Cox Bros (Australia) Ltd v Commissioner of Waterworks - [1933] HCA 50

50 CLR 108

COX BROTHERS (AUSTRALIA) LIMITED

AND ANOTHER

THE COMMISSIONER OF WATERWORKS

ON APPEAL FROM THE SUPREME COURT OF

SOUTH AUSTRALIA.

OF A. Water-Negligence-Nuisance-Escape from burst water-main-Main erected under

statutory authority-Damage to neighbouring property-Sufficiency of precau- tions to ascertain and remedy leakages.

The respondent, under statutory authority, laid and maintained water mains in the streets in Adelaide. At 11.15 p.m. on the night in question one of the water mains burst. At 12.30 a.m. it became dangerous to the appellants property, and it was reported to the respondent's department a few minutes afterwards. The respondent's officer, without negligence as the trial Judge found, did not commence to turn off the water until 1 a.m., and the water was not turned off until 1.10 a.m. The respondent's department relied upon the police and members of the public to report leaks and maintained no inspection for the purpose of discovering them. The water which escaped damaged the appellants' premises between 12.30 and 1.10 a.m. In an action by the appellants against the respondent claiming damages for the injury caused by the escape of water.

Held, by Rich, Starke, Dixon and McTiernan JJ., that the respondent was not liable for the damage done without proof of negligence.

Held, also, by Rich, Dixon and McTiernan JJ. (Starke and Evatt JJ. dis- senting), that the evidence did not establish that the respondent had omitted any reasonable precaution in the management and maintenance of the undertaking which might have averted the damage altogether; and by Rich, Dixon and

50 CLR 109

McTiernan JJ. (Starke J. dissenting), that the evidence did not establish that the respondent was negligent in failing to reduce the column of water at an earlier time and so avert a substantial part of the total damage.

Decision of the Supreme Court of South Australia (Piper J.) affirmed.

APPEAL from the Supreme Court of South Australia.

The appellants, Cox Brothers (Australia) Ltd. and Ruthven Frederick Ruthven Smith brought an action in the Supreme Court of South Australia against the Commissioner of Waterworks claiming damages for wrongfully discharging water upon the plaintiff's land and premises situated in Pulteney Street, Adelaide, and for nuisance occasioned by the escape of water.

By its statement of claim the plaintiff alleged in substance :- 1. The plaintiff, Cox Brothers (Australia) Ltd. was the lessee and occupier of portion of the premises known as Ruthven Mansions situated in and abutting on Pulteney Street and there carried on its business of a departmental store. 2. The plaintiff, Smith, was the owner of the premises known as Ruthven Mansions. 3. The defendant placed along Pulteney Street a water main and pipes and thereafter failed and neglected to inspect or test the condition thereof and allowed one or more such water pipes to become in such a worn out and defective condition that at about midnight on 15th October 1931 a large volume of water escaped therefrom and was forced up through the roadway and into the premises SO occupied and owned…

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.

Continue reading Cox Bros (Australia) Ltd v Commissioner of Waterworks

Details

AGLC: Cox Bros (Australia) Ltd v Commissioner of Waterworks [1933] HCA 50
Case: [1933] HCA 50
Decision Date: 6 November 1933

CaseChat Overview and Summary

Cox Brothers (Australia) Ltd and another (the appellants) brought an action against the Commissioner of Waterworks (the respondent) in the Supreme Court of South Australia, claiming damages for nuisance and trespass caused by the escape of water from a burst water main. The appellants alleged that the respondent had failed to properly inspect and maintain the water pipes, and that there was no adequate system for detecting or remedying leaks, leading to significant damage to their premises.

The central legal issues before the High Court were whether the respondent was liable for the damage caused by the escape of water without proof of negligence, and if negligence was required, whether the evidence established that the respondent had been negligent in the management and maintenance of the waterworks undertaking. Specifically, the court had to determine if the respondent had omitted any reasonable precautions that could have averted the damage altogether, or if they were negligent in failing to reduce the water pressure or shut off the water supply sooner after the leak was discovered.

A majority of the High Court, comprising Rich, Starke, Dixon, and McTiernan JJ., held that the respondent was not liable for the damage unless negligence was proven. The court reasoned that the respondent, acting under statutory authority, was not an insurer against damage caused by the escape of water. The majority further found, with Starke and Evatt JJ. dissenting on some points, that the evidence did not establish negligence on the part of the respondent. They concluded that the respondent had taken reasonable precautions in the management and maintenance of the undertaking and that the evidence did not demonstrate a failure to act with reasonable care in reducing the water flow or pressure to avert the damage. The court affirmed the decision of the Supreme Court of South Australia.

Orders