References: (1861) 10 CB (NS) 765, [1861] EngR 314, (1861) 10 CB NS 765, (1861) 142 ER 654
Links: Commonlii
Coram: Williams J, Byles J
The trustees of a turnpike road converted an open ditch by the side of the road into a covered drain but did so negligently, and the catch pits were constructed and kept, so that the drain was at times of heavy rain insufficient to carry off the water to its accustomed channel and was diverted onto other land causing damage. The issue was whether time began to run against a plaintiff from the date of the original construction of the works.
Held:’the continuance by the defendants of that negligent and improper condition of the road under their charge, if accompanied by fresh damage to the plaintiff, constitutes a new cause of action’. And ‘Suppose an action to have been commenced immediately after the first injury accrued to the plaintiff’s pits from the flow of water down the road in question: when that cause came to be tried, the only question would be how much damage the plaintiff had actually sustained. It would be monstrous injustice to hold that the damages must be assessed upon that assumption. All that the jury could do would be to find what damages the plaintiff had sustained from the wrongful act complained of: and they would be told to give him such damages as they might find he has sustained down to the time of the commencement of the action. According to the assumption, the plaintiff has sustained damage from the wrongful construction of the nuisance. Did the statute intend that he should have no remedy for that? The true answer to this objection, as it seems to me, is, that no fresh cause of action arises from each fresh damage, but that, where there is not only a fresh damage but a continuance of the cause of damage, such continuance of the wrongful act which caused the damage constitutes a fresh cause of action.’
Byles J said: ‘There would be a new and distinct injury every time a storm came; and this declaration is in form a declaration for a continuation of a nuisance.’
Keating J stated:
‘Here is a continuation of the nuisance, and a new distinct and complete cause of action in respect thereof, for which I think the plaintiff had a right to sue.’