Burrum Shire v Richardson - [1939] HCA 30

SHIRE OF BURRUM RICHARDSON

SHIRE OF BURRUM GEHRMANN

ON APPEAL FROM THE SUPREME COURT OF

QUEENSLAND. Negligence-Electrocution in public bathing enclosure on foreshore within area of

local authority-Enclosure constructed by residents of district-Control and management--Duty of local authority to members of public using bathing enclosure BRISBANE,

-Trap or concealed danger-Invitees or licensees-Local Authorities Act of 1902 (Q.) (2 Edw. VII. No. 19), secs. 62, 69-Harbour Boards Acts 1892 to SYDNEY,

1928 (Q.) (56 Vict. No. 26-19 Geo. v. No. 22), secs. 66, 67-Navigation Acts Aug. 23.

1876 to 1930 (Q.) (41 Vict. No. 3-21 Geo. v. No. 21), sec. 147-Land Act 1897 (Q.) (61 Vict. No. 25), secs. 19, 190, 191.

Actions were brought in the Supreme Court of Queensland under the Common Law Practice Act of 1867 (Q.) (Lord Campbell's Act) by parents against a local authority in respect of the deaths of their sons, who had been electrocuted whilst using a bathing enclosure on the foreshore of a reserve under the control of the local authority. In 1922 at the request of the residents of the district the shire clerk asked for and obtained permission from the Harbour Master at Maryborough for the erection of the bathing enclosure. The enclosure was built and maintained entirely by various voluntary associations. The council from time to time subscribed small sums of money to assist the voluntary

62 CLR 215

associations which for the time being had accepted the responsibility of either erecting or maintaining the enclosure. In 1930 electric light was installed by the local electric authority on the application of the voluntary association then maintaining the enclosure. The cost of installation and accounts for current supplied were wholly met by voluntary associations. In 1935 maintenance repairs became necessary, and the council made available relief workers, paid by moneys supplied to the council under the Income (Unemployment Relief) Tax Act of 1930. The work was supervised by an officer of the local progress association. The repairs effected by the relief workers brought the diving board closer to the electric wires than formerly, and to a point near the maximum sag of the wires. As a result of the fact that an electric-light wire became energized, a danger existed, which was the cause of the deaths of the two boys. The jury found, inter alia, that the local authority had control of the enclosure, permitted its construction, and ought to have known of the existence of a trap or concealed danger, and failed to take reasonable care see that the enclosure was safe. On these findings the trial judge entered judgment for the plaintiffs against the local authority. On appeal the Full Court of Queensland affirmed the judgment.

On appeal to the High Court, Latham C.J. and McTiernan J. were of opinion that the appeal should be dismissed: Rich and Starke JJ. were of opinion that the appeal should be allowed.

The court being equally divided, the decision of the Supreme Court of Queens- land (Full Court): Richardson…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1939] HCA 30
Decision Date: 23 August 1939

CaseChat Overview and Summary

In *Shire of Burrum v Richardson* and *Shire of Burrum v Gehrmann*, the High Court of Australia considered appeals from the Supreme Court of Queensland concerning the liability of a local authority for the electrocution deaths of two boys in a public bathing enclosure. The actions were brought by the parents of the deceased boys under Lord Campbell's Act, alleging negligence on the part of the Shire of Burrum. The bathing enclosure, situated on a public reserve under the Shire's control, was constructed and maintained by voluntary associations, though the Shire had permitted its erection and provided some financial assistance and relief workers for repairs.

The central legal issues before the High Court were whether the Shire of Burrum had sufficient control and management of the bathing enclosure and its electrical equipment to render it liable for the deaths, and if so, what duty of care was owed to the users of the enclosure. Specifically, the court had to determine if the Shire's actions, including its provision of relief workers for repairs that allegedly created a concealed danger, established a legal responsibility for the electrocutions. The jury had found that the Shire had control of the enclosure, permitted its construction, allowed electrical equipment to be provided, and ought to have known of a concealed danger which caused the deaths, failing to take reasonable care to ensure its safety.

The High Court was equally divided on the outcome. Latham C.J. and McTiernan J. were of the opinion that the Shire was liable. They reasoned that the Shire exercised actual control and management over the reserve and, by extension, the bathing enclosure and its electrical installation. The provision of relief workers for repairs, who were employees of the Shire, meant that the negligent work performed was attributable to the Shire. They concluded that the Shire had knowledge of a concealed danger, which was not obvious to users, and therefore owed a duty of care to the boys, at least to the standard owed to licensees, which had been breached. Rich and Starke JJ., however, were of the opinion that the Shire should not be held liable. They argued that while the Shire had control of the reserve, its involvement with the bathing enclosure, which was primarily constructed and maintained by voluntary bodies, did not extend to assuming responsibility for its safety, particularly concerning the electrical equipment installed by others.

As the High Court was equally divided, the decision of the Supreme Court of Queensland was affirmed. This meant that the judgments in favour of the plaintiffs, awarding damages for the deaths of their sons, stood.

Orders