. was obstructed causing them economic loss. Dealing in particular with Rose v. Miles 4 M.S. 101 he observed of that case:- "The plaintiff was obstructed in his use of the navigable water and was damaged by being obliged to unload his barge and carry the goods overland. In all these cases the plaintiff was exercising his right of way and the defendant obstructed that exercise and caused particular damage thereby directly and immediately to the plaintiff." In my view the facts in Blundy Clarke & Co. are so dissimilar from the facts in the present case as to provide no support for the plaintiffs' contention that the economic damage they suffered as the result of interference with their ability to fish for prawns was special or particular to them as understood in the law of public nuisance. Blundy Clarke & Co. was not a case in public nuisance and it is unclear to me why it -- 43 of 50 -- 40 was argued that to be recoverable, damages for economic loss resulting from breach of a statutory duty not to be negligent in maintaining and repairing the canal lock had to be shown to be particular to the plaintiff. However, accepting that to have been the position the finding that it was particular on the facts of that case, in my view gives no support to the plaintiffs' contention in this case that their economic loss resulting from an interference with their fishing for prawns is special or particular to them. In my view the authorities demonstrate clearly enough that a plaintiff who suffers particular damage by reason of a public nuisance involving obstruction of public right of way may recover damage for merely economic loss. In dealing with nuisance involving the creation of a danger to persons or property in navigable waters (equivalent to a highway) in The Wagonmound (No. 2) (1967) A.C. 617 Lord Reid in delivering the judgment of the Board with respect to liability for damages for public nuisance at p. 639 observed:- "And although negligence may not be necessary fault of some kind is almost always necessary and fault generally involves foreseeability e.g. in cases like Sedley Denfield v. O'Callaghan the fault is in failing to abate the nuisance of the existence of which the defender is or ought to be aware as likely to cause damage to his neighbour -- the present case is one of creating danger to persons or property in navigable waters ( equivalent to a highway) and there it is admitted that fault is essential - in this case the negligent discharge of oil. But how are we to determine whether the state of affairs in or near a highway is a danger? This oepends I think on whether injury may reasonably be foreseen. If you take all the cases in the books you will find that if the state of affairs is such that an injury may reasonably be anticipated to persons using the highway it is a public nuisance (per Lord Denning M.R. in Morton v. Wheeler). -- 44 of 50 -- 41 So in the class of nuisance which includes this case foreseeability is an essential element in determining liability. It could not be necessary to discriminate between different cases of nuisance so as to make foreseeability a necessary element in determining damages in those cases where it is a necessary element in determining liability but not in others. So the choice is between it being a necessary element in all cases of nuisance or in none. --- It is not sufficient that the injury suffered by the respondents' vessels was the direct result of the nuisance if that injury was in the relevant sense unforeseeable." I have discovered no authority for the proposition that there is any constraint on the limits of foreseeability as a determinant of liability for damage for public nuisance similar to the constraint of proximity upon the existence of a duty of care to avoid foreseeable damage of certain sorts in the tort of negligence. I have already indicated that it is my view that in the present case there is not sufficient proximity between the plaintiffs and the defendant with respect to the foreseeable economic loss which would accrue to the plaintiff should the sand dune under the control of the defendant slip into Moreton Bay to impose upon the defendants a duty in negligence to take reasonable steps to avoid causing such economic loss to the plaintiffs. It would be a quite unsatisfactory state of affairs if upon the same facts by pursuing an action for damages for public nuisance the plaintiffs were able to avoid satisfying the test of proximity and recover in nuisance damages for economic loss caused to them in their prawn fishing endeavours which would not be recoverable in negligence. I would adopt the approach of Lord Radcliffe in Esso Petroleum Co. Ltd. v. -- 45 of 50 -- 42 Southport Corporation (1956) A.C. 218 at p. 242, and conclude that an essential issue in the plaintiff's cause of action in public nuisance on the facts in this case is the negligence of the defendant in the construction of the sand dune which caused its slippage into Moreton Bay. Newark in his consideration of the Boundaries of Nuisance 65 L.Q.R. at pp. 483 and 485 draws attention to aspects of the development of the law governing the right of a person to recover damages for public nuisance which suggest that for practical purposes that right was similar to that in negligence to recover damages. I refer also to Spencer's conclusions in (1989) Cambridge Law Journal at pp. 81-83. In "An Introduction to English Legal History" 2nd Ed. ( 1979) at p. 362 J. H. Baker observes with respect to the development of the right of persons who can show "particular damage" to recover in public nuisance:- "Some conceptual confusion has arisen from calling these private actions 'nuisance'. They have little, if any, affinity with private nuisance and were in fact innominate actions to recover compensation for the special loss. If they belong to any particular genus it is the tort of negligence. The significance of common or public nuisance in the realms of tort is not that it furnishes a distinct cause of action which would not otherwise exist, but that it takes away existing causes of action in order to prevent a multiplicity of lawsuits." It is unnecessary for me however to give further consideration to this matter and in particular upon the assumed facts in this case to answer the defendant's question whether the "controls" applied in negligence to recovery of a loss are applicable to a claim for that loss in nuisance. In nuisance one "control" is the necessity for the plaintiff to show -- 46 of 50 -- 43 particular damage. However to the extent that fault must be shown to establish publ~c nuisance, The Waggonrnound (No. 2) is authority for the proposition that foreseeability of injury or damage is relevant. One control in negligence, that of proximity, is expressed to go to the extent of the duty while in public nuisance, the control of particularity, is expressed to go to the nature of the damage recoverable. Foreseeability would seem to be a constraint in both negligence and public nuisance. While no doubt it is desirable that the plaintiffs' rights to recover their economic loss against the defendant be equally constrained in negligence and public nuisance having regard to the views I have already expressed, it is unnecessary and unhelpful to embark upon any consideration of the extent to which the "controls" for recovery of economic loss in negligence and public nuisance upon the facts of this case may in theory or in effect coincide or overlap. It is my view that in permitting or causing the sand dune to slip into Moreton Bay so as to interfere with the capacity of persons to net prawns in parts of that bay for a number of years there was not an interference with a public right o~ such a nature as to constitute the slippage a public nuisance for which the defendant is responsible. I would answer Question 3 posed by the parties to this application in the negative. I am also of the view that even if the slippage resulting from the defendant's failure to take reasonable care did amount to a public nuisance the economic loss suffered by the plaintiffs was not particular damage for which they could -- 47 of 50 -- 44 recover in an action in public nuisance. I have already dealt with authorities that support this view and in particular the Canadian cases to which I have referred. The damage to the plaintiffs' fishing gear amounting to nearly $40,000.00 would be sufficiently particular to enable them to recover that damage if the deposition of the material in Moreton Bay as a result of the slippage of the dune constituted a public nuisance. However the economic loss which the plaintiff suffered is not in any way consequential upon the damage to the fishing gear which would be particular damage. The economic loss flowed not from any particular damage but from the inability of the plaintiffs to trawl for prawns with their prawning nets for four seasons in that part of Moreton Bay affected by the slippage. This loss flowed from an impediment upon fishing which existed for all licensed fishermen who might wish to trawl their nets for prawns in this part of Moreton Bay. Had the deposition of material in the Bay had the effect of so confining the plaintiffs' vessels in a part of the bay that they were unable to work anywhere so that they were obliged to expend money to free their boats from such confinement such economic loss in my view may have been sufficiently particular to be recoverable. Tate & Lyle v. G.L.C. (supra) is clear authority for the proposition that provided it is sufficiently particular, loss which is merely economic is recoverable in public nuisance. However those are not the facts of the present case. The economic loss which the plaintiff suffered in the present case -- 48 of 50 -- 45 flowed simply from the fact that they were unable to trawl for prawns for four seasons in certain parts of Moreton Bay because to do so would cause too much damage to their nets. This in my view is not sufficiently particular to give them a cause of action even if the slippage did constitute a public nuisance. Both parties to this application have treated question 4 as raising a point of law. I have reservations as to whether the question of particularity upon the assumed facts is a question of law rather than a question of fact. However at the request and upon the submissions of both parties I treat it as one of law. I would answer question 4 as follows:- If the slippage of the sand dune resulted in the creation of a public nuisance:- (a) With respect to damage to their fishing gear to the extent of $39,880.00, such damage is sufficiently particular to permit the plaintiffs to recover it; (b) the economic loss suffered by the plaintiffs as the result of their inability to trawl for prawns in that part of Moreton Bay affected by the slippage of the sand dune is not sufficiently particular to permit recovery by the plaintiffs. I dispose of the points of law raised by the parties to this application by answering questions numbered 1, 2, 3, 4 and 5 contained in exs. 1 and 2 hereof in the following way:- Question 1 - Not with respect to pure economic loss. Question 2 - No. Question 3 - No. -- 49 of 50 -- 46 Question 4 - (a) with respect to damage to fishing gear to the extent of $39,880.00 - Yes. Question 5 ( b) with respect to economic loss to the extent of $1,220,000.00 - No. Not on the facts of this case. It is unnecessary to answer the question whether if pure economic loss were recoverable in this case the controls applied in negligence would be applied in nuisance. -- 50 of 50 --