TORETTE HOUSE PROPRIETARY LIMITED APPELLANT; BERKMAN
ON APPEAL FROM THE SUPREME COURT OF Nuisance-Rule in Rylands v. Fletcher-Domestic water supply-Escape of water H. C.
from disconnected pipe--Presence of pipe not known to occupier-Liability for 1939-1940. negligence of independent contractor.
The defendant was the owner of premises which adjoined the premises of the plaintiff. The defendant's premises were connected with the water supply. Amongst the pipes under the defendant's premises was'a disconnected service pipe. shut off from the main by a stopcock, but unplugged at the disconnected end. There was no evidence upon which it could be found that the defendant knew or ought to have known of the presence under his premises of the dis- connected pipe. The defendant employed as an independent contractor a plumber, whom he was entitled to assume to be competent, to effect certain alterations in the water supply to the defendant's premises. In the course of the work the plumber by mistake turned on the stopcock by which the dis- connected service pipe was shut off from the main and omitted to turn it off. As a result water escaped from the open end of the disconnected pipe and soaked through into the plaintiff's premises, considerable damage to the plaintiff's property being caused before the escape was discovered.
Held that the plaintiff had no cause of action against the defendant either in nuisance or under the rule in Rylands v. Fletcher, (1866) L.R. 1 Ex. 265 (1868) L.R. 3 H.L. 330, and that the case did not fall within any of the recog- nized grounds upon which a principal may be held liable for the negligence of an independent contractor.
Decision of the Supreme Court of New South Wales (Full Court): Torette House Pty. Ltd. v. Berkman, (1939) 39 S.R. (N.S.W.) 156; 56 W.N. (N.S.W.) 86, affirmed.
In an action brought in the Supreme Court of New South Wales the plaintiff, Torette House Pty. Ltd., claimed from the defendant, William Berkman, the sum of £1,000. The plaintiff company alleged that the defendant was possessed of certain premises con- tiguous to those of the plaintiff company and had on his premises and in his care, control and management certain water pipes, yet he by himself, his servants and agents (a) SO negligently conducted himself in and about the said care, control and management that large quantities of water were allowed to escape into the plaintiff company's basement, whereby great damage was caused, and, in a second count, (b) SO wrongfully and improperly conducted himself in and about the said care, control and management that large quantities of water were allowed to escape into the said basement causing damage.
The material facts were not in dispute. The defendant was the co-owner of certain premises numbered 113, 115 and 117 King Street, Sydney, no. 117 being situated above nos. 113 and 115. The plaintiff company was the occupant of no. 119, which adjoined…
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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AGLC
Torette House Pty Ltd v Berkman [1940] HCA 1
Case
[1940] HCA 1
Decision Date
CaseChat Overview and Summary
The appellant, Torette House Pty Ltd, appealed to the High Court of Australia from a decision of the Supreme Court of New South Wales. The dispute concerned damage caused to the appellant's premises by water escaping from a disconnected pipe under the respondent's adjoining property. The respondent had engaged an independent contractor, a plumber, to carry out alterations to the water supply on his premises. In the course of this work, the plumber mistakenly turned on a stopcock connected to the disconnected pipe, which was unplugged at its end, allowing water to flood into the appellant's basement. The respondent was unaware of the presence or condition of this disconnected pipe.
The legal issues before the High Court were whether the respondent was liable to the appellant in nuisance, under the rule in Rylands v. Fletcher, or for the negligence of the independent contractor. The appellant argued that the escape of water constituted a nuisance and that the respondent was strictly liable under the rule in Rylands v. Fletcher, or alternatively, that the respondent was vicariously liable for the negligence of the plumber. The respondent contended that he was not liable as he had no knowledge of the pipe, the escape of water was not a natural consequence of the work he commissioned, and he was not liable for the collateral negligence of an independent contractor.
The High Court, affirming the decision of the Supreme Court, held that the respondent was not liable. The Court reasoned that the rule in Rylands v. Fletcher did not apply because the installation of an ordinary domestic water supply is not considered a non-natural use of land, and the damage was caused by the plumber's negligence, not the mere presence of the pipe. Furthermore, the Court found that the respondent was not personally negligent, as he had no knowledge of the defective pipe and had engaged a competent independent contractor. The Court also held that the respondent was not liable for the plumber's negligence, as the work commissioned was not inherently dangerous, and the plumber's act of turning on the stopcock was collateral negligence outside the scope of his employment.
Consequently, the appeal was dismissed, and the verdict for the defendant (respondent) was upheld.