Sermon v Commissioner of Railways

The case of *Sermon v Commissioner of Railways* involved an appeal to the High Court of Australia from the Supreme Court of Western Australia. The appellant sought damages for fire caused by sparks from a railway engine, alleging negligence on the part of the Commissioner of Railways. The core of the dispute centred on the Commissioner's statutory authority to use any kind of fuel in his engines and whether this authority exempted him from liability for choosing a fuel that was more prone to causing fires.

The legal issues before the court were whether the Commissioner could be held liable for negligence based solely on the choice of a particular type of fuel, even if that fuel was more likely to cause fires than other available options, provided that reasonable precautions were taken in its use. The court was also required to interpret the scope of the discretion granted to the Commissioner under section 20 of the *Government Railways Act 1904* (W.A.), which permitted the use of "any kind of fuel."

The High Court, affirming the decision of the Supreme Court of Western Australia, held that an action for negligence could not be maintained against the Commissioner for the choice of fuel, provided that the best known safety appliances and proper care were employed in its use. The court reasoned that the statutory authorization to use "any kind of fuel" conferred a discretion that, when exercised with reasonable precautions, protected the Commissioner from liability for damages arising from the inherent risks associated with that fuel. The court considered the historical context of the legislation, including the discovery and use of local Collie coal, to support the interpretation that the legislature intended to grant broad discretion in fuel selection, particularly given that Collie coal was the only indigenous coal available. The court distinguished between negligence in the *selection* of an authorized fuel and negligence in the *manner of its use*.