Fullarton v North Melbourne Electric Tramway & Lighting Co Ltd

The appellant, an infant suing by her next friend, brought an action in the County Court of Victoria against the respondent company, North Melbourne Electric Tramways and Lighting Co. Ltd., seeking damages for physical injuries sustained from contact with an uninsulated live wire. The particulars of demand alleged negligence on the part of the company in the installation, maintenance, and insulation of its tramway system, specifically concerning a post and electric wire which caused a current of electricity to pass through the appellant. The company pleaded denial of negligence and contributory negligence.

The legal issues before the court were whether the company was liable for the appellant's injuries irrespective of negligence, and if so, whether this claim was open on the pleadings as originally framed. Specifically, the court had to determine if the company's statutory authority to construct and operate an electric tramway excused it from liability for injuries caused by the escape of electricity from defective or uninsulated apparatus, or if such liability arose independently of negligence. The court also considered whether the County Court Judge had erred in refusing to direct the jury that a verdict for the plaintiff could be found if the injuries were caused by an electric discharge, regardless of negligence.

The High Court, by a majority, held that the point of liability without negligence was open on the original plaint, and that the company was liable unless the escape of electricity was a necessary consequence of the exercise of its statutory powers. The court reasoned that statutory authority does not extend to causing injury unless it is the inevitable result of carrying out the Legislature's directions, and the onus of proving such necessity lies with the undertaker. The court found that the company had not demonstrated that the uninsulated and unprotected condition of the wire was a necessary consequence of its statutory authority, and therefore, a new trial should have been granted.

The appeal was allowed, and the decision of the Supreme Court of Victoria was reversed. The High Court ordered a new trial of the action, allowing the appellant to pursue the claim for damages arising from the escape of electricity, irrespective of negligence, provided she could establish that such escape was not a necessary consequence of the company's authorised operations.