Cartwright v McLaine & Long Pty Ltd

HIGH COURT OF AUSTRALIA

Gibbs A.C.J., Stephen, Jacobs, Murphy and Aickin JJ.

CARTWRIGHT v. McLAINE &LONG PTY. LTD.

(1979) 143 CLR 549

5 April 1979

Nuisance

Nuisance—Land adjoining highway—Pedestrian injured by slipping on oil flowing on the footpath from beneath pile of rubbish on disused service station site—Occupier aware of condition of site but not of existence of oil—Whether liable.

Decisions

1979, April 5.
The following written judgments were delivered:-
GIBBS A.C.J. On 30th May 1968, at about 9 p.m., the appellant was walking along Darlinghurst Road in the direction of Kings Cross. Unexpectedly he slipped and fell. He had failed to see that the footpath was covered with oil - it was that which had caused him to slip. As a result of his fall he sustained personal injuries and in March 1973 - about five years later - he began proceedings in the District Court to recover damages from the respondents. Judgment was given for the respondents and an appeal by the appellant to the Court of Appeal was unsuccessful. He now appeals to us by special leave. (at p551)

2. The oil had flowed on to the footpath from land which I shall for convenience describe as No. 287 Darlinghurst Road. On the portion of that land which adjoined Darlinghurst Road there was a service station, but it had been unused for at least a year and was in May 1968 derelict. On the rear portion of the land, behind a retaining wall, and facing another street, was a terrace of houses which were in process of demolition. The only evidence as to the source of the oil and the nature of its flow was given by a police officer, Inspector Bourke, who went to the scene on the night of the accident. He found that the footpath was covered by an oil slick about 20 ft long and extending over the whole width of the footpath. He described the oil as motor oil, and said that it made the footpath very slippery. The oil was flowing from under a pile of rubbish which stood near the retaining wall. The land sloped down in the direction of the road, and the oil flowed on to the footpath, where it spread out to form the slick, and then into the gutter. The pile of rubbish from which it flowed was about 21/2 to 3 ft high and covered an area of about 3 ft by 6 ft. It included pieces of corrugated iron, brickbats and piping and was interlocked so that Inspector Bourke could not move it. For that reason he could not see what was underneath it. However he said: "It was not feasible to think that the oil was coming from the container in the rubbish because it would not be big enough to hold it, so that it must have been coming from somewhere under the rubbish." By "the container" was no doubt meant "a container", for there was no evidence that there was a…