Benning v Wong

[1969] HCA 58

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Menzies, Windeyer and Owen JJ.

BENNING v. WONG

(1969) 122 CLR 249

3 December 1969

Dangerous substances

Dangerous substances—Personal injuries—Rule in Rylands v. Fletcher—Exercise of statutory authority—Escape of gas from pipes under public street—Onus of proof of negligence—Australian Gas Light Company Acts, 1837-1935 (N.S.W.)—Gas and Electricity Act, 1935-1965 (N.S.W.).

Decisions

December 3.
The following written judgments were delivered: -
BARWICK C.J. This is a demurrer by a defendant to a count of a plaintiff's declaration in a common law action in the Supreme Court of New South Wales. The Supreme Court, Court of Appeal Division, disallowed the demurrer (1968) 70 SR (NSW) 290 ; 88 WN (Pt 2) 88 . The defendant now appeals to this Court submitting that the count to which it demurred disclosed no cause of action. I shall return at a later stage to the detail of the pleadings after I have expressed my opinion as to the substantial question of law involved in the matter. (at p254)

2. The plaintiff sues the defendant to recover damages for personal injuries sustained by her from gas whilst on land which at relevant times she occupied and which bounded on a public street. According to the plaintiff gas escaped on to the land so occupied by her from pipes laid by the Australian Gas Light Co. in the public street under statutory powers in that behalf and used by it for the conveyance of gas for domestic and industrial use. Benning is the nominal defendant in the action. But that company is the real defendant and I shall refer to it as the defendant. (at p254)

3. The defendant claims that because a statute authorized it to lay and to use the gas pipes in a public street the rule that those who bring on to land dangerous things or substances likely to do harm if they escape from that land are bound to keep such things or substances on the land and are liable if the thing or substance escapes to other land and there does damage does not apply to it in relation to the escape of gas of which the plaintiff complains. The defendant says that the only relevant cause of action available to the plaintiff in the circumstances is for breach of a duty of care which would involve the plaintiff in affirmative proof on a balance of probabilities that the escape of gas of which the plaintiff complains was due to a want of care on the part of the defendant in or about the laying of the pipes or in their maintenance or otherwise in its operations as a supplier of gas by means of such pipes. (at p255)

4. As a subsidiary matter, the defendant in any case says that the damages for which a defendant is liable in an action for the escape from land of a dangerous thing or substance do not include any damage for personal injuries suffered by the landholder or occupier to whose land the thing or substance has escaped. (at p255)

5. In my opinion, the relevant principles of law for the disposal of the points substantially in issue between these parties are not really in doubt, although some decided cases purporting to apply those principles do give rise to some difficulties. It should now be regarded as settled that a person who brings on to land a thing or substance likely to prove dangerous to land or persons if it is not confined to that land is absolutely liable to the owners or occupiers of land to which that dangerous thing or substance escapes for damage done by that thing or substance to that other person's land or to that person, or a person for injuries to whom that person is responsible, on that land. In this statement of the result of the judgment in Rylands v. Fletcher (1868) LR 3 HL 330 as applied in later decisions I have included personal injury in the damage for which the defendant is liable. I shall give my reasons for this in due course. The defendant in an action brought to recover such damage need not be nor have been the owner or occupier of the land to which he has brought the dangerous thing or substance. (at p255)

6. If what proximately caused the mischief to the plaintiff in such an action was actually authorized by a statute the plaintiff can have no remedy unless the statute gives it, e.g. by directing the payment of compensation. The inquiry, therefore, when a defendant sets up in answer to such a common law claim, i.e. a claim founded on Rylands v. Fletcher, statutory authority, firstly, is what on its proper construction has the statute relevantly authorized and, secondly, is the authority which it gives absolute or qualified. (at p255)

7. In the construction of statutes authorizing the performance of works, there are cardinal rules, the observance of which is fundamental to our system of law. Firstly, the statute will not be construed to authorize an interference with common law rights without compensation without unambiguous and compelling language. It is for the Parliament to make its will in this respect plain. It is not for the courts to search out implications which so displace or reduce common law rights. Secondly, a statute only authorizes those acts which it expressly nominates and those acts and matters which are necessarily incidental to the acts so expressly authorized or to their execution. Thirdly, a statute which authorizes the doing of an act or the performance of a work in general only authorizes it to be done in a careful manner. If the authority is to extend to a careless execution of an authorized act, the plainest of language must be used. (at p256)

8. The third proposition has two aspects : firstly, a person who has to justify his otherwise tortious act by an assertion of statutory authority must show as part of his justification in defence that he did the authorized act skilfully and carefully: secondly, the statutory authority to do the authorized act imports a duty of care towards persons who are, or whose property is, likely to be affected by the performance of the act. But a person injured in his person or property by such an act who has no other cause of action than the breach of this duty of care must establish that breach. (at p256)

9. This condition of skill and care in the performance of the authorized act is in reality but the obverse of the proposition that a statute authorizes matters necessarily incidental to the performance of the act expressly authorized. What can be avoided by skill and care is not necessary in this connexion. Or put another way, the statute operates to protect the actor only from those consequences of the act which the statute has authorized him to do which cannot be avoided by the exercise of due care. Thus, escape of the dangerous thing or substance which the statute has authorized to be placed on the land which cannot be avoided by the exercise of reasonable skill and care may properly be regarded as incidental to the authorized work which brings the dangerous thing or substance to the land and therefore in a sense as being covered by the statutory authority. But, as it seems to me, in general it would rest on the defendant sued for the consequences of the escape to establish that such escape is in this sense an incident of the authorized work. The defendant does this by establishing that in the performance of the work, which in general will include its maintenance as well as its initial installation, reasonable skill and care was exercised. The escape is then unavoidable in a relevant sense. (at p257)

10. An authority by statute to lay and use water pipes for the supply of water in England has been held to protect the person laying and using them from the consequences of water escaping from a burst water pipe, which the exercise of reasonable skill and care could not avoid, it being either proved, as seemingly it was in Green v. Chelsea Waterworks Co. (1894) 70 LT 547 , or judicially noticed, that due to climatic influences it is not possible in England by the exercise of due care to avoid all bursting of water pipes. Again, an authority to run a steam locomotive has been held to protect the operator from the consequences of the escape of sparks from such a locomotive which reasonable skill and care cannot prevent because it seems to be judicially accepted that it is not possible by the exercise of due care to prevent the emission of all sparks. But in neither case is the operator protected from the consequences of his or its want of care in the laying of the pipes or in the operation of the locomotive. (at p257)

11. The application of the principles which I have stated to the situation of persons or bodies with statutory authority to run steam locomotives has resulted in the decided cases in what might be thought, and which I would think, the anomalous position that as reasonable care may not prevent the emission of all sparks from steam locomotives wherever used, a person injured by the emission of a spark from a locomotive must prove that the particular emission of sparks could have been avoided by reasonable care and that it was due to a lack of reasonable care. The case of the authority having statutory power to lay water pipes and charge them with water under pressure is perhaps not so clear in the reported decisions but it may be that because of climatic conditions such a case may be assimilated to the case of the operation of steam locomotives with the result that a person injured by the bursting of a water pipe laid by such an authority must establish negligence in some relevant respect on the part of that authority. However, as will be seen in my later discussion of the decided cases, I doubt whether the case of the authority supplying water is an exception to what, in my opinion, is the general rule that the justification of an otherwise tortious act namely, the failure to keep the dangerous thing or substance upon the land to which it has been brought involves the defendant in proof both of the statutory authority and of a skilful and careful exercise of the authority which he sets up in defence. (at p258)

12. But acceptance of the views expressed in these decided cases does not mean that the existence of a statutory authority necessarily precludes the application to the authorized person or body of the common law principles expounded in Rylands v. Fletcher (1868) LR 3 HL 330 and the cases which followed and applied it. If the activities of the authorized person or body bring into existence a Rylands v. Fletcher situation then, in my opinion, that person or body must defend himself or itself and in doing so can rely on the statute. In general, but of course depending on the construction of the particular statute, this, as I have said, will involve the authorized person or body in proof that the authorized work was carried out with due skill and care. It will be observed that, whilst the liability which attaches in circumstances covered by Rylands v. Fletcher, in the case of a person who has no statutory authority to bring the dangerous thing or substance upon the land, is absolute or as it is said "strict", in the case of a person or body having such statutory authority, the liability where all escapes cannot be prevented becomes in reality a liability for failure to exercise due skill and care in relation to the prevention of the particular escape of the dangerous thing or substance, not as a breach of a duty of care but because only a skilful and careful exercise of the statutory power affords a complete defence. Thus the benefit of the reduction in the otherwise absolute common law liability can only be obtained by the proof by the authorized person or body of the exercise of due skill and care in and about the placement and maintenance on the land of the dangerous thing or substance. That proof in substance really establishes that the act which caused the damage was authorized by the statute, i.e. because unavoidable even by the use of due skill and care, it was necessarily incident to the performance of the act specifically authorized by the statute. I am conscious that in that view little, if any, significance would attach to a "nuisance clause" in an authorizing statute unless it is read as maintaining absolute liability. Unavoidable consequences of the exercise of the statutory authority may be regarded as authorized, though otherwise amounting to a nuisance : avoidable consequences in themselves tortious remain actionable. The "nuisance clause" is nonetheless a useful emphasis included in a statute for more abundant caution. Sir Samuel Griffith in Fullarton v. North Melbourne Electric Tramway and Lighting Co. Ltd. (1916) 21 CLR 181, at p 188 suggests that such clauses are inserted to obviate the difficulty of determining whether or not in any particular case the nuisance which results from an exercise of a statutory power or authority is authorized by the general words of the statute. (at p259)

13. I shall at a later stage discuss some of the authorities but it is convenient that having expressed my opinion in the above terms, I should presently refer to the exposition of the relevant law by Lord Wright to be found in Northwestern Utilities Ltd. v. London Guarantee and Accident Co. Ltd. (1936) AC 108 I quote two passages from their Lordships' advice. First, it is said(1936) AC, at pp 118, 119:

"That gas is a dangerous thing within the rules applicable to things dangerous in themselves is beyond question. Thus the appellants who are carrying in their mains the inflammable and explosive gas are prima facie within the principle of Rylands v. Fletcher(1868) LR 3 HL 330 affirming Fletcher v. Rylands(1866) LR 1 Ex 265 : that is to say, that though they are doing nothing wrongful in carrying the dangerous thing so long as they keep it in their pipes, they come prima facie within the rule of strict liability if the gas escapes : the gas constitutes an extraordinary danger created by the appellants for their own purposes, and the rule established by Rylands v. Fletcher requires that they act at their peril and must pay for damage caused by the gas if it escapes, even without any negligence on their part. The rule is not limited to cases where the defendant has been carrying or accumulating the dangerous thing on his own land : it applies equally in a case like the present where the appellants were carrying the gas in mains laid in the property of the city (that is in the sub-soil) in exercise of a franchise to do so : Charing Cross Electricity Supply Co. v. Hydraulic Power Co. (1914) 3 KB 772 This form of liability is in many ways analogous to a liability for nuisance, though nuisance is not only different in its historical origin but in its legal character and many of its incidents and applications. But the two causes of action often overlap, and in respect of each of these causes of action the rule of strict liability has been modified by admitting as a defence that what was being done was properly done in pursuance of statutory powers, and the mischief that has happened has not been brought about by any negligence on the part of the undertakers."

Again, it appears that(1936) AC, at p 120:

"Where undertakers are acting under statutory powers it is a question of construction, depending on the language of the statute, whether they are only liable for negligence or whether they remain subject to the strict and unqualified rule of Rylands v. Fletcher(1868) LR 3 HL 330" (at p259)

14. I read these passages in the context of the whole judgment as expressing, perhaps in a somewhat condensed and compendious form, the same opinion as I have earlier endeavoured to develop. In my opinion, the sentence on p. 119 "But the two causes of action often overlap, and in respect of each of these causes of action the rule of strict liability has been modified by admitting as a defence that what was being done was properly done in pursuance of statutory powers, and the mischief that has happened has not been brought about by any negligence on the part of the undertakers" is the complement of the assertion on page 118 "that though they are doing nothing wrongful in carrying the dangerous thing so long as they keep it in their pipes, they come prima facie within the rule of strict liability if the gas escapes : the gas constitutes an extraordinary danger created by the appellants for their own purposes, and the rule established by Rylands v. Fletcher (1868) LR 3 HL 330 requires that they act at their peril and must pay for damage caused by the gas if it escapes, even without any negligence on their part". The words "and the rule established by Rylands v. Fletcher requires that they act at their peril and must pay for damage caused by the gas if it escapes, even without any negligence on their part" ought, in my opinion, to be read as no more than an exposition of the prima facie position before it is modified by the defence which the existence of a statutory authority may afford the undertakers. In my opinion, without discussing the question whether or not the quoted passages were fundamental to the decision of the case and thus authoritatively binding, this Court should accept those passages understood in the sense I have indicated as properly expressing the relevant law. (at p260)

15. Here for present purposes, the bringing of the dangerous substance namely, gas, to the public street, is admitted. So is the fact that the gas was not kept within that part of the public street in which the pipes were laid by the defendant and the fact that it thence came upon the land occupied by the plaintiff, there causing damage. Prima facie therefore a common law right of the plaintiff in the enjoyment of the land occupied by her has been breached by the defendant. The defendant says that its statutory authority to lay and use the pipes precludes the application to it of the cause of action founded on Rylands v. Fletcher (1868) LR 3 HL 330 . (at p260)

16. Assuming that the Court is free to look at all the statutes referred to in the Gas and Electricity Act, 1935-1965 (N.S.W.) as the Australian Gas Light Company Acts, 1837-1935* (the Acts) some minor considerations arise and with these I shall deal in turn. But putting aside matters of detail, the Acts authorize the opening of public streets and the laying therein of gas mains. The conveyance of gas under pressure is clearly authorized and in relation to street lighting within the bounds of the City of Sydney as they stood in 1837, perhaps required. Of course, it cannot be within judicial knowledge that with the utmost of care it is impossible to prevent the escape of gas from gas mains. It probably could not be so known that in Australia or, at any rate, in the temperate part of it, that it is impossible notwithstanding the exercise of due care, to prevent water mains from bursting though this might be concluded from evidence as it would seem to have been in Cox Bros. (Aust.) Ltd. v. Commissioner of Waterworks (1933) 50 CLR 108, at p 119 . The Acts do contemplate that gas may escape but expressly provide that the escape shall be immediately terminated, quite apart from resultant damage. In my opinion, it could not be said without evidence that the escape of gas from gas mains is an unavoidable incident of laying and using gas mains. If it cannot be so said, it follows, in my opinion, that the Act does not absolutely protect the operator of the gas main from the consequences of the escape of gas in all circumstances from the main laid in pursuance of the powers it gives. Or put the other way, the operator of the main cannot, in my opinion, rely simply upon the statutory authority to lay and use the main as a defence to an action within Rylands v. Fletcher (1868) LR 3 HL 330 for the escape of gas but must establish the exercise of due care in the laying and in the use of the gas main from which the escape has come. The statute may protect the operator from some escapes of gas, namely, those which due care could not avoid, but not from all escapes. As I have indicated, these are but two sides of the one basic proposition hat in general a statute in authorizing the doing of an act requires as a condition of the grant of the authority, the exercise of due care in performing the authorized work. (at p261)

17. Before turning to discuss the principal reported cases to which we were referred in argument, I would now desire to say something of the pleadings in this matter. For some reason the plaintiff alleged in her count to which the defendant has demurred that the defendant had been authorized by statute to lay and use the pipes for the conveyance of gas and that "pursuant to such power" it had laid and used the mains. There was no specification of the statute to which the count referred. The action as I have said, is brought against a nominal defendant, the secretary of the Australian Gas Light Co. In the first count in the plaintiff's declaration it was said that the defendant was "the secretary for the time being of the Australian Gas Light Co. . . . and liable by statute to be sued as nominal defendant on behalf of the said Australian Gas Light Co.". In fact the statute which made the defendant so liable was the Australian Gas Light Company Act of 1837. It seems to have been thought by the Supreme Court that these circumstances entitled it to treat the Act of 1837 as the statute which is referred to in the count subject to demurrer. But, in my opinion, this was not permissible and, with respect, the Supreme Court was not entitled upon a demurrer to treat the count as if the unspecified statute was that Act or for that matter any other specific Act. Further, it was, in my opinion, irregular to have included in the demurrer book any count other than that the subject of the demurrer. The practical difficulties in the way of taking any such course as was taken by the Supreme Court are readily seen when all the Australian Gas Light Company Acts are looked at. The Act of 1837 authorized the laying of pipes in public places within the then boundaries of the City of Sydney. That Act would appear to have laid some obligations on the defendant to supply gas. It laid duties upon it with respect to the escape of gas and provided for the payment of compensation in certain events. (at p262)

18. The Act of 1858 on the other hand simply authorized the laying of pipes in public places outside those boundaries of the City of Sydney. It imposed no obligation to supply gas nor any of the other duties nor the obligation to pay compensation. But it did incorporate s. 79 of the Act of 1837 to which I shall have occasion later to refer. It cannot be known from the pleading where the pipe in question was laid, whether within or without those boundaries of the City of Sydney. (at p262)

19. If taken strictly as a matter of common law pleading the demurrer falls for decision, in my opinion, on the footing that no more is known of the statute mentioned in the count than that it authorized the laying of the pipes in the public street and the supply of gas thereby by the defendant. The demurrer then asserts in substance that the mere existence of a statutory authority irrespective of the terms of the relevant statute precludes the existence of the cause of action founded on the escape of the gas from the public street on to the plaintiff's land. That, in my opinion, is a proposition which cannot be maintained. Having regard to the principles of statutory construction to which I have already referred, the statute referred to in the count, its terms not being known, must be taken to have only authorized the laying of the pipes with due care. It was suggested that the assertion in the count, that the work of laying the pipes in the public street for the conveyance of gas was done "pursuant to" the power, was a statement that the work had been done with due care. But, in my opinion, however much a pleading must be read against the pleader, so much cannot be taken from the word "pursuant". It means in the count, in my opinion, no more than that the defendant in laying the pipes or supplying gas through them was affecting to exercise the statutory power it had to lay and to use the pipes. To read the count as alleging that the pipes were laid and maintained with due care, in my opinion, makes nonsense of the pleading and attributes an incredible intention to the pleader. The count alleged an infringement of a common law right by the emergence of gas from the defendant's pipes upon the plaintiff's land, there doing damage. The mere fact of statutory authority to lay and use the pipes did not in my opinion necessarily protect the defendant from suit for that damage. Thus, both as a mere matter of pleading and also as a matter of substantive law the plaintiff's count in the declaration did not fail to disclose a cause of action. Treating the demurrer book as only containing the count and the demurrer, the demurrer must necessarily, in my opinion, fail. (at p263)

20. However, the Supreme Court dealt with the matter on the footing that it could treat the Act of 1837 and perhaps all the Acts collectively referred to as the Australian Gas Light Company Acts, 1837-1935, as incorporated in the demurrer book. The defendant in the argument before the Court has been willing to treat all the Acts as the "statute" mentioned in the count and the plaintiff, without abandoning her primary position which requires the demurrer to be dealt with strictly and regularly as a matter of pleading, has been willing that the Court should look at all those statutes, though she claims that in truth because of the location of the pipes in question the relevant statute is that of 1858. But as will be seen from what follows, nothing ultimately turns in my opinion on the difference between the Acts, or indeed upon any question whether they are all or any of them public as distinct from private statutes, a matter which was discussed in argument. (at p263)

21. Before turning to an examination of the authorities, I should turn to s. 79 of the Act of 1837, which is incorporated into the Act of 1858. It is in the following terms :

"79. And be it further enacted. That nothing herein contained shall extend or be construed to extend to prevent any persons from proceeding against the said company or against any of their officers servants or workmen in respect of any works of the said company or the method which shall be employed by them for furnishing such light as aforesaid as a public or private nuisance or for bringing an action against any of the said company or any of their officers or servants or workmen for any injury sustained by reason of any such works or method of lighting whether such injury shall proceed from the nature of such method of lighting or the carelessness or want of skill of the person or persons employed thereon." (at p264)

22. It is, in my opinion, quite clear that this section does not itself purport to impose or itself be a source of absolute, or of any, liability. That was the submission made and rejected as to s. 13 of the Water, Gas, Electric and Telephone Companies Act (Alberta, Canada) in Northwestern Utilities Ltd. v. London Guarantee and Accident Co. Ltd. (1936) AC 108 . References in the reported cases to the need for particular language in the statutes that do impose strict or absolute liability are therefore irrelevant and beside the point in this case. (at p264)

23. What the section does is to provide expressly that the statute shall not be construed so as to displace rights which apart from the statute would arise from the exercise by the defendant of the power and authority given to it by the statute. The section is couched in terms of the bringing of proceedings. But quite clearly it is not merely protecting procedural rights. As often, the reference to the bringing of an action or proceeding or to the right to do so, comprehends substantial rights. That, in my opinion is the case here. The section does not give rights but it directs that the statute shall not be construed so as to take them away. It is not happily phrased, but it had a respectable ancestry in English statutes. Clauses of its kind have been the subject of a good deal of judicial discussion; the references to a number of the cases which include such discussions are to be found in Irvine and Co. Ltd. v. Dunedin City Corporation (1939) NZLR 741 (at p264)

24. The language of s. 79 quite evidently has to be accommodated to the grant of a power to place gas mains in public places. But that, as a matter of construction, does not seem to me to raise any insuperable difficulty. Whilst the section cannot be read as leaving the defendant open to an indictment or an action for the mere act of laying the gas mains in public places and there keeping them charged with gas under pressure, it can be read as directing that the statute should not be construed as protecting the defendant from the consequences of bringing gas into pipes in public places where nuisance or injury results. Some weight was laid in argument by the appellant's counsel on a distinction between nuisance and the cause of action founded on Rylands v. Fletcher(1868) LR 3 HL 330 In my disposal of this appeal I find no need for any exhaustive examination of this matter. Suffice it for my present purposes to say that, as of the date of the decision in Rylands v. Fletcher, the suggested distinction would have had no substantial validity. The cause of action was from its conception in the nature of an action for nuisance. Viewed as of this time, the distinction, in my opinion, lacks substance. The absence of continuity or recurrence in the escape of the dangerous thing or substance which might distinguish the cause of action from nuisance, strictly so called, has no bearing whatever, in my opinion, upon the requisites of a defence or justification. If in either case a statutory authority, be that authority put forward as a defence or as a justification, due compliance with the conditions, express or implied, of the grant of that authority must be established as part of the defence or justification. In relation to such a question as is here involved it matters not, it seems to me, whether or not the events complained of are subsumed under the category of nuisance. Nor do I think it matters that the parties thought it of consequence, that those events should not be so categorized. Strangely enough the declaration in this case bears a startling resemblance to the form of a count based on Rylands v. Fletcher (precedent 97) to be found in Principles and Precedents of Pleading (N.S.W.) (1961) by A.F. Rath, Q.C., where it is included under the heading of "Nuisance". Also, the escape of the gas in the instant case must in the very nature of things have continued for some considerable time. Accordingly, in my opinion, so far from the Australian Gas Light Company Acts amounting to a statute protecting the defendant from all consequences of exercising the authority given by the statute, it expressly directs that the statute should not be construed so as to do so. Taking the view of the principles involved in this case which I do, it is not necessary for me to decide whether the section maintains absolute liability in the Gas Light Co. It is sufficient for my purposes to say that, in my opinion, at least it emphasizes that the authority given by the statute is only to do the thing it expressly nominates with due care. In the presence of that section I do not think it possible to regard all escapes of gas as necessarily incidental to the work of laying the pipes and operating through them a supply of gas for domestic and industrial use. Whilst, in my opinion, apart from this section the demurrer should be overruled, I am of opinion that the majority of the Supreme Court were right in rejecting the demurrer because of the presence of s. 79 in the Acts to which the defendant claimed that the count referred. (at p266)

25. I now turn to discuss some of the reported decisions in the light of the principles which, in my opinion, should govern this case. There are two possible positions to be taken from expressions of opinion in the decided cases. Firstly, it may be thought that the mere fact of the existence of a statutory authority to bring the dangerous thing or substance upon the land precludes all use of the doctrine illustrated in Rylands v. Fletcher (1868) LR 3 HL 330 , and that as a consequence, where the statute does not completely absolve the operator from all liability from resulting damage, the only cause of action is one for breach of a duty of care. Secondly, it may be thought that, unless the statute authorizes the precise act which causes the damage, the effect of the statutory authority is only to exclude from liability all those escapes, which were unavoidable by the exercise of due care leaving a liability for those which were so avoidable but which were not avoided. On this view, as I have said, the onus of proof of unavoidability or of the exercise of due care and skill as the case may be is on the defendant. I will take first those cases decided in the United Kingdom and, second, those decided in Australia, not necessarily dealing with the cases chronologically. (at p266)

26. Burniston v. Corporation of Bangor (1932) NI 178 is a case frequently referred to in support of the view that the existence of a statutory authority to do the work from which the escape of a dangerous substance comes displaces the doctrine of Rylands v. Fletcher and throws upon a plaintiff suffering damage upon his land by the escape the onus of establishing negligence. The defendants in that case were authorized by statute to keep water in a reservoir for town water supply purposes. The water escaped due to a subsidence of the land supporting the reservoir. The question for decision was whether the defendants were absolutely liable for all damage caused by the escape. The answer was that they were not, Dunn v. Birmingham Canal Co. (1872) LR 7 QB 244 ; LR 8 QB 42 ; Snook v. Grand Junction Waterworks Co. Ltd. (1886) 2 TLR 308 , and Green v. Chelsea Waterworks Co. (1894) 70 LT 547 being the decisions principally relied upon. I think it most important to observe what, in my opinion, was meant by the Court of Appeal of Northern Ireland when it was said that Rylands v. Fletcher did not apply to the case. In my opinion, all that was meant was that in a case where the escape is from a work authorized by statute, the liability is not absolute : so to say does not deny that in defence to a prima facie Rylands v. Fletcher situation a defendant, who notwithstanding the statutory authority he may possess is liable for negligence in the performance of the authorized work, must as part of his assertion of that statutory authority, negate his lack of due care in order to complete the defence provided in the statute. It is, of course, quite true that in Dunn v. Birmingham Canal Co. (1872) LR 7 QB 244 ; LR 8 QB 42 and in Snook v. Grand Junction Waterworks Co. Ltd. (1886) 2 TLR 308 the onus of establishing negligence was placed on the plaintiff ; but, as it seems to me, no particular consideration was given to the conditional nature of the statutory authority in those cases and to the defensive position of the defendant in each case. (at p267)

27. The plaintiffs in Dunn v. Birmingham Canal Co. (1872) LR 7 QB 244 ; LR 8 QB 42 sued in negligence. The defences included a defence of statutory authority and that water escaped from the canal without negligence or default on the part of the defendants. A verdict was taken for the plaintiffs subject to a case to be stated by an arbitrator. Such a case was stated and the court, having power to draw inferences of fact was asked whether the defendants were liable on the facts for the damage caused to the plaintiffs' mines by the escape of water from the canal. (at p267)

28. The facts disclosed that the plaintiffs had worked their mine in proximity to the defendants' canal and thereby caused cracks and fissures in the bed of the canal from which the water escaped into and damaged the plaintiffs' mines. It was established that the defendants had properly constructed and maintained the canal and that "where the bed of a canal has been or is in the course of being broken by mining, there are no certain means of keeping the canal watertight". Cockburn C.J. said in the course of a judgment in which Lush J. concurred (1872) LR 7 QB, at pp 257 258:

"It must, therefore, be taken as an admitted fact, that there was no negligence on the part of the defendants contributing to the damage occasioned to the mine, unless, indeed, the omission to empty the water out of the canal above the plaintiffs' mine, while the mine was being worked, can be so considered. But I cannot think that it was at all incumbent on the company to interrupt the navigation, which it was their business to keep open for the accommodation of the public, in order to afford the plaintiffs the opportunity of getting their coal." (at p267)

29. After having decided that the case for the plaintiffs as pleaded was not made out, the court proceeded to consider whether there was any other possible cause of action available to the plaintiffs upon the facts as admitted or found. It would seem that various reasons were given why the plaintiffs could not succeed upon a cause of action based on Rylands v. Fletcher (1a). First it was said that the plaintiffs had brought the damage on themselves by mining in proximity to the canal. Second, that the defendants were acting under statutory powers which provided for compensation for damage caused by the exercise of the statutory powers and thirdly that the keeping of the water in the canal, which was the only relevant act of the defendants was expressly authorized by the statute. Mellor J. treated the question as (1) :

". . . whether, under the provisions of the Acts of Parliament which regulate the relation of the parties to each other, the defendants can be made liable in an action, without negligence in fact, for loss accruing to the owners of the mine by reason of the flooding thereof occasioned by their own act without some act or default done or suffered by the defendants."

I would respectfully agree that that was the question which emerged and that it permitted of only one answer. That answer did not involve any question of the onus of proof of negligence in a case where prima facie a Rylands v. Fletcher situation existed in respect of which the defendant relied upon statutory authority as a defence. (at p268)

30. Snook v. Grand Junction Waterworks Co. Ltd. (2). Huddleston B. in this case of an escape of water from a water main laid under statutory authority and charged with water to conform to a statutory duty to supply water, told a jury trying the question whether the defendant company had been negligent that as "the defendants were a statutory company and bound to supply the water . . . they were protected from the effects of the general doctrine . . ." (3) (i.e. Rylands v. Fletcher) : and that the plaintiff bore the onus of establishing causative negligence on the part of the defendant. In point of fact, it would seem from the report (4) that the defendants established that the failure of the pipe from which the water escaped was at least probably if not certainly due to climatic causes, the effect of which could not be prevented by the exercise of reasonable skill and care. But, none the less, the expression of opinion by Huddleston B. carries weight. (at p268)

31. Green v. Chelsea Waterworks Co. (5) is the case frequently referred to in discussion as to the effect of a statutory authority to bring a dangerous thing or substance on to land upon the liability which otherwise would exist for the escape of such substance to other land. I think it important to observe both the factual situation as found in this case and the precise contention set up and rejected. (at p269)

32. The plaintiff alleged that a water main had been placed on land adjacent to his premises and that it was constantly filled with water. He asserted two causes of action, one based on Rylands v. Fletcher and the other on negligence. The defendants pleaded a statutory obligation to construct and maintain the water main and that it was duly laid and maintained under and in pursuance of the obligatory statutory powers. They claimed that the statement of claim disclosed no cause of action - though it contained a claim for negligence - because the statute protected them against liability for damage unless caused by their negligence which they denied, asserting that the water main had been properly and skilfully laid down and maintained. Evidence on the issue of negligence was led, presumably by both sides, before the jury who tried the facts and found that the plaintiff's damage was not caused by any negligence on the part of the defendants in connexion with the water main. Upon further consideration by the trial judge after the return of the jury's verdict, it was submitted that the rule in Rylands v. Fletcher (1a) applied to the statutory authority in all its rigour and that, notwithstanding the provisions of the statute, the defendants were absolutely liable and to be taken as having obtained their statutory powers on the basis that they were responsible for all consequences of laying the pipes or charging them with water, whether or not such consequences were avoidable by the exercise of due care. It was this proposition which Mathew J. rejected and which Lindley L.J. so firmly denied. The Lord Justice's concluding words are significant "Here the defendant company were only doing what they were authorized to do by their Act, and as they were not guilty of negligence they are not liable for damage" (1). Mathew J. had concluded (2) :

"It is clear that with no amount of care or skill can they" (the defendants) "prevent the bursting of one of their pipes, and the consequent damage that may be occasioned to those who may be living near to where the bursting has taken place. It is said that it would be reasonable to suppose that Parliament intended to impose upon them this obligation, namely, the obligation of insurers. But it is manifest that, although the particular injury may not be one of frequent occurrence, it is one that is incidental to the exercise of their statutory powers ; in other words, it is impossible to carry on their undertaking without a liability of this sort."

i.e. of the bursting of a pipe not due to lack of the exercise of reasonable skill and care. What his Lordship said must be read against the background of the facts found by the jury, namely, that the defendants had not been guilty of any relevant negligence. (at p270)

33. In my opinion, this case does not decide that the existence of a statutory authority per se displaces liability derived from the escape of dangerous things or substances brought upon land. Nor does it decide anything as to the onus of establishing negligence or the absence of it. But, in my opinion, it is based upon the view that the consequences of the execution of a statutorily authorized work which cannot be avoided by the exercise of reasonable skill and care are to be regarded as incidental to the performance of the authorized work and are covered by the statutory authority to do it. To that extent, and if that be the fact, the statute itself will be an answer to the claims made under Rylands v. Fletcher(1868) LR 3 HL 330 (at p270)

34. Cox Bros. (Aust.) Ltd. v. Commissioner of Waterworks (1933) 50 CLR 108 reached this Court on appeal after a contest of fact which resulted in a finding that the respondent Commissioner had not been negligent in the laying of a water main which had burst with consequential damage to the appellant company, or in the maintenance and inspection of the main. The trial judge also found that the respondents were not negligent in failing to take steps after they became aware of the bursting of the main. One of the appellant's arguments was precisely the same as that of the appellant in Green v. Chelsea Waterworks Co.(1894) 70 LT 547 The submission was in substance that the respondent was an insurer liable for all the consequences of laying the pipes and of charging them with water although all those consequences could not be avoided by the exercise of reasonable care. (at p270)

35. The argument of the appeal, however, included discussion of a quite disparate point, namely, whether the respondents were negligent subsequent to the bursting of the main and the emission of water. (at p270)

36. The trial judge's finding that the respondents were not in any respect negligent was supported by the majority of the Court. No question of onus of proof arose in the appeal. Evidence had been adduced and there was a positive finding which did not depend upon any failure of either party to provide evidence. Nor was the finding made in any uncertainty of mind so that the onus of proof had no play. Of course, in argument, when the trial judge's finding was under challenge, a submission was made that it was for the respondent to negative negligence. But the submission was answered by the positive finding of the absence of negligence. However, two justices, perhaps three, expressed the opinion that because the respondents were under obligation to charge the water mains with water, they were only liable in negligence and not in trespass or nuisance. Two justices expressed the further opinion that the onus of establishing negligence was upon the appellant. (at p271)

37. These views, though in my opinion but obiter, are of considerable weight. However, the Court did not have the advantage of considering the reasons of their Lordships in Northwestern Utilities Ltd. v. London Guarantee and Accident Co. Ltd. (1936) AC 108 decided some two years later. Also, the proposition that the plaintiff, damaged by an escape of water on to his land, must establish negligence, if a statute authorized the water to be brought by the defendant upon the land from which it escaped, was said to be drawn from Blyth v. Birmingham Waterworks Co. (1856) 11 Ex 781 ; 156 ER 1047 ; Green v. Chelsea Waterworks Co. (1894) 70 LT 547 and Price v. South Metropolitan Gas Co. (1895) 65 LJ QB 126, at p 127 (at p271)

38. Blyth v. Birmingham Waterworks Co. (1856) 11 Ex 781 ; 156 ER 1047 was decided in 1856 in a case where the plaintiff sued in negligence and failed for proof of it. Rylands v. Fletcher (1868) LR 3 HL 330 though perhaps not the actual source of the doctrine it illustrates, was not decided till 1868. (at p271)

39. I have already indicated what it seems to me was decided in Green v. Chelsea Waterworks Co. (1894) 70 LT 547 Certainly no question of onus of proof arose in that case. Price v. South Metropolitan Gas Co. (1895) 65 LJQB 126 was a case in which a gas company was sued in negligence for failure to detect or remedy an escape of gas from one of its mains which had cracked due to the removal of supporting soil by a person other than the gas company and to the pressure of traffic upon the superincumbent soil. It was said that the proof of negligence was on the plaintiff and that, because of the statutory authority in the gas company to lay the pipe, "'the wild beast' theory referred to in the well-known case of Fletcher v. Rylands (1866) LR 1 Ex 265 is inapplicable". The facts in that case had been fully explored and the cause of the cracking of the gas pipe and the resulting escape of gas had been evidenced. The reference to Rylands v. Fletcher (1868) LR 3 HL 330 by Lord Russell C.J., and the quotation I have just made, was in relation to an argument for the defendants that because of their statutory authority to lay the pipes and use them for the conveyance of gas they were "not insurers". Both the argument and the judicial comment upon it were in my respectful opinion accurate in this sense, that the absolute liability derived from a Rylands v. Fletcher situation does not apply to a person who has brought the deleterious substance upon the land in pursuance of a statutory authority to do so. The liability arising from such a situation in the case of a person or body statutorily authorized to bring the substance on the land is a liability only for those escapes which the exercise of reasonable skill and care could have avoided. But as I have indicated, it rests upon the defendant in such a case to establish that the escape was of that kind. However, the argument and the comment upon it, were each in my respectful opinion, beside the point in that case. The escape had been established to have been solely caused by acts of some persons other than the defendants so that in any case the defendants would have had a defence to a Rylands v. Fletcher claim. Secondly, such a claim does not seem to have been made, for the plaintiff sued in negligence. Thirdly, the negligence was suggested to exist in a failure to take steps to counteract the escape of gas caused by the act of another. The case was disposed of on the footing that there was evidence of negligence in that sense. Lord Russell in so deciding said (1895) 65 LJQB, at p 128:

"On the whole, therefore, I am of opinion that, looking at the character of the crack and the length of time that the gas was in all probability escaping, the escape ought to have come to the knowledge of the defendants' employees and have been reported. Moreover, from similar information, the defendants ought, in the first instance, to have known that the ground had been excavated in the neighbourhood of the gas main, and that the soil which had been disturbed underneath the cracked pipe had not been carefully replaced. The whole case for the Court being, was there or was there not evidence of negligence on the part of the defendants? I think there was such evidence, and that under the circumstances it would be impossible to say there was no evidence of negligence." (at p272)

40. Consequently, in my respectful opinion, the actual decision in Cox Bros. (Aust.) Ltd. v. Commissioner of Waterworks (1933) 50 CLR 108 can be accepted consistently with the views I have put, though some parts of the reasons which are, in my opinion, obiter only ought not to be followed. (at p272)

41. In Thompson v. Bankstown Corporation (1953) 87 CLR 619 ; 19 LGR (NSW) 1, a youth had received an electric shock when he attempted to climb an electric light pole in a public street because he came into contact with what had been an earthed wire but which at the time was unearthed and charged with electricity. Three members of the Court assumed that the plaintiff was bound to establish negligence in the carrying on of an otherwise authorized undertaking and decided the case for the plaintiff on the basis of a breach by the defendant of a high obligation of care in connexion with so dangerous a commodity as electricity at a high voltage. However, Kitto J. in agreeing with that result made the following observation in the course of his reasoning (1953) 87 CLR, at p 644 ; 19 LGR (NSW), at p 15:

"The respondent, but for the statutory authority which it possessed for the carrying on of its electricity undertaking, would have been liable to the appellant on the principle of Rylands v. Fletcher (1a) for any injury occasioned to him by an escape of electric current, even if the utmost care had been observed: Eastern and South African Telegraph Co. Ltd. v. Cape Town Tramways Companies Ltd.(1902) AC 381, at pp 391, 392 The statutory authority saves the respondent from liability on this strict basis, but it affords no protection from liability for an injury caused by negligence." (at p273)

42. I find myself in agreement with this method of stating the effect of a statutory authority in the case of a person defending himself in a Rylands v. Fletcher situation. The statute itself is in these circumstances a partial defence which becomes a complete defence on the negation of a lack of reasonable skill and care in the installation and maintenance of the authorized work. It was unnecessary in that case for his Honour to deal with the question of the onus of proof or of disproof of negligence ; and, in my opinion, textually the formula used by his Honour is quite consistent with and indeed, if anything, points towards that burden falling on the defendant. (at p273)

43. It will be observed that I have not found it necessary to advert to the difference said to result from a permissive authority given, and a mandatory obligation imposed, by statute. It seems to me that in either case the statute will be an answer if the authorized work is constructed and maintained with reasonable skill and care. It will be no more and no less an answer in either case. (at p273)

44. I have dealt only with the above reported decisions because they were the principal cases pressed upon us in argument by the parties. But an examination of a much greater number of cases does indicate a divergence of judicial opinion. However, the only case decided by a Court of final resort in which the precise point here raised is dealt with is Northwestern Utilities Ltd. v. London Guarantee and Accident Co.(1936) AC 108 (at p273)

45. I have expressed my own view of the principles to be applied in this case. I am of opinion that it accords with the advice of Lord Wright in Northwestern Utilities Ltd. v. London Guarantee and Accident Co. (1936) AC 108 No authority by which I am bound is to the contrary and many cases, with some of which I have dealt, though apparently to the contrary, are not actually so, in my opinion, when closely examined. I therefore conclude that the demurrer should be disallowed because in addition to the other reasons I have already stated, where the plaintiff alleges facts which prima facie describe a Rylands v. Fletcher (1868) LR 3 HL 330 situation, it rests on a defendant who sets up authority by statute as a defence, to assert either that the statute authorized the particular act which caused the mischief to the plaintiff, or that by no amount of skill and care could the escape be avoided, or that he executed and maintained with reasonable skill and care the work authorized by the statute, being the work which brought to the land the dangerous thing or substance whose escape caused the damage to the plaintiff. (at p274)

46. Reasonable skill and care in the context in which I have been using the expression requires the exercise of due skill and care having regard to all that is known or may be ascertained by inquiry of available methods of construction, supervision and inspection bearing upon keeping the dangerous thing or substance within the land to which it has been brought. The standard of care is necessarily high, partly because of the limited or qualified nature of the statutory authority and partly because of the capacity of the thing or substance to do harm. (at p274)

47. There remains only the question whether the personal injuries sustained by the plaintiff by the escape of the gas to the land occupied by her can be included in the items of damage for which the defendant is responsible. Nuisance strictly so called is an interference with the enjoyment of rights over land. Because of its nature, it has been said that personal injuries caused by that interference should not be recoverable as part of the damages awarded for the nuisance. But this narrow, if perhaps logical, conclusion has not been universally accepted. Further nuisance has not been universally confined to its narrower historical significance. I cannot discover any reason why such injuries should not be included in the damages awarded in a case based on Rylands v. Fletcher (2). I would adopt if I might the language of a distinguished contributor to the Modern Law Review, vol. 10, p. 400, when he said:

"The suggestion that I can recover for an explosion wrecking my conservatory or a horse trespassing on my rose bed, but not for an explosion blowing me out of my deck chair in my own garden, or a horse treading on my face as I sleep on my lawn, has little to commend it."

The suggestion that the damages for the escape to the land of another of a dangerous thing or substance is so limited, in my opinion, confuses liability with consequence. It rests, so far as judicial pronouncement is concerned, solely upon Lord Macmillan's judgment in Read v. J. Lyons &Co. Ltd. (1947) AC 156, at p 173 . That doctrine has not been adopted by any Court as the basis of decision in any subsequently reported case of which I am aware. Also, there are reported cases where damages for personal injuries have been included in awards of damages arising out of a Rylands v. Fletcher situation : see Hale v. Jennings Bros. (1938) 1 All ER 579 . In my opinion, the doctrine ought not to be followed. Personal injuries sustained by reason of the escape to the plaintiff's land of a dangerous thing or substance brought to land by a defendant are, in my opinion, to be included in the damages caused by such escape. (at p275)

48. In my opinion, the appeal should be dismissed. (at p275)

MCTIERNAN J. It is to be observed that the escape of gas which is pleaded as the ground of liability in this count is not charged as having been negligent or intentional. (at p275)

2. Taking the matters pleaded in the count, the damage suffered by the plaintiff (respondent) would appear to have arisen from the lawful exercise of statutory powers of the company, and not otherwise. The company has a duty under the statute, when notified of an escape of gas from any pipe laid under a street pursuant to the statute, immediately to take effective measures to stop and prevent the gas from escaping. The count is not, of course, based upon any alleged breach of this duty. The imposition of the duty, however, is important. In my judgment its inclusion in the statute affords strong presumptive evidence that the legislature must have had in view that it would be an ordinary incident of carrying on this gas undertaking that gas would escape, from time to time, out of a pipe or pipes used in conveying gas under appropriate pressure to consumers: cf. Dunne v. North Western Gas Board (1964) 2 QB, at p 833 . In order to uphold this count it would, I think, be necessary to propose as a proper foundation for it, that the legislature intended by the statute, that the company would under it be in the position of being required to keep the gas in the pipes at its peril in the sense of Rylands v. Fletcher (1868) LR 3 HL 330 (at p275)

3. The power to supply gas was actually given to the company by s. 11 of the Act of 1837 and s. 1 of the Act of 1858. By s. 23 of the Gas and Electricity Act, 1935 (N.S.W.), the company is obliged to supply gas at a defined pressure and is also obliged to supply gas to consumers, subject to the conditions which s. 28 prescribes. In my opinion it can be properly inferred, and should be inferred, from the legislative authorization of the use of a system of pipes to convey gas from its gasometers to consumers pursuant to s. 48 of the Act of 1837 and s. 3 of the Act of 1858, that the mere fact of the escape of gas from a pipe would not constitute a legal wrong. (at p276)

4. It follows that on the facts pleaded in the second count, having regard to the statutory powers and duties of the company, the alleged escape of gas does not take the company within the rule in Rylands v. Fletcher (1). The count was admittedly pleaded in reliance on this rule. (at p276)

5. The allegations in the count are not sufficient to found a claim in nuisance, if the view that it was in the mind of the legislature that gas would escape in the lawful exercise by the company of their franchise is correct, for, in that view, the escape of gas was not unlawful : Winfield on Tort, 8th ed. (1967), at pp. 400, 403, 406. (at p276)

6. The first count of the declaration is one in negligence. It is not, of course, demurred to. The appeal relates only to the second count. I would allow the appeal. (at p276)

MENZIES J. This is an appeal from the decision of the Court of Appeal of the Supreme Court of New South Wales (Wallace P. and Jacobs J., Walsh J. dissenting) (2) overruling the defendant's demurrer to the second count of the plaintiff's statement of claim. The appellant, who was the defendant, was sued as the nominal defendant for the Australian Gas Light Co. and I shall refer to that company as "the company". The respondent I shall refer to as "the plaintiff". (at p276)

2. The material part of the second count was as follows:

". . . at all material times the Australian Gas Light Co. was enabled by statute to supply and distribute a dangerous thing, namely gas a substance liable to cause mischief if it escaped as the defendant well knew and to lay pipes under and along public streets to contain and carry such gas and pursuant to such power the said Australian Gas Light Co. did lay pipes under certain public streets and did use the same to contain and carry gas as aforesaid, and the plaintiff was the occupier of certain premises adjacent to a certain public street wherein certain pipes as aforesaid and for the purpose aforesaid had been laid and thereupon gas escaped from a pipe so laid and used as aforesaid and entered the said premises of the plaintiff whereby the plaintiff suffered the damage more particularly set forth in the first count hereof." (at p277)

3. The count was no doubt pleaded as it was to attract the rule in Rylands v. Fletcher (1868) LR 3 HL 330 . Indeed, counsel for the plaintiff acknowledged this. (at p277)

4. The demurrer was as follows :

". . . the defendant as to the second count of the declaration says that it is bad in substance. It is intended to argue at the hearing of the demurrer to the second count of the declaration the following matters of law: - 1. That the 'rule in Rylands v. Fletcher' does not entitle a plaintiff to sue at law for personal bodily injuries. 2. That the defendant is acting pursuant to statutory authority. The defendant is required by the Australian Gas-Light Company's Acts, 1837 (as amended) and the Gas and Electricity Act, 1935-1965, to supply and distribute gas. The rule in Rylands v. Fletcher does not apply so as to impose strict liability upon the defendant who is conducting an undertaking and distributing gas pursuant to mandatory legislative authorization." (at p277)

."

Kitto J. said(1951) 84 CLR, at pp 600, 601:

"The statutory authority which the defendant had for using a locomotive engine at the time and place in question absolves him from liability under the rule in Rylands v. Fletcher(1868) LR 3 HL 330, for the escape of fire from his engine. But the Act must be construed as authorizing the use of such engines in a proper manner only, and the plaintiffs are therefore entitled to succeed if the injury suffered was caused by a failure on the part of the defendant or his agents 'to use reasonable care to do no unnecessary damage' by the use of the engine : East Fremantle Corporation v. Annois (1902) AC 213, at p 218 If the injury to the deceased's property was caused, not by negligence, but by the ordinary and normal use of the railway, the defendant is under no liability : Canadian Pacific Railway v. Roy(1902) AC 220 The onus of proving negligence rests upon the plaintiffs : Parker v. London and N.E. Railway Co. (1945) 175 LT 137;

Sellwood v. London M. &S. Railway Co.

(1946) 175 LT 366; cf Cox Bros (Aust.) Ltd. v. Commissioner of Waterworks (1933) 50 CLR, at pp 119, 121 Both the onus of proof and the nature of the defendant's obligation of due care were the subject of some observations by Lord Herschell in the Scottish case of Port Glasgow and Newark Sailcolth Co. v. Caledonian Railway Co. (1893) 20 Rettie (HL) 35, at p 36 The relevant passage was quoted by Isaacs J. in Fullarton v. North Melbourne Electric Tramway and Lighting Co. Ltd. (1916) 21 CLR, at p 201, and its importance warrants its repetition. Lord Herschell said : 'It is now well-settled law that in order to establish a case of liability against a railway company under such circumstances it is essential for the pursuers to establish negligence. The railway having the statutory power of running along the line with locomotive engines, which in the course of their running are apt to discharge sparks, no liability rests upon the company merely because of sparks emitted having set fire to adjoining property. But the defenders although possessing this statutory power, are undoubtedly bound to exercise it reasonably and properly, and the test whether they exercise this power reasonably and properly appears to me to be this : They are aware that locomotive engines running along the line are apt to emit sparks. Knowing this they are bound to use the best practicable means according to the then state of knowledge to avoid the emission of sparks which may be dangerous to adjoining property ; and if they, knowing that the engines are thus liable to discharge sparks, do not adopt that reasonable precaution they are guilty of negligence, and cannot defend themselves by relying upon their statutory power. About the law, as I have expressed it, I do not think there is any controversy'." (at p333)

13. The last case in this Court to which I will refer is Thompson v. Bankstown Municipal Council (1953) 87 CLR 619; 19 LGR (NSW) 1 In that case the plaintiff was injured when he came into contact with an earth-wire charged with electricity from the high tension wires of an electric power system operated by the defendant Council. In their joint judgment (1953) 87 CLR, at p 625 ; 19 LGR (NSW), at p 4 , Dixon C.J. and Williams J. expressed some doubt whether the statutory powers with which the defendant was armed contained sufficient express authority to enable it to carry high tension wires on poles along a highway. They thought, however, that such an authority might perhaps be implied by the statute. Accordingly they said that they would proceed

". . . on the basis that the plaintiff, in order to make out a cause of action, was under the necessity of establishing negligence in the carrying on of an otherwise authorized undertaking."

Their Honours went on (1953) 87 CLR, at p 629 ; 19 LGR (NSW), at pp 6, 7:

"The generation, or receipt, and transmission of electrical energy of a lethal voltage imposed the duty upon the defendant. By statute, as we assume, the defendant was authorized to bring it upon the highway. But a duty of care rested upon the defendant of a high degree ; a duty of care measured by a high standard both because of the lethal nature of the agency and because of the almost infinite variety of mischance by which attempts to insulate it and prevent its escape may be defeated."

And(1953) 87 CLR, at p 630 ; 19 LGR (NSW), at p 7:

"It is the case of an injury through discharge of electricity made possible through the defendant's neglect of due precautions and allowing his system to be in an improper and dangerous condition. That is the basis of the defendant's liability."

Kitto J. said (1953) 87 CLR, at pp 644, 645 ; 19 LGR (NSW), at pp 15, 16:

"The respondent, but for the statutory authority which it possessed for the carrying on of its electricity undertaking, would have been liable to the appellant on the principle of Rylands v. Fletcher (1868) LR 3 HL 330 , for any injury occasioned to him by an escape of electric current, even if the utmost care had been observed : Eastern and South African Telegraph Co. Ltd. v. Cape Town Tramways Companies Ltd. (1902) AC 381, at pp 391, 392 The statutory authority saves the respondent from liability on this strict basis, but it affords no protection from liability for an injury caused by negligence : Great Central Railway Co. v. Hewlett (1916) 2 AC 511, at p 519; East Suffolk Rivers Catchment Board v. Kent (1941) AC 74, at p 85; Fullarton v. North Melbourne Electric Tramway and Lighting Co. Ltd. (1916) 21 CLR 181; Cox Bros. (Aust.) Ltd. v. Commissioner of Waterworks (1933) 50 CLR 108, at pp 119, 121" (at p334)

14. I have read the many cases to which references are made in the passages I have set out above. If I may say so with respect, I think they plainly support the propositions for which they were cited in the judgments and I see no point in quoting from them. (at p334)

15. There are two cases, however, which are not included in those citations and upon which counsel for the plaintiff in the present case placed reliance. The first is Manchester Corporation v. Farnworth (1930) AC 171 . There the defendant corporation had been authorized by statute to erect and use a station for generating electricity on certain land. Poisonous fumes were emitted from the chimneys of the station and caused damage to the plaintiff's land. The plaintiff's claim was in nuisance and the defendant set up (inter alia) - and I quote from the judgment of Viscount Dunedin(1930) AC, at p 179,

". . . that the generating station is a thing specially authorized by Act of Parliament, that the emission of deleterious fumes is a necessity of the situation, and that consequently, they are not liable for any nuisance created thereby." (at p334)

16. As I read the judgments of their Lordships, they took the view - and with respect I agree - that it was for the defendant to show that the creation of the nuisance was an inevitable result of doing the authorized work, namely building and running the generating station ; that in order to establish inevitability it was necessary for it to prove that in planning the station and using it, it had taken all reasonable precautions to avoid creating a nuisance but that it had failed to establish that this was the fact. It is a decision on a case in which the defendant, sued in nuisance, set up that the creation of the nuisance was an inevitable result of carrying out its statutory powers and, to my mind, it throws no light on the questions which the parties here have raised, nor does it - in my opinion - throw any doubt upon the correctness of the statements which I have already quoted from the judgments of this Court. The second case is Northwestern Utilities Ltd. v. London Guarantee and Accident Co. Ltd. (1936) AC 108 . There a building in Edmonton, Alberta, had been destroyed by fire caused by the escape of gas from a fractured joint in a gas main belonging to the appellant, a public utility company which supplied gas to consumers in the city under a franchise from the city authority. The break in the main was caused by the construction by the city authority of a sewer underneath the gas main. The respondents claimed damages from the appellant alleging (inter alia) negligence in constructing and maintaining the gas main and alleging also, during the trial, an alternative cause of action, namely that the appellant knew or should have known that the city authority was constructing its sewer underneath the gas main but had failed to take proper precautions to ensure that the work being done by the city authority did not cause gas to escape from the gas main. In the Appellate Division of the Alberta Supreme Court (1935) 1 DLR 135 , Harvey C.J.A., with whom Clarke J.A. and McGillivray J.A. agreed, was of opinion that negligence on the part of the appellant was established in that it had failed to "inspect city operations which might affect the security of its pipes and to take such steps as might be necessary to protect them". In these circumstances it appeared to him, and with respect I agree, that "the doctrine of Rylands v. Fletcher does not require to be invoked to attach liability to the defendant". On the findings of fact it was liable in negligence. On appeal to the Privy Council, their Lordships, Lord Hailsham L.C. and Lords Blanesburgh and Wright, agreed with the conclusions of the Alberta Appellate Court that - and I quote from the headnote (1936) AC, at p 109 -

". . . as the appellants were carrying gas at high pressure which was very dangerous, if it should escape, they owed a duty to the owners of the hotel, to exercise reasonable care and skill that the owners should not be damaged. The degree of care which that duty involved must be proportioned to the degree of risk involved. The City might at any time be conducting operations in connection with their sewers in the vicinity of the appellants' mains, and it was the duty of the appellants to watch such operations. The operations in question were, from their public nature and conspicuous character and from the time during which they went on, such that a failure by the appellants to know of them was plainly not consistent with due care on their part in the interests of members of the public likely to be affected."

Having regard to the acceptance of the finding that the appellants had been negligent, I have with all respect found it difficult to understand why, in delivering the judgment of the Judicial Committee, Lord Wright (1936) AC, at pp 118, 119 should have thought it necessary to discuss, as he did at some length, the rule in Rylands v. Fletcher (1a) and its possible application to a case such as the one then under appeal. In the course of that discussion his Lordship said that (1936) AC, at p 119:

"This form of liability (that is liability under the doctrine of Rylands v. Fletcher) is in many ways analogous to a liability for nuisance, though nuisance is not only different in its historical origin but in its legal character and many of its incidents and applications. But the two causes of action often overlap, and in respect of each of these causes of action the rule of strict liability has been modified by admitting as a defence that what was being done was properly done in pursuance of statutory powers, and the mischief that has happened has not been brought about by any negligence on the part of the undertakers."

He went on, however(1936) AC, at p 126:

"The question in these proceedings is between the respondents, as or representing property owners, and the appellants as undertakers, who are carrying an element, gas, in their mains close to the owners' premises ; the gas is carried at high pressure, is very dangerous if it escapes and calculated if it does escape to damage, as it did, the owners' property. The appellants accordingly owe a duty to the respondents, even though the case falls outside the rule of strict or absolute liability, to exercise all care and skill that these owners should not be damaged. The degree of care which that duty involves must be proportioned to the degree of risk involved if the duty should not be fulfilled."

And(1936) AC, at pp 127-128:

"In ordinary course, the city might at any time be conducting operations in connexion with their sewers in the vicinity of the appellants' mains, and it was the appellants' duty to watch such operations. This particular operation was, as both courts have held, from its public nature and conspicuous character, and from the time during which it went on, such that a failure by the appellants to know of it is plainly not consistent with due care on their part in the interests of members of the public likely to be affected. . . . In truth, the gravamen of the charge against the appellants in this matter is that though they had the tremendous responsibility of carrying this highly inflammable gas under the streets of a city, they did nothing at all in all the facts of this case. If they did not know of the city works, their system of inspection must have been very deficient. If they did know they should have been on their guard : they might have ascertained what work was being done and carefully investigated the position, or they might have examined the pipes likely to be affected so as to satisfy themselves that the bed on which they lay was not being disturbed. Their duty to the respondents was at the lowest to be on the watch and to be vigilant : they do not even pretend to have done as much as that. In fact, so far as appears, they gave no thought to the matter. They left it all to chance."

What that case actually decided was that the appellant owed a duty of care to the respondents and that it had breached that duty and was therefore liable in negligence. It was not necessary for the decision to consider what would have been the position of the appellant had the charge of negligence against it failed and whether, if all that had been shown was that the gas had escaped from the main and caused the fire, the onus would have been on the appellant to show the escape of gas had occurred notwithstanding the exercise on its part of all due care. (at p337)

17. In these circumstances I can find no good reason for departing from the general principles which have been stated and applied by this Court in the cases to which I have earlier referred and, applying them, I am of opinion that the second count of the declaration is demurrable. It is unnecessary therefore to decide a further submission made on behalf of the defendant that damages for personal injuries cannot be recovered in a case to which the rule in Rylands v. Fletcher (1868) LR 3 HL 330 applies. (at p337)

18. I would allow the appeal. (at p337)

Orders

Appeal allowed with costs. Order of the Supreme Court set aside and in lieu thereof order that the demurrer be allowed with costs.