Victorian Railways Commissioners v Speed

[1928] HCA 3

434 HIGH COURT

[1928.

[HIGH COURT OF AUSTRALIA.]

VICTORIAN RAILWAYS COMMISSIONERS

A ppellants :

D efendants,

SPEED . ..

R espondent.

Plaintiff,

ON APPEAL FROM THE SUPREME COURT OF

VICTORIA.

H C OF A County Court— Action against Victorian Railways Commissioners for losses mused hy

1928.                   sparks from engine— Reference to arbitration— Death of person caused by fire—

Action for damages by dependants— Railways Act 1915 (Viet.) (No. 2716),

M e l b o u r n e ,

see. 183 (2)— Wrongs Act 1915 (Viet.) (No. 2751), Part III.

Feb. 21 ;

Sec. 183 (2) of the Railways Act 1915 (Viet.) provides that “ Every action

M ar.

8.

against the Commissioners, except actions for losses caused by sparks from

Knox C.J.,

Isaacs, Higgins,

railway engines, shall . . . be heard and determined in a County Court

Powers and

. . . : Provided that all actions for losses caused by sparks from railway

SiarKe JJ.

engines shall be referred to arbitration.”

Held, by the whole Court, that the exception and the proviso to that section have no application to an action brought under Part III. of the Wrongs Act 1915 (Viet.) on behalf of the dependants of a deceased person although his death was caused by a fire having its origin in sparks from a railway engine. Held, also, by Isaacs, Powers and Starke JJ., that the word “ losses ” in the exception and the proviso is not restricted to losses of property but includes also pecuniary losses arising out of personal injuries.

Decision of the Supreme Court of Victoria (PuU Court) : Speed v. Victorian Railways Commissioners, (1928) V.L.R. 150 ; 49 A.L.T. 161, affirmed on a different ground.

Appeal from the Supreme Court' of Victoria.

An action wa.s brought in the County Court at Camperdown by Mary Ellen Speed against the Victorian Railways Commissioners.

40 C.L.R.] OF AUSTRALIA.

4.35

In the particulars of the plaintiff’s demand it was stated that the H- c. o f a.

action was brought on behalf of the plaintiff herself, who was the

widow of Leshe Speed deceased, and their children, Mary Speed,

VlCTOBIAU R a il w a y s

Leslie Speed, Joyce Speed, Frederick Speed and Alexander Tunney

Co m m is­

s io n e r s

Speed; and that the plaintiff demanded damages sustained by the

V,

plaintiff and the children owing to the wrongful acts and /or neglect

Sp e e d .

and /or default of the Commissioners, particulars of which had been ^ven in a notice of action, whereby the death of the said Leslie Speed was caused. In the notice of action the wrongful acts and defaults complained of were that the defendants brought upon their railway-line fire which, owing to the neghgence of the defendants or their servants or agents escaped and spreading caused the death of Leshe Speed. The neghgence complained of included (uiter alia) that no proper precautions were taken to ensure that embers and/or hve cinders should not escape from one of the defendants’ railway engines. The defendants apphed by summons to a Judge of the above-mentioned County Court, for an order that so much of the action as was for losses caused by sparks from a railway engine should be referred to arbitration pursuant to sec. 183 (2) of the Bailways Act 1915 (Viet.). The summons having been dismissed, the defendants appealed to the Full Court of the Supreme Court and the appeal was dismissed, all the members of the Court holding that the word “ losses ” in sec. 183 (2) was restricted to losses of property and did not include pecuniary losses arising out of personal injuries •. Speed v. Victorian Railways Commissioners (1).

From that decision the defendants now appealed to the High Court.

Ham K.C. (with him Macfarlan), for the appellants. There is no sufficient reason for restricting the word “ losses ” in sec. 183 (2) of the Railways Act 1915 to losses of property. That word is directed to what the plaintiff has suffered, while “ damages ” is directed to the remedy he seeks. The inconvenience arising from the necessity of splitting the cause of action where both loss of property and personal injury have occurred arises whatever meaning is given to the word “ losses.” [Counsel referred to Dennis v. Victorian Bailways Commissioner (2).] An action rmder Part. III.

(1) (1928) V.L.R. 150 ; 49 A.L.T. 161.

(2) (1901) 27 V.L.R. 323 ; 23 A.L.T. 103.

436 HIGH COURT

[1928.

H. G. OE A. of the Wrongs Act 1915 is within the exception and the proviso to sec. 183 (2) of the Railways Act 1915. The word “ losses ” is

V ic to r ia nappropriate to the loss suffered by the dependants of a person

R a il w a y .s

COMMIS-

whose death was caused by sparks from a railway engine.

SIONER.K

V.           Pecuniary loss is essential to an action under Part III. of the

Sp e e d .Wrongs Act 1915 {Pym v. Great Northern Railway Co. (1); Salmmd

on Torts, 6th ed., p. 417 ; Blake v. Midland Railway Co. (2); Hidl

V. Great Northern Railway Co. of Ireland (3) ; Duckworth v. Johnson

(4); Seward v. Oimer of the Vera Cruz (5) ).

[Isaacs J. referred to McColl v. Canadian Pacific Railway Co. (6).] The claim of the dependants is not based on the death only, but the cause of the death is as much a portion of the cause of action as is the death itself. The cause of action is a wrongful act done to the dead man causing pecuniary loss to the dependants. Whatever may be the meaning of “ sparks ” the plaintiff’s claim includes a claim for loss caused by sparks.

L. B. Cussen (udth him Biisse), for the respondent. Whatever the meaning of “ losses ” in sec. 183 (2) of the Railways Act 1915 may be, an action under Part III. of the Wrongs Act 1915 is not an action for losses caused by sparks, but is an action of quite a different nature {British Electric Railway Co. v. Gentile (7); Union Steamskiy Co. of New Zealand v. Robin (8) ). An action under Part III. of the Wrongs Act 1915 is based on the loss of some expectation of pecuniary gain ; the action referred to in sec. 183 (2) of the Railways Act 1915 connotes the possession by the plaintiff of something which has been taken away from him. The Supreme Court properly

restricted the meaning of “ losses ” to losses of property. The word

“ sparks ” does not include cinders or hve coals.

Ham K.C., in reply, referred to In re Polemis and Furness, VHihy

& Co. (9).

Cur. adv. vuU.

( 1) (1863) 4 B. & S. 396.

(5) (1884) 10 App. Gas. 59, at pp. 70,71.

(2) (1852) 18 Q.B. 93.(6) (1923) A.C. 126, at p. 133.

(3) (1890) 26 L.R. Ir. 289.(7) (1914) A.C. 1034, atp . 1040.

(4) (1859) 4 H. & N. 653.

(8) (1920) A.C. 654, at p. 661.

(9) (1921) 3 K.B. 560.

40 C.L.R.] OF AUSTRALIA.

4.37

The following written judgments were delivered :— H- C. or A.

Knox CJ. The respondent sued the appellants in the County

Court, to recover damages for herself and her children for the death \

ic t o r ia n

of her husband, which she alleged to have been caused by the wrongful

c o m m is -

acta or neglect of the appellants in bringing fire upon the land

occupied or used by them and not taking precautions to ensure that

Sp e e d .

embers or live cinders should not escape from the engines used

Mar. 8.

by them. The appellants then applied to the County Court for an order referring the action to arbitration as being an action for losses caused by sparks from a railway engine. The application was founded on sec. 183 of the Railways Act 1915, which is in the words following:—“ (1) No action against the Commissioners shall be maintainable in any Court of Petty Sessions. (2) Every action against the Commissioners, except actions for losses caused by sparks from railway engines, shall, whatever may be the amount value or damages sought to be recovered, be heard and determined in a County Coiut, unless the Supreme Court or a .Judge thereof other­ wise orders : Provided that all actions for losses caused by sparks from railway engines shall be referred to arbitration.” The learned County Court Judge refused the application on the ground that embers and live cinders were not “ sparks ” within the meaning of the section quoted. An appeal from that decision to the Supreme Court of Victoria was dismissed, the Com-t being of opinion that the word “ losses ” in the expression “ losses caused by sparks ” should be restricted in its meaning to losses of property or losses caused by destruction of or injury to property. It is from that decision that this appeal is brought, and the question for decision is whether the action instituted by the respondent in the County Court is an action for losses caused by sparks from railway engines within the meaning of those words as used in sec. 183 of the Railways Act 1915. In my opinion this question must be answered in the negative.

The provisions of the Wrongs Act 1915 are substantially the same as those of the Imperial Act commonly known as Lord CampbelVs Act. It is indisputable that under those provisions the death of the husband or father under certain conditions is the cause or basis of the action

4 3 8 HIGH COURT

[1928.

H . C. OP A. (JJnion Steamship Co. of New Zealand v. Robin (1) ). The action is in truth an action to recover damages for the injuriously affecting

V ic t o r ia n the interests of the dead man’s family. It arises partly from the

R a il w a y s

partly from a combination of circumstances pecuniary

Co m m is­

s io n e r s

V.           or other with which the person whose alleged wrongful act caused

S p e e d . the death has nothing to do (per Bowen L.J. in The Yera Cruz [î o. 2] Knox C..J.(2) ). In British Electric Railway Co. v. Gentile (3) Lord Dunedin,

delivering the reasons of the Judicial Committee, sa id : “ A suit brought under the provisions of that Act ” {Lord Campbell’s Act) “ is not a suit for indemnity for damage or injury sustained by the plaintiff by reason of the operations of the defendants.” See also

McColl V. Canadian Pacific Railway Co. (4), referred to by my

brother Isaacs during the argument. The authorities to which I have referred seem to me to warrant the proposition that the action brought by the respondent is not an action for losses caused by sparks from railway engines but is an action for losses caused to the family of the deceased by his death, in which it will be necessary for the plaintiff to estabhsh that the death was caused by the wrongful act of the appellants, and in which the measure of damages is different from that which would be apphed in the case of an action by a person injured in his person or property hy reason of the wrongful emission of sparks from a railway engine.

In my opinion the appeal should be dismissed.

I s a a c s , P o w e r s a n d S t a r k e JJ. In this case we assume that

the question before us is to be determined as it would have been immediately before the statute consohdation of 1915. The question is whether Part III. of the Wrongs Act 1915 is to he read as subject to the provisions of sub-sec. 2 of sec. 183 of the Railways Act 1915. That is to say, the problem is whether a proceeding of this character falls within the words of exception in sec. 183 of the Railways Ad, namely, “ actions for losses caused by sparks from railway engines.' The Supreme Court has answered the question in the negative. We agree with that view, but for reasons we shall state.

Since the railways section is being interpreted for the first time, no previous case can govern the result. But there are several

(1) (1920) A.C., at p. 661.(3) (1914) A.C.. at p. 1040.

(2) (1884) 9 P.D. 96, at p. 101.

(4) (1923) A.C., at pp. 132, 133.

40 C.L.R.] OF AUSTRALIA.

439

decisions of supreme authority which very distinctly point the way. H- C. op A.

1928.

They are Seward v. Owner of the Vera Cruz (1), British Electric

Railway Go. v. Gentile (2), Union Steamship Co. of New Zealand v.

V ic t o r ia n

. • .

R a ilw ays

Rolrin (3) and McColl v. Canadian Pacific Railway Co. (4). When

Co m m is­

s io n e r s

the relevant reasoning in these cases is analysed, it is found that the

V.

Privy Council proceeded to inquire whether, having regard to the

Sp e e d .

Powers J. Isaacs J.

special nature and attributes of the proceeding under the Wrongs Act

(or its equivalent), the terms of the other Act could, on one ground

Starke J.

or another, on recognized principles of construction, be properly considered as including that proceeding. Following the lines of investigation that we there find, we arrive at the conclusion we have stated on two grounds, very closely allied to each other in this case; the first is that the words of exception are not in themselves apt to include such an action as the present; the second is that, even if on literal construction the words of exception extend so far, the maxim Generalia specialibus non derogant applies to exclude such an action.

As to the first ground, we think that the words, comprehensive as they are, do not naturally include such an action as this. We are not able to confine the words “ actions for losses caused by sparks from railway engines ” to losses of property. It must be observed that the phrase “ actions for losses ” means “ actions for losses sustained ” ; the word “ losses ” being in no wise a hmitation of “ damages an expression which refers to a claim for money to be recovered. If a surgeon lost by sparks a house, a field of oats, a flock of sheep and a hmb, the latter misfortune precluding him from practising his profession, all these results would legally be “ losses.” He would, by the failure of the defendants to fulfil their duty of care to him, have lost what he was entitled to as of right. Even compensation, so far as it can properly be given, for pain and suffering, represents some reparation for the freedom from pain and suffering to which the plaintiff is entitled (see In re Polemis and Furness, Withy <fr Co. (5) ). In Admiralty Commissioners v. Owners of Steamship Amerika (6) Lord Sumner observed : “ Injury is the

(1) (1884) 10 App. Cas. 59.(4) (1923) A.C. 126.

(2) (1914) A.C. 1034.(5) (1921) 3 K.B. 560.

(3) (1920) A.C. 654.

(6) (1917) A.C. 38, at p. 60.

440 HIGH COURT

[1928.

H. C. or A. gist of any action of negligence ; if the negligence does no damage, ^ ■ no action lies.” We see no reason, therefore, for the suggested

V ic to r ia n

limitation. So far also as directness of result is concerned, we do

R a il w a y s

Co m m is­

not consider that a discrimen. The pecuniary loss arising from

s io n e r s

V.           the surgeon’s inability to practise his profession, is not more direct

S p e e d .than a widow’s loss of an annuity to which she was entitled during

Isaacs J.

her husband’s hfe.

Powers J.

Starke J .

The first ground upon which we exclude this class of action from sec. 183 of the Railways Act, is that naturally and primarily the words “ actions for losses,” &c., mean actions against a defendant for some injuria towards the plaintiff, some breach of an obligation or duty to the plaintiff, whereby the plaintiff has lost something to which he can assert a claim as of right. “ Loss,” the subject of an action to recover damages, primarily implies previous title of some sort. The pecuniary losses for which damages are recoverable in an action of this description are, however, measured by a different

standard. “ Reasonable expectation ” is the standard. THa is

definitely settled by the highest tribunal in Royal Trust Co. v. Canadian Pacific Railway Co. (1); the citation of other cases being imnecessary, except perhaps Franklin v. South-Eastern Railway Co. (2), which contains the fundamental reasoning. But this difference of standard is material for the present purposes, because it is essential to observe that, in order to found a cause of action under the Wrongs Act, the same necessity to establish the appropriate damages exists as in an ordinary case of negligence {Duckworth v. Johnson (3), Kerry v. England (4), The Vera Cruz [iV’o. 2] (5), Th£ Circe (6), Clark v. London General Omnibus Co. (7), Barndt

V.Cohen (8) and Nunan v. Southern Railivay Co. (9) ).

Moreover, the cause of action does not connote any failure of obligation or duty by the defendant to the plaintiff. Indeed, as shown by the authorities referred to, this type of action is sui generis. Secs. 14 to 20 inclusive of the Wrongs Act, as a matter of pubhc policy, enter upon an entirely new region of the law, and make a

(1) (1922) 38 T.L.R. 899.(6) (1906) R 1, at p. 12.

(2) (1858) 3 H. & N. 211.(7) (1906) 2 K.B. 648, at p. 663.

(3) (1859) 4 H. & N. 653.(8) (1921) 90 L.J. K.B. 1307.

(4) (1898) A.C. 742.

(9) (1923) 2 K.B. 703, at p. 7)2;

(5) (1884) 9 R D ., at p. 101.

aff. (1924) 1 K.B. 223.

OF

AUSTRALL4.

40 C .L .R .]

sort of code specially fitted for the case contemplated by the

H. c. o r A.

192S.

legislation. The enactment selects certain classes of persons,

V ic t o r ia n R a il w a y s

creates in their favour a novel right of action, requires a particular

representative plaintiff, except in named circumstances, prescribes

Co m m is­

s io n e r s

a special measure of compensation, which it qualifies in certain

V.

respects, regulates the nature of the tribunal, provides for apportion­

Sp e e d .

Isaacs J. Powers J.

ment where individual interests exist, makes some specific pleading

provisions, and sets a distinctive limit to the time for taking proceed­

Starke J.

ings.

These considerations operate in two ways ;—They show, as we conceive, that as a matter of construction the general words of exception in sec. 183 do not properly include such a proceeding as an action of this character. They also show that even if it be assiuned that the words of exception are broad and general enough in their literal sense to embrace actions of this nature, yet that, by the application of the maxim quoted, they should be read down so as to exclude such actions.

For the first alternative view we would refer for method of reasoning and for analogy, to the judgments in all the cases referred to, including the passages quoted at p. 132 of McColVs Case (1). For the second alternative view, we would cite the judgments of Lord Selborne L.C. and LoidBIackburn in Seward v. Owner of the VeraCruz (2). This alternative, in our opinion, disposes of any possible contention based on the bare and rigid connotation of the words of exception. For the principles and method of applying this solvent, we refer to Bank Officials' Association {South Australian Branch) v. Savings Bank of South Australia (3), and with special reference to the passages there quoted from the judgments of Viscount Haldane and of Viscount Cave in Blackpool Corporation v. Starr Estate Co. (4). The “ individual ” case of Lord Haldane is, in our opinion, specially legislated for in the Wrongs Act, and is not affected by the mere general provisions of the Railways Act.

Ample effect can be given to these general provisions with­ out varying the scheme created by the special provisions of the

(1) (1923) A.C. 126.

(3) (1923) 32 C.L.R. 276, at pp. 289,

(2) (1884) 10 App. Cas., at pp. 68-70,

290.

72-73.

(4) (1922) 1 A.C. 27, at pp. 34, 38.

4 4 2 HIGH COURT

[1928.

H. C. OF A . first-mentioned Act. The later enacted legislation, if held to supplant

the procedural course so far as marked out, by the Wrongs Act,

V ic t o r ia n would or might materially affect, if not destroy, some requirements

R a ilw a ys

Parfiament apparently thought very substantial and necessary

Co m m is­

s io n e r s

V.           to secure justice.

S p e e d .

In our opinion the appeal fails.

Higgins J.

H ig g in s J. I am of opinion that the order of the Full Court of Victoria dismissing the appeal from Judge Woinarski must be affirmed.

My view of the position is that an action under Part III. of the Wrongs Act 1915 (which enacts Lord CampbelVs Act of 1846) does not come within the exception contained in sec. 183 (2) of the Bailways Act 1915. Sec. 183, after forbidding any action against the Commissioners being brought in any Court of Petty Sessions, prescribes that whatever the amount, &c., involved, any action against the Commissioners must be brought in the County Court— “ except actions for losses caused by sparks from railway engines ” ; and such excepted actions have to be referred to arbitration. In my opinion, an action under Lord CampbelVs Act, being a special statutory action, designed to give, not a right of action to the victim of the accident, but individual rights to the widow and children to sue the wrongdoer for the damage incurred by them respectively by the death of the breadwinner, is not covered by the description of “ action for losses caused by sparks from railway engines.” The fact that in the chain of antecedent conditions the death of Speed would not have occurred but for the emission of sparks from the engine does not make the emission of sparks from the engine the cause of the damage to the widow and children. The cause or basis of the action of the widow and children is the death of Speed, accompanied by pecuniary loss to them ; and, even if the fire was the cause of Speed’s death, it cannot be said that their “ losses ” were “ caused ” by the fire. As the maxim sap, In jure non remota oausa sed proximo spectatur. It is not enough to show that without the fire the family’s losses would not have been incurred—a causa sine qua rwn, to use the metaphysical jargon;

40 C.L.R.] OF AUSTRALIA.

443

what we have to find is the causa causans, the efficient cause, as C.

or A.

1928

distinguished from any necessary conditions (see Bourke v. Butterfield

__

V ic t o r ia n

S Lewis Ltd. (1) ).

R a il w a y s

I am assuming in favour of the Commissioners—and I think it

COIVIMIS- SIONEBS

is a right assmnption—that if the fire was caused by cinders or

V.

ashes it was caused by sparks within the meaning of the section.

Sp e e d .

The learned Judges of the Full Court have all concurred in the

Higgins J

view that the word “ losses ” in the exception in question must, on the context, refer to losses to property ; and there is no doubt that primarily and generally, if not universally, the losses contemplated by the words “ losses caused by sparks from railway engines ” must be losses in the way of destruction of grass, crops, barns, fences, animals, hayricks, &c. But even if the meaning of “ losses ” is not so restricted—if, for instance, an action for the “ loss of a hand ” by the fire has to be referred to arbitration— ît by no means follows that this action must be so referred. The only one who can bring an action for the loss of a hand is the possessor, the owner of the hand ; whereas rmder Lord CampbelVs Act an action is to be brought by or on behalf of dependants of the person who was directly affected by the negligence and not unless that person has been killed. Therefore I prefer to take the broader view which was suggested by the Chief Justice of Victoria, that the very nature of the action under Lord Campbell’s Act- excludes it from being treated as an action for a loss “ caused by sparks from a railway engine.” Mr. Ham urges that the loss of a husband or father is to be treated as coming under these words just as we should treat the loss of a hayrick. But this argument brings to light the essential difierences between an action brought by the owner of the hayrick (or the hand) and an action brought by the dependants under Lord CampbelVs A c t In the first place, there is no ownership of human beings recognized by British law—even ownership of a husband or of a father. A husband is not yet to be treated as a hayrick. In the second place, under Lord CampbelVs Act the damages are not given to the direct victim of the negligence. In the third place, the loss of the husband and father is not enough to justify the giving of

(1) (1926) 38 C.L.R. 354, at p. 374.

444 HIGH COURT

[1928.

H.C. or A. damages—there must be actual damages proved—“ damages

1928.. . . proportioned to the injury resulting from ” the “ death.”

ViCTOBIAUThe damages are not given for injured feelings or on the grounds

R a il w a y s

Co m m is­of sentiment, but must be for a pecuniary loss actual or prospective

s io n e r s (per Lord HaManeh.C. ia Taff Vale Railway Co. v. Jenkins (\)),

V.

Sp e e d . It may be unpleasant to say so, but some families actually gain Higgins J.pecuniarily by the death of the husband and father; and if there

is no actual loss by the death, no damages, even nominal, can be recovered {Duckworth v. Johnson (2) ). In other words, the mere loss per se of a husband and father does not give any right to damages, even nominal, under Lord CampbelVs Act. It is quite different if the ha}rrick be lost.

What I venture to affirm is that an action for damages recoverable under Lord CampbelVs Act is not an “ action for losses caused by the sparks from railway engines,” even where it is clear that the death of the breadwiimer (or other person having dependants) is due to fire caused by such sparks. The cases cited by the Chief Justice of Victoria seem to bear this position out amply ; and there is another more recent case before the Judicial Committee of the Privy Council which is clear on the subject— Union Steamship Co. of New Zealard

V. Robin (3). There was a law of New Zealand to the same effect

as Lord CampbelVs A c t ; and there was also an Act which gave to a servant injured by the neghgence of a fellow-servant a right of action against the employer, but the damages were not to exceed £500 “ in an action brought under ” the “ Act in respect of the negligence

of a fellow-servant.” It was held that the lim it of £500 did not

apply to an action under Lord CampbelVs Act, even though the death had occurred through the neghgence of a fellow-servant; for in such an action “ the cause or basis of the action is the death of the workman under certain conditions ”—not the neghgence itself.

This fully bears out the statement of Irvine C.J. that an action under Lord CampbelVs Act “ is not an action for damages for neghgence even though the fact that such neghgence caused the death is a condition precedent to habihty ” ; but I may point out that the words quoted in the judgment that the action is “ new ui

(1) (1913) A.C. 1.

(2) (18.59) 29 L.J. Ex. 25.

(3) (1920) A.C., at p. 661.

40 C.L.R.] OF AUSTRALIA.

4 4 5

its species, new in its quality, new in its principle, in every way c. or A­

new,” are to be found first, it seems, not in Pym v. Great Northern

Railway Co. (1), but in Seward v. Ovmer of the Vera Cruz (2), in

V ic t o r ia n

Lord Blackburn’s judgment.

The Chief Justice did not say, so far

SIGNERS

as I can find, that the action under Lord Campbell’s Act “ is not an

V.

action for damages at all,” but, in effect, that such an action ia based

S p e e d .

on a new and anomalous cause and that the damages are assessed

Uiggina J .

“ for death under certain conditions.” As the Judicial Committee said (3), “ the cause or basis of the action is the death of the workman imder certain conditions ” ; and, as Coleridge J. said in Blake v. Midland Railway Co. (4), “ the measure of damage is not the loss or suffering of the deceased ” (which is the loss referred to in sec. 183), “ but the injury resulting from his death to his family.”

The appeal should be dismissed.

Appeal dismissed with costs.

Solicitor for the appellants, F. G. Menzies, Crown Solicitor for

Victoria.

Solicitor for the respondent, A. F. Cunningham, Colac, by E. L. J .

Murphy.

.

B. L.

(1) (1803) 4 B. & S. 396.(3) (1920) A.C., at p. 661.

(2) (1884) 10 App. Cas., at pp. 70-71.

(4) (18.52) 18 Q.B., at p. 110.