Nielsen v Brisbane Tramways Co Ltd - [1912] HCA 21

THE BRISBANE TRAMWAYS CO. LIMITED RESPONDENTS.

DEFENDANTS.

ON APPEAL FROM THE SUPREME COURT OF

QUEENSLAND. Corporation-Nuisance-Non-repair of road-Negligence-Tramways - Acts 1882-

1890, Qd. (46 Vict. No. 10, 54 Vict. No. 16), secs. 50, 8-Suspension of pro- visions by Governor in Council. BRISBANE, May 7, 8, 9.

By sec. 50 of the Queensland Tramways Acts 1882-1890 the respondent Company were bound to maintain and keep in good repair (subject to the direction of the Municipal Council) such portion of the roads on which their rails were laid as lay between the rails and for a space of eighteen inches on either side. Power was, however, given to the Governor in Council by sec. 78 to suspend the operation of all or any of the provisions of certain sections, among which was sec. 50. By a Proclamation dated 4th June 1902, the pro- visions of sec. 50 were suspended-

14 CLR 355

OF AUSTRALIA Held, that a person injured by reason of one of the rails of the respondent Company projecting above the surface of the roadway had no right of action against the Company.

Decision of the Supreme Court of Queensland affirmed.

APPEAL from the Supreme Court of Queensland.

The appellant was riding on a bicycle along a street on which the respondent Company's tram lines were laid, and owing to one of the rails projecting above the surface of the roadway he was thrown off and suffered injury. He brought an action in the District Court claiming £200 damages and obtained a verdict for £147 2s. 6d. On appeal to the Full Court this judgment was reversed by a majority of the Court, on the ground that the sus- pension of sec. 50 of the Tramways Act 1882 relieved the Com- pany from liability for accidents arising from the existence of a nuisance caused by the projection of the rails of their tramway above the surface of the roadway in such a way as to impede and obstruct the ordinary traffic of the street.

From this decision the plaintiff now appealed, by special leave, in forma pauperis to the High Court.

Macrossan (with him Murphy), for appellant. The respon- dents originally set up a defence of contributory negligence which they have now abandoned. Apart from its sections altogether the Act shows by the short title that the Tramway Company are liable for negligence that in any way obstructs the traffic: Vestry of St. Luke v. North Metropolitan Tramways Co. 1. As to heading of Statutes, see Fletcher v. Birkenhead Corporation 2. The case of Fielding v. Morley Corporation 3 lays down that the title is a part of the Act. The suspension of sec. 50 does not relieve the Company because they are liable otherwise: Midwood &Co. Ltd. V. Manchester Corporation 4; Ogston v. Aberdeen District Tramways Ltd. 5. But for the fact of the Tramway Company putting down their rails no nuisance would have arisen in this case: Oliver v. North Eastern…

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.

Keep reading for free

Create a free CaseChat account to read Nielsen v Brisbane Tramways Co Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1912] HCA 21
Decision Date: 9 May 1912

CaseChat Overview and Summary

The appellant, Nielsen, appealed to the High Court of Australia from a decision of the Supreme Court of Queensland. Nielsen had been injured when his bicycle struck a tram rail that projected above the surface of the road, causing him to fall. He sued the respondent, Brisbane Tramways Co Ltd, for damages, alleging negligence. The Supreme Court had overturned a verdict in favour of Nielsen, finding that the company was not liable due to the suspension of a relevant statutory provision.

The central legal issue before the High Court was whether the Brisbane Tramways Co Ltd was liable for the injuries sustained by Nielsen, despite the suspension of section 50 of the Tramways Act 1882-1890 (Qld). This section had imposed a duty on the company to maintain and repair the road surface between and adjacent to its tram rails. The appellant argued that the company remained liable at common law for creating a nuisance or through other provisions of the Act, even if section 50 was suspended.

The High Court, by majority, dismissed the appeal. The Court reasoned that the Tramways Act distinguished between the tramway itself and the road. While section 32 required the tram rails to be constructed and maintained level with the street surface, and section 33 prohibited the tramway from impeding traffic, these provisions were interpreted as applying to the construction and maintenance of the tramway structure itself, not the broader maintenance of the road. The suspension of section 50, which specifically addressed the company's duty to repair the road, meant that the company was no longer under a statutory obligation to perform that specific task. The Court concluded that the accident arose from a failure to maintain the road, a duty that, following the suspension of section 50, did not lie with the tramway company.

The appeal was dismissed, and the deposit made by the appellant was ordered to be returned.

Orders