Transport Commissioners (NSW) v Barton - [1933] HCA 9

THE TRANSPORT COMMISSIONERS OF

NEW SOUTH WALES BARTON

RESPONDENT. PLAINTIFF,

ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES. Negligence-Unfenced railway-line-Pustoral - district-Animal straying from adjoining

land-Injured by train-Liability of Commissioners-Degree of care-Gundagai to Tumut Railway Act 1900 (N.S.W.) (No. 43 of 1900), sec. 6-Government SYDNEY,

Railways Act 1912 (N.S.W.) (No. 30 of 1912), secs. 11, 51, 135-Government Nov. 29, 1932.

Railways (Fencing) Act 1902 (N.S.W.) (No. 76 of 1902). MELBOURNE,

The fact that a government railway-line, passing through pastoral country, April 3, 1933.

is under statutory authority left unfenced, cannot be taken as an implied permission by the Transport Commissioners for stock of adjoining landowners to be upon, or to cross, such line.

An animal straying on such a railway-line is a trespasser, and the only duty owed by the Transport Commissioners to the owner of the animal is not to recklessly disregard its presence, or intentionally inflict injury upon it.

Robert Addie &Sons (Collieries) Ltd. v. Dumbreck, (1929) A.C. 358, followed. Decision of the Supreme Court of New South Wales (Full Court): Barton V. Transport Commissioners, (1933) 33 S.R. (N.S.W.) 17, reversed.

APPEAL from the Supreme Court of New South Wales.

The plaintiff, Reginald George Barton of South Gundagai, horse- trainer, brought an action in the District Court against the Railway Commissioners (later styled Transport Commissioners) of New South

49 CLR 115

Wales, whom he sued as a body corporate, for damages for the loss of a mare killed on the Commissioners' railway from Gundagai to Tumut by reason, as he alleged, of the negligence of the Commis- sioners or their servants. The line was a Government railway constructed under the authority of the Gundagai to Tumut Railway Act 1900 (N.S.W.), sec. 6 of which provided that notwithstanding the provisions of section one hundred and six of the Public Works Act of 1888 the Constructing Authority shall not be required nor compelled nor shall it be the duty of the said Authority to make or maintain any fence along the said line of railway for the accommodation of any person or for any purpose whatsoever; but the said Authority may, in its discretion, make and maintain such fences in connection with the said line of railway as it may think fit." By the Government Railways Act 1912 (N.S.W.) the fee simple of the land bearing the railway-line-of which they are also the occupiers-is vested in the Commissioners, and by sec. 135 a penalty is imposed upon persons who permit animals to stray upon railways or upon the approaches thereto. The facts as given in evidence were as follows :-At or about the place where the accident occurred the Commissioners' land, on which the railway is constructed, is thirty-three yards wide and lies between two paddocks of a total area of about four acres belonging to the estate of the plaintiff's deceased father. The railway-line is unfenced on both sides, but at one side of one of the paddocks there is a fence distant about…

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: [1933] HCA 9
Decision Date: 3 April 1933

CaseChat Overview and Summary

The case of *Transport Commissioners (NSW) v Barton* involved an appeal to the High Court of Australia from a decision of the Supreme Court of New South Wales. The plaintiff, Mr. Barton, had sued the Transport Commissioners for damages after his mare was killed by a train on an unfenced railway line. The railway line passed through pastoral country and was owned and operated by the Commissioners. The plaintiff alleged negligence on the part of the Commissioners or their servants.

The central legal issues before the High Court were: firstly, whether the unfenced nature of the railway line, passing through pastoral land, implied a permission or licence for adjoining landowners' stock to cross or be on the line; and secondly, what duty of care, if any, the Transport Commissioners owed to the owner of an animal that had strayed onto the unfenced railway line. The court was required to determine whether the Commissioners' liability extended beyond not intentionally injuring the animal or recklessly disregarding its presence.

The High Court, by majority, found that the fact that the railway line was unfenced did not constitute an implied permission for animals to be on it. The court held that an animal straying onto the unfenced line was a trespasser. Applying the principles established in *Robert Addie & Sons (Collieries) Ltd v. Dumbreck*, the court determined that the only duty owed by the Commissioners to the owner of a trespassing animal was not to recklessly disregard its presence or intentionally inflict injury upon it. The court reasoned that the statutory provisions relieving the Commissioners of the duty to fence did not create a licence for stock to be on the line, and the owner of the animal was responsible for preventing its trespass. The Supreme Court's decision, which had found an implied licence and imposed a higher duty of care, was reversed.

The High Court rescinded the special leave to appeal and ordered the appellants to pay the costs of the appeal, as they had undertaken to do so in any event and were not insistent on a new trial, provided the principles of their liability were settled.

Orders