South Australian Railways Commissioner v Barnes
[1927] HCA 48
•22 November 1927
40 C.L.R.] OF AUSTRALIA.
179
[HIGH COURT OF AUSTRALIA.]
THE SOUTH AUSTRALIAN RAILWAYS
A p p e l l a n t
;
CO M M ISSIO N ER...................................
D e f e n d a n t ,
AND
B.4RNES
R e s p o n d e n t .
P l a in t if f ,
ON APPEAL PROM THE SUPREME COURT OP
SOUTH AUSTRALIA.
Negligence—Nuisance—Railways Commissioner—Railway-lines in public street—
H. C. OF A.
Non-repair of wood-blocking between rails—Liability for resulting damage— 1927.
Railways Clauses Consolidation Act 1847 (S.A.) (No. 7 of 1847), secs. 16, 41,
48, 51, o3—South Australian Railways Commissioners Act 1887 (S.A.) (No.
A d e l a id e ,
414), secs. 32, 45—Adelaide City and Port Railway Act 1850 (iS.*4.) (No. 1 of Sept.
22.
1850), secs. 3, 22, 25, 31, .53— Municipal Corporations Act 1923 (S.A.) (No.
1558), secs. 154, 156.
S y d n e y ,
Nov. 22.
A line of railway belonging to the appellant ran along a public street.
The
Isaacs A.C.J.,
railway had originally been constructed by a private company, under the Higgins and
authority of a private Act (No. 1 of 1850). By a long series of statutes the
Starke J J .
authorities, powers, duties and liabilities of the company had become vested in the appellant. In 1922 the roadway between, and for 18 inches on either side of, the rails was wood-blocked by the corporation of the municipality in which the street was situated. This was done at the request and expense of
the appellant.
A groove was out in the blocks on the inner side of each rail
to take the flanges of the wheels. In course of time the shoulder of this groove became worn away by the traffic on the street, leaving a considerable depression alongside the rail. The wheel of the respondent’s trolly caught in this depression, causing the trolly to skid and collide with a truck standing
on the line.
The respondent was thrown from the trolly and injured.
Held, that the appellant was liable to the respondent for the damages
sustained by him :
180 HIGH COURT
[1927.
H. C. O P A. By Isaacs A.C.J., on the ground that the appellant had constructed an
1927. artificial work in the road which, unless properly maintained, was likely to become a nuisance and that, having the power to repair it, he had allowed
S o u t h
it to become a nuisance ;
A u st r a l ia n R a il w a y s
By Iligyins and Starke
on the ground that the relevant statutes imposed
Co m m is
s io n e r
an obligation on the appellant to repair the wood-blocking between the rails,
V. which he had failed to carry out.
B a r n e s .
Decision of the Supreme Court of South Australia {Napier J.): Barrwrv.
South Australian Railways Commissioner, (1926) S.A.S.R. 409. affirmed.
A p p e a l from the Supreme Court of South Australia.
The respondent, Herbert John Barnes, brought an action in the Supreme Court of South Australia against the South Australian Railways Commissioner for damages for personal injuries sustained by him on 16th January 1924. The action was tried by Na'pier J., who gave judgment for the respondent for £4.50 damages ; Barnes v. South Australian Railways Commissioner (1). In delivering judg ment the learned Judge stated the facts, as found by him, as follows
“ (1) The defendant was the statutory owner of a line of railway laid in and along FusseU Street, Port Adelaide, which is a public street leading to No. 2 Quay. The roadway between, and for 18 inches on either side of, the rails ŵ as paved with wood blocks on a concrete foundation. This pavement ivas laid by the road authority at the expense of the defendant in 1922. As originally laid the blocks were flush with the rails, except that the blocks adjoining the inner side of each rail w-ere cut away to form a rounded groove (approximately 2 inches wide by 1 | inches deep) to take the flange of the wheel. In the course of use the shoulder of this groove along the western rail had been worn away until it formed a depression, some 7 inches in width, sloping from the level of the road to the inner side of the rail, where it was about 2 inches in depth. The effect was to leave the inner side of the rail standing as a ridge in the roadwmy ; but the paving was not worn to any appreciable extent on the outer side of the rail, or in the immediate vicinity, where a guard or check rail had been laid along the inner side of a slight curve in the line. (2) Since the morning in question the street had been altered; but at that time the line, from the curve referred to, was laid slantwise past a corner in the street, with this result, that, when railway trucks were standing, as the)'
(1) (1926) S.A.S.R. 409.
40 C.L.R.] OF AUSTRALIA.
181
■were on this occasion, near this corner, the trafiic from both directions R-
would be required to make a narrow passage (some 10 or 11 feet
wide) between the end truck and a post on the comer. The street
S o u t h
served a busy area and carried heavy traffic.
I infer, no less from
Co m m is
the wear indicated by this depression than from the evidence, that s io n e r
B a r n e s .V.
it must have been usual for much, if not most, of this traffic coming
from the quays to swing off the line at about this point when making the passage I have referred to. (3) On the morning in question the plaintiff was driving a three-horse trolly. He had delivered a load at No. 2 Quay and was returning along FusseU Street in the empty trolly. The course taken brought one wheel on to the line. A truck was standing on the line, covering the guard rail I have mentioned, and it became necessary for the plaintiff to turn off the line, and pass through the space between the truck and the post at the corner of the footpath. In doing so the wheel of the troUy entered the depression, and caught and skidded along the raU. This caused the trolly to colUde with the truck and the plaintiff was thrown on to the road. He was caught in the reins and dragged, and sustained the injuries complained of. . . . (4) The statement of claim aUeged a duty on the part of the defendant to maintain the railway in a safe condition for traffic on the highway, and therefore to maintain and repair the roadway when necessary for that purpose, and negligence in the performance of that duty. The defence denied any obligation to maintain or repair the roadway, as weU as any negligence in relation thereto or otherwise in relation to the construction or maintenance of the line. I t also alleged contributory negligence on the part of the plaintiff, and the recovery of compen sation under the Wwkmen’s Compensation Act 1911. (5) The authority to construct this line in the street is derived from the Ordinance No. 1 of 1850, which empowered a private company to construct a railway from the ttty to the Port of Adelaide according to a deposited plan. This was an ancillary hne, laid under sec. 25, which reads :— * It shall be lawfful for the . . . Company to lay down rails to any wharf or wharves if the owner or owmers thereof shall consent thereto : Provided always, that no such rails shall pass over, along, or into any road, without the Avritten sanction and approval of the proper authorities.’ The provisions of the Railway Clauses Comolidation
182 HIGH COURT
[1927.
H. C. OF A. Act 1847 were incorporated with this private Act. Secs. 41 et seqq. of that statute provide ‘ with respect to the crossing of roads or S o u t h other interference therewith.’ Under this heading the material
R a il w a y s sections may be paraphrased as follows :—Sec. 41—Bridges and all
CoMMis- necessary works are to be constructed and maintained at the expense SIGNER
V.
B a r n e s .of the Company where the line crosses public highways unless the
special Act provides to the contrary or the consent of justices to a level crossing can be obtained. Sec. 48—A substituted road is to be provided and maintained whenever ‘ in the exercise of the powers of this or the special Act granted ’ it is found necessary to cross, cut through, raise, sink or use any part of any road, so as to make it impassable, dangerous or extraordinarily inconvenient. Sec. 51— If the road so interfered with can be restored compatibly with the formation and use of the railway, it shall be restored as nearly as may be, and if it cannot be restored the substituted road shall be put into permanent substantial condition. Sec. 53—If the Company ‘ interfere with any road, they shall from time to time make good all damage done by them to such road,’ and if any question arise as to damage done or repairs they shall be referred to the determination of justices and a penalty may be imposed for default in repairing. By a long series of statutes the authorities, powers, duties and liabilities of the Company under the Ordinance Xo. 1 of 1850 are vested in the defendant. It is unnecessary to refer to these statutes in detail, but the South Australian Railways Commissioners Act 1887 provides in sec. 32 that all railways together with the land over which they have been constructed and the inheritance thereof in fee simple and all powers, functions, obligations, duties, immunities and rights are transferred to and invested in the Commissioners for the purposes of that A ct; and by sec. 45 that it is their duty to maintain the railways and the accommodation thereto in a state of efficiency. (6) I find upon the evidence (a) that the line was laid in the street with the written sanction and approval of the proper authority under sec. 25 of the Ordinance No. 1 of 1850 ; (b) that as laid, and as the roadway was paved in 1922, the line was properly constructed in the sense that there ŵ as no interference with the use of the highway exceeding that wffiich w'as inevitable for the purpose of making the line available for traffic ; (c) but a guard
40 C.L.R.J OF AUSTRALIA.
183
rail could have been laid which would have afforded permanent C-
o f A.
protection to the paving without affecting the use of the line—if a ^
guard rail had been laid this depression would not have been formed ;
S o u t h
(d) in the state in which it was at the time of the accident, the raelways
Co m m is
depression in the road made the rail dangerous to persons using the s io n e r
B a r n e s .V.
highway as the plaintiff was using it, and this danger might and
should have been realized by the defendant, or his offfcers, if due care had been taken ; (e) the evidence does not enable me to say whether the plaintiff was under any absolute necessity to use the road as he did use it—but on the other hand it is not proved that the plaintiff did anything that an ordinary driver might not be expected to do under the circumstances as they existed at the time of the accident; (f) if the obligation of the defendant was to so maintain the roadway as to prevent the rails becoming unnecessarily dangerous to persons using the highway, the defendant has been guilty of negligence in the performance of this duty, and no contributory negligence upon the part of the plaintiff has been established.”
From the judgment of Napier J. the defendant now appealed to the High Court.
Hanmn, for the appellant. The railway in FusseU Street was authorized by sec. 25 of Ordinance No. 1 of 1850. The statutes impose an obhgation on the appellant to repair the railway and other works authorized to be constructed; but this obligation is limited to the fabric of the railway, and cannot extend to the roadwmy between the rails (Nielsen v. Brisbane' Tramways Go. (1) ; In re London County Council and London Street Tramways Co. (2) ). The appellant, therefore, owed no duty to the respondent under the statutes in respect of the wood-blocking which had been worn away, and he cannot be liable in any other way.
[Isaacs A.C.J. referred to Layan Navigation Co. v. Lambeg
Bleaching, Dyeing and Finishing Co. (3).]
The undertaking was properly constructed and tlie appellant was not under any further obligation.
(1) (1912) 14 C.L.R. 3')4.
(2) (1894) 2 Q.B. 189.
(3) (1927) A.C. 226.
184 HIGH COURT
[1927.
H. C. O F A.
[S t a r k e J. reierred to Borowjh of Bathurst
v. Macpherson (]) ;
1927. Municipal Council of Sydney v. Bovrke (2).]
S o u t h
The fee simple in the road is vested in the Port Adelaide Corporation
A u s t r a l ia n
R a il w a y s
{Municipal Corporations Act 192.3 (.S.A.), sec. 154). [Counsel also
Co m m is
s io n e rreferred to Thompson v. Mayor &c. of Brighton] Oliver v. Local
V. Board of Horsham (3) ; Lainy v. Paul <& Williamson (4); Municipal
B a r n e s .
Tramways Trust v. Stephens (5); Haurigan v. Bendigo Tramways
Co. (6).]
Abbott (with him Travers), for the respondent. The wood blocks between the rails are portion of the railway {Duke oj Northumberland V. North-Eastern Railway Co. (7) ). If this view' is not correct, they are portion of the works connected with the railway, or a place used in working the raihvay, or accommodation works. The appellant was liable at common law, or under the statutes, to repair these wood blocks. The power to repair conferred by sec. 16 of the Railways Clauses Consolidation Act 1847 (S..4.) implies a duty to repair {Geddis v. Proprietors of\Bann Reservoir (8) ).
Hannan, in reply.
Cur. adv. vult
Nov. 22.
The following ivritten judgments were delivered :—
I sa a c s A.C.J. The way in which the respondent, Herbert John
Barnes, was injured is simply to ld ;—On 16th January 1924 he was
drmng three horses attached to a four-wheeled troUy on a public
road. Honey Street, where there was constructed a hne of railway
belonging to the appellant. While he was proceeding with all due
care across the railway-hne, one of the wheels of the trolly entered
a depression alongside the inner surface of one of the rails, skidded
along the rail and brought the troUy into collision with a railway
truck. The respondent was thrown out and severely injured.
(1) (1879) 4 App. Cas. 256.(5) (1912) 15 C.L.R. 104.
(2) (1895) A.C. 433.
(6) (1896) 22 V.L.R. 273 ; 18 A.L.T.
(3) (1894) 1 Q.B. 332.
98.
(4) (1912) S.C. 196.
(7) (1893) 95 L.T. Jo. 181.
(8) (1878) 3 App. Cas. 430.
40 C.L.R.]
185
OF AUSTRALIA.
Napier J. held the appellant responsible for the dangerous condition H- C. or A.
of the depression; and from that decision this appeal is brought.
No question now arises as to the respondent’s care or the dangerous
S o u t h
condition of the road in consequence of the depression.
The only
COMMIS-
question is : Is the appellant hable ?
SIONEE
V.
The appellant is the statutory owner of the raUway-lLne in question. It runs along FusseU Street and across Honey Street to No. 2 Quay
B a b n e s .
Isaacs A.C.J.
at Port Adelaide. I t is a single line consisting of two paraUel rails running generally north and south and being 5 feet 3 inches apart. This hne was constructed very many years ago—about 1879—and the Corporation of Port Adelaide consented in writing to its construction in and over the streets mentioned. In 1922 the Corporation wood- blocked the line; that is, put in as roadway surface wooden blocks between the raUs and for a distance of 18 inches on the outer sides •of them. The Corporation did this at the request of the Commis sioner and was paid for it by him. As then laid the blocks were flu.sh in height with the rails, but nmning paraUel with the rails, and along their inner sides there was a rounded groove in the blocks for the pmpose of allowing the flange of the railwa}"̂ carriage wheels to run free. At the time these blocks were laid the groove w'as about 2 inches wide by l-J- inches deep. That was safe for vehicles so long as the groove maintained its dimensions. But it graduaUy enlarged, as might have been expected, from the traffic passing over and along the hne. The learned trial Judge finds that at the time of the accident it had become a depression extending some distance along the raU, and some 7 inches in width, sloping from the level of the road to the inner side of the rail, where it was about 2 inches in depth. The effect was, as the learned Judge describes, to leave the inner side of the rail standing as a ridge in the roadway. He adds that the paving was not worn to any appreciable extent on the outer side of the raU, or in the immediate \dcinity, where a guard or check rail had been laid along the inner side of a slight curve in the line. There can be no doubt that the groove was the w-eak spot and led to the creation and existence of the dangerous depression -and the consequent dangerous, ridgeUke condition of the rail, which occasioned the respondent’s injuries.
186 HIGH COURT
[1927.
| H. | C. or A In rnv opinion the appellant is responsible. Shortly stated, the | |
|
S o u t hpurposes of working the railway caused to be constructed on the road
A u s t e a l ia n
R a il w a y s
a wood surface having a groove at a distance from the rail, he had
Co m m is
s io n e rthereby caused to be constructed for railway purposes an artificial
V.work which, uidess properly maintained, was likely to become
B a r n e s .
and did become a danger to public traffic on the highway.
The
Isaacs A.C.J.
Commissioner had power to maintain the work properly so as to prevent the danger, but he neglected to do so and the respondent was thereby injured.
For the appellant two main arguments were presented; one was that the negligence complained of was non-feasance ; the other was that, if there were liability on anyone, the Railways Commissioner was free because the work referred to was done by the Corporation and the only legal duty on the railway authority was to restore the street to its prior condition, reference being made to sec. 53 of the Act No. 7 of 1847.
In Woollahra Council v. Moody (1)1 expressed my opinion as tO' Uabilit} ̂ for non-feasance. The law, as I understand it, is that road authorities are not, in the absence of express enactment to the contrary, liable for “ mere non-feasance,” as in Sydney Municipal Council V. BourJce (2), but that non-repair of an artificial work which, if left unrepaired, is likely to become and does thereby become a danger to persons using the highway is not mm non-feasance, and is actionable where damage ensues. Other authorities are there cited, including one which I think is very much in point here. I refer to Shoreditch Corporation v. Bull (3).. Notwithstanding the diverse legal characters of the appellant in that case—as sewer authority and highway authority—the House of Lords held that the person who interferes wdth the normal condition of a road is responsible for it until its return to a safe condition. That principle applies, of course, to the case where the person sought to be made liable had in the first instance lawful authority to interfere with the normal condition of the road, and it assumes that he had power to restore it to its former condition and,.
(1) (1913) 16 C.L.R. .353.
(2) (1895) A.C. 433.
(3) (1904) 90 L.T. 210.
40 C.L.R.] OF AUSTRALIA.
187
if acting under parliamentary authority, to restore it consistently
C. or A.
with the exercise of the authority conferred.
J
It was assumed in the argument for the present appellant that the
So u t h
• . • •
|A TT.igTTt AT.T A N
Railw’ays Commissioner had restored the road to its normal condition, r a il w a y s
Co m m is
or, in other words, had made good the damage. But I do not so
s io n e r
B a b n e s . V.
consider. A groove was doubtless necessary for the proper
construction of the line and the proper working of the railway.
Isaacs A.C.J-
But it cannot be said that the road was restored to its prior normal condition as a highway; that is, of course, restoration consistent with the presence of the railway. A danger spot was created in a manner certain, unless properly maintained, to develop into active peril as a natural consequence. That could have been averted by the common expedient of a check rail, which would have permitted the required groove to exist and yet allowed the blocks or other road material to be placed in juxtaposition to the check rail, as it was to the outer side of the rails at the time. The alternative was to watch and to repair either by subsequently inserting the check rail or otherwise, when the groove enlarged. That was all well wdthin the statutory authority of the Commissioner.
Now, I do not desire to express any opinion as to the full extent of sec. 32 of the South Australian Railways Commissioners Act of 1887 (No. 414) in competition with sec. 154, and I should add sec. 156, of the Municipal Corporations Act of 1923 (No. 1558), or any opinion as to whether the municipality would be free from respon sibility in this case. That is not necessary to determine. Nor must I be understood as affirming or denying a proposition so large as necessarily to involve liability of the Railw'ays Commissioner in the event of the roadway between the rails becoming dangerous by reason of some circumstance not connected with or referable to the constructional arrangements or the operation of the raffivay and its adjuncts. In the present case one of the links in the chain of essential circumstances is the groove, wffiich was constructed for railway purposes, and to which can be referred the natural likelihood and the actual consequence of the road surface becoming dangerous and the adjacent rail being a public nuisance. As to the Commis sioner’s pow'er to avert the danger, it is beyond dispute that the railway itself and its appurtenances are vested in and under the care
188 HIGH COURT
[1927.
| H. | C. OF A. and management of the appellant. Act No. 414, by sec. 5, | |
|
SOUTHI entertain no doubt that sec. 16 of the Act of 1847, in its last two
preceding the proviso, gives ample power to the Commissioner
COMMIS-
SIONEBto do by way of alteration or repair what he could do for railway
V.purposes in original construction. He could, therefore, have
B a b n e s .
restored the groove or flange-space to its original dimensions, and he
Isaacs A.C.J.
could, in order to preserve it, have laid down a check rail, which would then have placed the highway in its normal state of safety compatibly with the effective construction and working of the railway-line. The rails rest on sleepers extending over the whole width of 5 feet 3 inches, and there can be no doubt the Act enables the Commissioner to take up the surface when required to renew or readjust the construction works under it. Similarly as to the present case.
Some stress was laid on sec. 25 of the Act of 1850 (No. 1), the original authority to construct the line. That section required the written sanction and approval of the proper authorities to lay down rails over and along the roads. The necessary consent was, as I have said, obtained, and, in my opinion, consent there means a consent to construct on the known constructional and repairing terms of the Act, which, by sec. 3, incorporated the Act of 1847. Having the power, there was, in the circumstances, the duty, as established by Geddis v. Proprietors of Barm Reservoir (1) and Lagan Navigation Co. v. Lambeg Bleaching, Dyeing and Finishirig Co. (2).
We have since the argument been referred to a decision of the learned Chief J ustice, Sir George Murray, in City of Port Adelaide v. South Australian Railways Commissioner (3), in which his Honor held that, in the absence of the consent of the City Corporation to make a railway on the Elder Road, the making of a railway there was, by reason of sec. 25 of the Act No. 1 of 1850, illegal. In that case reference was made to a prior decision of the Supreme Court of South Austraha, Barker v. City of Adelaide (4), giving a very large interpretation to the Municipal Corporations Act of 1890, vesting
(1) (1878) 3 App. Cas. 430.(3) (1927) S.A.S.R. 197.
(2) (1927) A.C., particularly at
(4) (1900) S.A.L.R. 29.
pp. 244, 249.
40 C.L.R.] OF AUSTRALIA.
180
the fee simple of public streets in the corporation of the municipality.
The Legislature has, since then, repeated its enactment. Beyond
.__ ,
that circumstance, which, to my mind, after reading Barl-er’s Case
S otjth
. . . '
.
A u s t r a u a k R a il w a y s COMMIS-
(1), makes it especially desirable to refrain from unnecessarily
attempting to adjust the vesting sections of the respective authorities,
SIONEK
V.
I do not tbink the decision in the recent case affects the present
B a b n e s .
appeal. Nor does sec. 50 of Act No. 1 of 1850, to which we have also been specially referred.
Isaacs A.C.3..
In my opinion, for the reasons I have stated, the judgment of
Napier J. should be affirmed, and this appeal dismissed.
H ig g in s J. This action was brought against the Railways Commissioner of South Australia for neghgence in the maintenance of a railway whereby the plaintiff was injured. I t relates to the railway laid along the public streets which is so marked a feature of the streets between Adelaide and Port Adelaide, where beUs ring on the locomotive engine to warn the public of the train’s approach. It is clear that the roadway was not in a proper state of repair for pubhc use and that the accident happened to the plaintiff as a residt. The only question left for us is as to the habUity of the Commissioner to maintain the roadway at ah—was he “ under any legal obligation to repair ” the roadway between the rails (see gromid 2 of the notice of appeal) ?
The facts have been clearly stated by the learned Judge of first instance [Napier J.). I t appears that in 1922 the mmiicipal council, at the request and at the expense of the Commissioner, paved the roadway between the rails with wooden blocks on a concrete foundation, flush with the rails, except that a narrow groove was left along the rails for the flange of the wheels. As a result of use of the roadway with the rails, a sloping depression had been formed in the blocks about 7 inches ivide ; the wheel of the lorry which the plaintiff was driving entered the depression, was caught and skidded along the ra il; the cart collided with a truck standing on the railway, and the plaintiff was thrown out.
The facts having been grasped clearly, it seems to me that our first business is to study the relevant Acts and ordinances, and to-
(1) (1900) S.A.L.R. 29.
190 HIGH COURT
[1927.
H. C. OF A.
in particular the duties and the powers of the Commissioner as
1927. . .
.
___ therein prescribed ; without this study it is a dangerous course to
So u t h
A u s t r a l ia napply English or Australian decisions under Acts which are different,
RAILWA/YSor to base our decision on the common law doctrine as to nuisance.
Co m m is
s io n e r
I t is common ground that the Commissioner had all the duties
V.
B a r n e s .and powers which were conferred in the first instance on a London
company under a sjiecial .4ct (Ordinance No. 1 of 1850). In addition to the power to construct a raihvay according to plans deposited, the Ordinance (sec. 25) gave power to the Company to lay down rails to any wharf if the owner should consent thereto (that is to say, if the owmer of the wharf should consent to rails being laid down to his wharf) ; but it ŵ as provided that no such rails should pass over any road without the written sanction and approval of the proper authorities. The rails in this case were laid down with this consent, and with this sanction and approval.
Higgins J.
The Bailtmy Clauses Consolidation Act of 1847 (No. 7) was incorporated with this special Act. I t contained a section (sec. 41) as to the crossing of roads—that there should be a bridge under or over the railway, and that the bridge, with the immediate approaches, and all other necessary works connected therewith should be executed ■“ and at all times thereafter maintained at the expense of the
| Company.” But this is not a case in which a bridge is concerned. |
Under sec, 22 of the special Act, the Company is empowered to make and maintain the main line of railway, branches and works, and to enter upon and take over such of the lands as may be necessary for the purpose. But there is a section which seems clearly to cover auxiliary lines such as the line in question—sec. 31: “ In order to guard against accident, and to ensure that the railway shall be properly maintained . . . the Company shall be boimd at all times duly to maintain the railway, branches, and whole undertaking, in good and efficient rejiah' and working condition.” The Governor is also empowered to direct any repairs at the cost of the Company.
But this is not all. By the South Australian Railways Commis sioners Act 1887 (there were then three Commissioners) it was provided, not only that the Commissioners should construct all lines of railways and works aheady authorized and to be authorized.
40 C.L.R.] OF AUSTRALIA.
191
but also that “ it shall . . .
be the duty of the CommissioneTS to H.O. orA.
supervise and see that the railways and the accommodation thereto ”
_̂__
(sic) “ are maintained in a state of efficiency ” (sec. 45). Now,
I do
S o u t h A u s t b a u a h
not like to dogmatize as to the meaning of the unusual words
the
R a il w a y s COMIUS-
accommodation thereto ” : but I can see no reason for doubting
SIONEB
that this section imposes on the Commissioners (or Commissioner)
V.
B a b n e s .
the duty of maintaining, not only the actual rails but the space
Higgins J
between the rails. We are not justified in treating the “ rails ” as being the “ railway ” : the ballast for the railway and the sleepers are part of the railway ; and from the nature of the case a duty to maintain the rails only would not be effective. Unless there are (dear words to the contrary—and there are none—we should treat this provision as involving what would be necessary for the governing purpose, the purpose of the railway. Could it be reasonably argued that the Commissioner has no power to open the earth between the rails to put in new sleepers ? As was stated in Duke of Northumberland v. North-Eastern Raihvay Co. (1), “ ‘ railway ’ is not synonymous with ‘ rads,’ and cannot be construed as meaning only a particular line of rails. Railway means far more than that. I t includes the land taken and used for railway purposes.”
If sec. 32 of the Act of 1887 means that the whole of the railway land is vested in the Commissioners, the position is still stronger for the respondent—“ All railways and rolling-stock heretofore constructed or acquired, or which may hereafter be constructed or acquired, by or on behalf of the State, and the piers, wharves, jetties, stations, yards, and buildings connected or used therewdth respectively, or forming or reputed to be part or parcel thereof respectively, together with the land over or upon which the said railways, piers, wharves, jetties, stations, yards, and buildings have been or may hereafter be constructed or erected, and the land included within the boundary fences of any of the said railways, and all lands outside such fences which may have been acquired by the Commis sioners of Railways under any Act authorizing the taking of land for railway purposes, and the inheritance thereof in fee simple, and all the powers, functions, obligations, -duties, immunities, and rights, by any Act, or portion of an Act, not hereby repealed, conferred
(1) (1893) 95 L.T. Jo., at pp. 181-182— June 24.
192 HIGH COURT
[1927.
H. C. OF A. or imposed upon or vested in the Commissioners of Railways, shall
be and the same are hereby transferred to and invested in the
S o u t h
Commissioners for the purposes of this Act.”
A u s t r a l ia n
R a il w a y sThe only doubt which I feel as to the effect of this section is that
| Co m m is it may possibly be held not to apply to railways along streets. |
s io n e r
V.There is no express exception of such railways; and there is
B a r n e s . nothing in the nature of the case which would make it improbable
Higgins J.that Parliament should vest the whole railway bed in the Commis
sioners. I do not ignore the provision contained in sec. 154 of the Municipal Corporations Act 1923—that “ the fee simple of every public street in the municipality shall be vested in the corporation of such municipality ” ; and the provision in sec. 156 that “ all main roads . . . and other things erected thereon or affixed thereto, not being the property of any other person or company, shall be vested in, and be under the care, management, and control of the corporation.” This Act is a consolidation A c t; and it expressly repeals certain Acts mentioned in the schedule “ to the extent therein mentioned ” (sec. 3) ; but it does not purport to repeal sec. 31 of the Ordinance No. 1 of 1850, or sec. 32 or sec. 45 of the Act of 1887 ; and if these sections have the force which I suggest, there appears to be no ground for saying that this general Act as to municipal corporations repeals the special Acts of 1850 and 1887—Generalia specialibus non derogant.
But even if land on which the railway runs should be regarded as not vested in the Commissioner—even if the Commissioner is to be regarded as merely having some right in the nature of an easement or licence over land vested in the corporation—there seems to be no possible ground for saying that the duty of maintenance, imposed by sec. 45 of the Act of 1887 as well as by sec. 31 of the Ordinance No. 1 of 1850, has ceased. My opinion is that there is a much simpler answer to the question before us than has been given—an answer which is based on the words of the relevant Acts themselves ; and that there is no need for us to base our decision on the doctrine of nuisance or on the cases cited from the English and Australian and State reports, and that we have no right to do so. This leaves open any question which may arise as to the duty of the corporation as to its roads. I t has to be borne in mind that in this case the
40 C.L.R.] OF AUSTRALIA.
193
corporation laid the blocks, but at the request and expense of the R- C. o f a .
Commissioner.
The view which I have expressed to the effect that we must exhaust the effect of the Acts before we resort to the common law
S o u t h
jA A T.T A ’’C
r a il w a y s
Cosnns-
doctrine of nuisance is confirmed by the decision of the House of SIONER
B a k n e s .V.
Ixirds in Sharjmess New Docks and Gloucester and Birmingham
Navigation Co. v. Attorney-General (1). There a city corporation
Higgins J.
sought a declaration that a railway company was bound to maintain and keep in repair certain bridges which carried highways over a canal, including approaches on either side. The Court of Appeal had declared that the company was so bound as to the bridges, to the extent “ sufficient to bear the ordinary trafiic of the district which might be reasonably expected to pass along the highways ” ; but the House of Lords reversed the judgment, pointing out that under the special Act the duty to repair was confined to the condition which the Commissioners at the time of construction (1812) had determined. As Viscount Haldane L.C. said (2) :—“ Authorities in cases of coustruction of statutes of this nature can rarely be of much value. . . . The materials for auswering questious of interpreta tion ought primarily to be sought for wfithin the four corners of the Act of Parliament, and not in what Judges, however eminent, have said either about other statutes, the language of which is different, or about the common law, which is superseded by the code expressed.
. . . The question . . . is, there being a provision in the statute, what obhgation its words impose.” Lord Dunedin said (3):—“ Where the statute deals with the subject its provisions form a code on that subject, and cannot be added to by what has been called a common law doctrine. I am unable to agree with the dictum of Fletcher Moulton L.J. in the case of Hertfordshire County Council v. Great Eastern Railway Co. (4), which is approved of in the judgments in the Court of Appeal in this case, and which in my opinion is too broadly expressed, as it would impart a common law obligation running side by side with the expressed statutory obligations ” ; and Lord Atkinson agreed. Lord Parker of Waddington also agreed, saying (5):—“ It is one thing to rely on a common law principle where a statute is silent. I t is
(1) {1915) A.C.(3) (1915) A.C., at p. 663.
(2) (1915) A.C., at p. 062.
(4) (1909) 2 K.B. 403, at p. 412.
(5) (1915) A.C., at pp. 669, 670.
194 HIGH COURT
[1927.
H, C. or A. quite another thing to invoke a common law principle in order to
.__ impose an obligation different from or in addition to the obligations
S o u t h
which are defined by the statute as those subject to which a company
R a il w a y s may interfere with a highway.” Lord Parmoor also agreed (1), saying
CoMMis doctrine of Lord
Moulton in the Court of Appeal—to theS IG N E R
V.
B a r n e s .effect that where the statute is silent on the subject there is prima
Higgins J.facie, without express words, an obligation on the company to keep
in repair its substituted work—was “ setting aside the statutory obligation and substituting a different one in its place.' . . . The function of the Cburts is simply to construe a statute so a,s to give effect to the will of the Legislature.” In other words, the common law as to nuisance and cognate subjects is not applicable to a position which is covered by a statutory code. Both laws cannot be apphcable to the same subject at the same time. The result on a common law basis may happen to be the same in a particular case as the result on the statutory basis ; but the application of the common law under such circumstances as the present is, I venture to think, an error which is sure to bring its Nemesis.
In my opinion, therefore, the judgment of the learned primary Judge is right, by reason of the relevant Acts as cited to us. My only hesitation arises when I read the recent judgment of Murray C.J., handed up to us after the argument of this case {City of Port Adelaide V. South Australian Railways Commissioner (2) ). This judgment goes elaborately into the history of these railway Acts, sho'wing that there is much more relevant legislation on the subject in South Austraha than counsel in the case before us thought necessary to mention. I t is one of the perils incident to our functions as a Court- of appeal on State laws that we are dependent for knowledge of the relevant laws on the arguments of counsel; and it may be that there is some section in some Act of which we are not informed, which puts a totally different complexion on the relations of the Commissioner to the pubhc roads. But, subject to this hesitation, I concur in the opinion that this appeal ought to be dismissed.
Starke J. This case, I agree, depends upon the proper con struction of the relevant statutes of South Austraha {Sharyness
(1) (1915) A.C., at pp. 672, 673.
(2) (1927) S.A.S.R. 197.
40 C.L.R.] OF AUSTRALIA.
195
iVfiW Docks cfec. Co. V. Attorney-General (1); Attorney-General v. H. C. o f A .
Great Northern Railway (2) ; Attorney-General for Ireland v. Ijigan
Navigahon Co. (3) ). They have been set out in some detail by my
S o u t h
brother Higgins, and I do not repeat them. Suffice it to say that the
R a il w a y s
railway in question here was constructed across a highway under
S IG N E R
V.
the sanction of those Acts and under their sanction it is maintained.B a b n e s .
Under these Acts also the Commissioner of the South Australian
Starke J.
railways has full authority to do all acts for maintaining, altering or repairing, and using the railway. The wooden blocks between the rails on the highway crossing had worn down and so had allowed the rails to project above the level of the road. A trolley driven by the plaintiff was caught by the rails and the plaintiff thrown out and injured. The Commissioner contends that it was not his duty to keep the crossing between the rails in repair ; in my opinion, it was his duty to keep the crossing in a proper and reasonable state for the passage of vehicles across the rails. Such cases as Geddis v. Proprietors of Bann Reservoir (4) and Oliver v. North-Eastern Railway Co. (5) support that view and, I think, are decisive of the existence of that duty. The judgment of Napier J. ought to be
affirmed.
,
Appeal dismissed with costs.
Solicitor for the appellant, A. J. Hannan, Crown Solicitor for South Australia.
Solicitors for the respondent, W. J. Denny <& Daly.
G. S. R.
(1) (1915) A.C. 6.54. (3) (1924) A.C. 877.
(2) (1916) 2 A.C. 356.
(4) (1878) 3 App. Cas. 430.
(5) (1874) L.R. 9 Q.B. 409.
Key Legal Topics
Areas of Law
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Negligence & Tort
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Statutory Interpretation
Legal Concepts
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Duty of Care
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Negligence
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Statutory Construction
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