Municipal Tramways Trust v Stephens - [1912] HCA 46

MUNICIPAL TRAMWAYS TRUST

DEFENDANTS, STEPHENS

ON APPEAL FROM THE SUPREME COURT OF Negligence-Maintenance and repair of highway-Breach of Statutory duty-

Liability for non-feasance-Municipal Tramways Trust Act 1906 (S.A.) (No. 913), sec. 54.

By sec. 54 of the Municipal Tramways Trust Act 1906 (S.A.) it is provided that the Municipal Tramways Trust "shall, at its own expense at all times, keep in good condition and repair, with such materials and in such manner as ADELAIDE,

the road authority shall direct, and to its satisfaction, so much of any road June 4, 5, 6.

whereon any tramway belonging to the Trust is laid as lies between the rails MELBOURNE,

and so much of the road as extends 18 inches beyond the rails on each side of such tramway."

Held, by Griffith C.J. and Barton J. (Isaacs J. dissenting), that the section imposes a positive duty on the Trust to keep in good condition and repair so much of the roadway as is mentioned in the section, notwithstanding that no direction has been given by the road authority to do the work or as to the materials with or the manner in which the work was to be done, and that an action by a member of the public lies against the Trust for injuries caused by a breach of that positive duty.

Held, also, by the Court (Isaacs J. doubting whether there is any liability for non-feasance), that the Trust was liable for a non-repair amounting to a breach of the statutory duty.

Decision of the Supreme Court of South Australia: Municipal Tramways Trust v. Stephens, (1911) S.A.L.R., 40, affirmed.

APPEAL from the Supreme Court of South Australia.

15 CLR 105

An action was brought in the Local Court of Adelaide, South H. C. OF Australia, by Arthur Stephens against the Municipal Tramways Trust claiming damages for injuries received by him in conse- quence of the alleged wrongful omission and neglect of the defendants to keep in good condition and repair SO much of a road on which a tramway of the defendants was laid as lay between the rails of the tramway and SO much of the road as extended 18 inches beyond the rails on each side of the tramway.

The action was heard before Way C.J., and a jury and the jury found a verdict for the plaintiff. An order nisi obtained by the defendants for a new trial was discharged by the Full Court: Municipal Tramways Trust v. Stephens 1.

From this decision the defendants now appealed to the High Court.

The facts are sufficiently stated in the judgments hereunder. O'Halloran and Cleland, for the appellants. The appellants are not liable for non-feasance within the principle laid down in Russell v. The Men of Devon (2). They are a public corporation representing public interests or they are agents of the inhabitants charged in law with the duty of repairing a portion of the high- way. Though they are not an independent road authority they…

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: [1912] HCA 46
Decision Date: 21 June 1912

CaseChat Overview and Summary

The Municipal Tramways Trust appealed to the High Court of Australia from a decision of the Supreme Court of South Australia. The appeal concerned an action brought by Arthur Stephens, who claimed damages for injuries sustained due to the Trust's alleged failure to maintain a section of road where its tramway was laid. Specifically, the plaintiff alleged that the road between and adjacent to the tram rails was not kept in good condition and repair, causing a tram rail to project dangerously.

The central legal issues before the High Court were whether Section 54 of the Municipal Tramways Trust Act 1906 imposed a positive duty on the Trust to keep the specified portion of the road in good condition and repair, irrespective of directions from the road authority, and whether a breach of this statutory duty could give rise to a cause of action for negligence by a member of the public. The Court also considered whether the Trust could rely on the defence of non-feasance, a defence generally available to highway authorities.

Griffith C.J. and Barton J., forming the majority, held that Section 54 imposed a positive and continuing duty on the Trust to maintain the specified road sections at its own expense. They reasoned that the words "at all times, keep in good condition and repair" established a primary obligation, and the subsequent phrase "with such materials and in such manner as the road authority shall direct, and to its satisfaction" served to qualify the method of performance rather than negate the existence of the duty itself. The majority found that this duty was owed to the public, and a breach resulting in injury gave rise to a right of action. They also concluded that the Trust, being a trading corporation operating for its own benefit, could not avail itself of the defence of non-feasance applicable to public highway authorities. Isaacs J., dissenting, expressed doubt as to whether any liability for non-feasance existed.

The High Court affirmed the decision of the Supreme Court of South Australia, dismissing the appeal. The Court found that the Trust was liable for the non-repair which constituted a breach of its statutory duty.

Orders