Transport Commissioners (NSW) v Barton

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The High Court rescinded the special leave to appeal and ordered the appellants to pay the costs of the appeal, as they had undertaken to do so in any event and were not insistent on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