Willoughby Municipal Council v Halstead

[1916] HCA 80

22 CLR 352

THE MUNICIPAL COUNCIL OF WILLOUGHBY APPELLANTS

DEFENDANTS, HALSTEAD

ON APPEAL FROM THE SUPREME COURT OF Local Government-NegligenceConstruction and maintenance of drains-Injury to

land-Continuing nuisance-Aggravation of injury-Storm water comtaminated with e-Vindictive damages-Misdirection-Evidence. SYDNEY,

Practice-High Court costs-Appeal from Supreme Court of State-Justices equally Dec. 1. 4, 5,

divided in opinion-Costs of appeal.

The defendants, a municipal authority, so negligently constructed and main- tained a drain, which was intended to carry the storm water from a road on to and through the plaintiff's land, that water accumulated on her land to her injury, and that injury was aggravated by the fact that the water was con- taminated with sewage which, without default on the part of the defendants, entered the drain.

Held, by Griffith C.J. and Barton, Isaacs and Rich JJ., that the jury was properly directed that they might award damages for the aggravation of the injury beyond what they might have awarded apart from the aggravation.

Held, by Isaacs and Rich JJ. (contra by Griffith C.J. and Barton J.), that under the circumstances of the case the jury were properly directed that they might take into consideration the fact that the wrongful acts complained of were aggravated by the way in which the defendants did them, and that they were not limited in awarding damages to making compensation for the pecuniary loss or personal detriment suffered by the plaintiff.

22 CLR 353

Where, on an appeal to the High Court from the Supreme Court of a State, the Justices are equally divided in opinion, the costs of the appeal will, in general, follow the event.

Decision of the Supreme Court of New South Wales: Halstead v. Willoughby MUNICIPAL Municipal Council, 16 S.R. (N.S.W.), 146, affirmed.

APPEAL from the Supreme Court of New South Wales.

An action was brought in the Supreme Court by Maria Halstead against the Council of the Municipality of Willoughby to recover damages for injuries caused by the negligent and improper con- struction of certain drains whereby water was brought upon the plaintiff's land which deposited there mud, silt and sewage. The action was first heard before Ferguson J. and a jury, and a verdict was given for the plaintiff for £360. A new trial was directed Halstead v. Municipal Council of Willoughby 1. The new trial was heard before Cullen C.J. and a jury, who found a verdict for the plaintiff for £350. A motion by the defendants to set aside the verdict and to grant a new trial or to enter a nonsuit or a verdict for the defendants was dismissed by the Full Court Halstead V. Municipal Council of Willoughby 2.

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

The material facts are stated in the judgments hereunder. Knox K.C. (with him Rogers), for the appellants. is bound to prove that the injuries she sustained were occasioned by the wrongful act of the defendants or by its necessary conse- quences. The sewage was put into the drain by the wrongful act of persons who were not authorized by the defendants, and the defendants are not liable for the aggravation of the injury to the respondent thus occasioned (Essendon Corporation v. McSweeney 3 Earl of Harrington v. Corporation of Derby 4 ). The Judge was wrong in directing the jury that they might award vindictive damages. There are no circumstances proved which warrant such damages (Emblen v. Myers 5 ). The mere fact that the Council

115 S.R. (N.S.W.), 161. 216 S.R. (N.S.W.), 146. 317 C.L.R., 524. 4(1905) 1 Ch., 205. 56 H. &N., 54. 22 CLR 354

insisted on doing that which they believed they had a right to do

did not entitle the respondent to recover vindictive damages. Evidence having been given of the state of the drain after the issue of the writ, the Judge should have told the jury that the damages were limited to those which were sustained before then. [Counsel also referred to Whitehouse v. Fellowes 1; Nelson v. Walker 2 Local Government Act 1906, secs. 74 (1), 76.]

[ISAACS J. referred to Darley Main Colliery Co. v. Mitchell 3.] Mack and Milner Stephen, for the respondent. The respondent's cause of action is a misfeasance on the part of the appellants by reason of which filth became concentrated and accumulated on the respondent's land, a result which otherwise would not have occurred. The active misfeasance on the part of the appellants was the improper construction and maintenance of the drain, and but for that improper construction and maintenance the filth would not have been collected as it was upon the respondent's land. If a statutory power can be exercised reasonably so as not to injure other persons, an action will lie for the injury caused by the negligent exercise of the power (McClelland v. Manchester Corporation 4 Engelhart v. Farrant &Co. 5 ). There was evidence that the appel- lants knew offensive matter was being discharged into the drain and that they might reasonably have anticipated such an occurrence. [Counsel referred to Rickards v. Lothian 6; Essendon Corporation V. McSweeney 7; Baron v. Portslade Urban District Council 8; Harrison v. Great Northern Railway Co. 9; Woollahra Council V. Moody 10.]

[BARTON J. referred to Lynch v. Nurdin (11).

ISAACS J. referred to British Columbia Electric Railway Co. V. Loach 12.]

The direction as to exemplary damages was correct. Exemplary damages may be given for the character of the wrong and the way

110 C.B. (N.S.), 765, at p. 782. 210 C.L.R., 560. 311 App. Cas., 127, at p. 143. 4(1912) 1 K.B., 118, at p. 129. 5(1897) 1 Q.B., 240. 6(1913) A.C., 263; 16 C.L.R. 387. 717 C.L.R., 524. 8(1900) 2 .B., 588. 93 H. &C., 231. 1016 C.L.R., 353. 12(1916) 1 A.C., 719, at p. 727. 22 CLR 355

in which it has been done (Bell v. Midland Railway Co. 1; Emblen V. Myers 2 ). It must be shown that the jury took the wrong measure of damages, and that has not been done. The damages are not so large that no reasonable jury could have given them; therefore a new trial should not be granted (Miles v. Commercial Banking Co. of Sydney 3 ). [Counsel also referred to Rowe V. Australian United Steam Navigation Co. 4; Thompson v. Hill 5 Lunt v. London and North Western Railway Co. 6.]

Knox K.C., in reply, referred to Salmond on Torts, 4th ed., p. 123; Cox v. Burbidge 7.

Cur. adv. vult, The following judgments were read :-

GRIFFITH C.J. This is an action for damages alleged to have been occasioned by the negligence of the appellants in the execution of their statutory powers, and resulting in a nuisance. The locality is a suburb of Sydney in which settlement has recently progressed. The local features of the land were a declivity sloping from north to south, across which a street called Penkivil Street, running from east to west, had recently been formed. The plaintiff's land abuts on this street on the south. In the natural condition of the land any rain water which fell on the slope on the northern side of the street flowed along a natural depression through the plaintiff's land to lower land to the south of it. In 1911 the defendants made up Penkivil Street (which had previously been partially made on the north side) to its full width, including a footpath, and built a retaining wall abutting on plaintiff's land. In order to carry off water flowing from the north they laid an eighteen-inch pipe-drain under and across the street and through the retaining wall to plain- tiff's land, and, in execution of a power conferred on them by the Local Authorities Acts, excavated in continuation of the pipe a drain or ditch along the depression in the plaintiff's land to its southern boundary. It was said, and much evidence was adduced

130 L.J. C.P., 273, at p. 280. 230 L.J. Ex., 71. 31 C.L.R., 470. 49 C.L.R., 1, at p. 23. 5L.R. 5 C.P., 564. 6L.R. 1 Q.B., 277, at p. 281. 713 C.B. (N.S.), 430. 22 CLR 356

to show, that before 1911 the plaintiff had raised the level of her

land to a large extent. In my opinion this fact, if it be one, is immaterial. The filling up of her land was a natural and proper use of it, and when the defendants brought water through the pipe- drain on to her land they were bound to make provision by an adequate drain for carrying it further, and the adequacy of such a drain would not depend upon the original but upon the then existing condition of the surface. The plaintiff alleges that by reason of the insufficient size and faulty construction of the drain-pipe it did not carry off heavy rainfall, in consequence whereof large quan- tities of water which could not find passage through the pipe accumu- lated against the retaining wall, and flowed round its ends on to and across the plaintiff's land, while the water that did pass through the pipe excavated holes upon her land, which became full of water that owing to the defective condition of the drain was unable to escape and became stagnant and offensive.

The jury found, upon evidence sufficient to support their verdict, that the pipe-drain was defective in both respects. What then was the negligence, i.e., the breach of duty, on the part of the defendants? It consisted in causing a flow and accumulation of water to and upon the plaintiff's land by reason of their want of care in construct- ing works which, if properly constructed, would have been sufficient to avoid the consequences complained of. If the works had origin- ally been constructed with due care the defendants would not have been liable for misfeasance. If the works, having been originally constructed with due care, had been kept in an efficient condition no damage would have ensued. But, if a constructing authority, although it is not in default in the original construction of a work, allows the work to fall into a defective condition, it is guilty of misfeasance and not mere non-feasance (Municipal Council of Sydney V. Bourke 1; Essendon Corporation v. McSweeney 2 ). A con- structing authority whose work is originally defective and continues to be defective is in no better position. Moreover, the defendants were bound, not only to take care that the pipe-drain by which the water was conducted on to the plaintiff's land was sufficient to allow a free flow of all the water through it, but also to maintain the drain

1(1895) A.C., 433, at p. 441. 217 C.L.R., 524. 22 CLR 357

which they had excavated on plaintiff's land, in a fit state to allow of the flow of the water from the end of the pipe-drain to the lower land. Upon the evidence it must be taken that they failed in both WILLOUGHBY duties. Under these circumstances they were, in my opinion, guilty of a continuing act of misfeasance for which they are respon- sible toties quoties.

A person who commits a wrongful act that causes damage is liable both for any such damage as he intended to cause and for any such damage as might reasonably be anticipated as a natural con- sequence of the wrongful act.

After the making up of Penkivil Street and the construction of the retaining wall the water that came through the pipe-drain was conducted into it from downpipes in the water tables, and conse- quently carried with it such impurities as are ordinarily found in surface water SO collected. It was proved, however, that the water which actually passed through the pipe-drain was further contamin- ated by slop water and house refuse which in fact ran into the water- tables, and the plaintiff's complaint rests in great part upon this aggravation of the nuisance of which she complains. The defendants contend that they were not responsible for the aggravation. If the pipe-drain and the drain at its outlet had originally been properly constructed I think that this contention would be sound, unless it were shown, which it was not, that they were responsible for the flow of the slop water and house refuse into the water-tables (Attorney- General v. Dorking Union 1 ). In that case the complaint them would have been for mere non-feasance. But, for the reasons I have given, I think that this contention is irrelevant. Their wrong- ful act was renewed from day to day, and they are responsible for any damage reasonably to be anticipated at the actual time and under the actual circumstances as a natural consequence of it. These circumstances included the fact that the water which would flow through the pipe-drain and accumulate on the plaintiff's land would be, no matter by whose default, contaminated,

The learned Chief Justice directed the jury that " if the Council were in default in bringing flood water on plaintiff's land, the dirty water coming on the plaintiff's land would be an aggravation.

120 Ch. D., 595. 22 CLR 358

If the Council were not in fault in bringing flood water upon the plaintiff's land, then there has been no evidence to make them a party to the bringing of slop water upon it. It would simply mean someone had done a wrong both to the Council and to the owner."

For the reasons I have given I think that under the circumstances of the case this direction was not open to objection.

Another objection. taken to the direction of the learned Chief Justice was that he directed the jury that they might in awarding damages take into consideration the fact that the wrongful acts complained of were aggravated by the way in which the defendants did them, and that they were not limited in awarding the damages to making compensation for the pecuniary loss suffered by the plaintiff or for the detriment to her health. No formal objection was taken to the direction on this ground, but I cannot help thinking, having regard to the scanty evidence as to pecuniary loss and as to injury to the plaintiff's health, that the jury must have taken these other matters into consideration.

In my opinion there was nothing to justify the awarding of vindictive or punitive damages. The cases relied upon do not touch the case of a nuisance caused by the bona fide but mistaken exercise of powers by a public authority. If the ratepayers of a municipality are to be held responsible for the personal discourtesy of the municipal servants in carrying out their orders a new liability, of which the reported cases afford no instance, would be cast upon them. In the case of Knight v. Egerton (1), followed by this Court in Miles v. Commercial Banking Company of Sydney (2), it was held that it is the duty of the Court to instruct the jury correctly as to the measure of damages, whether the point is taken by the defendant at the trial or not, and that an omission to do SO is ground for a new trial.

The appellants are, therefore, in my opinion, entitled in law to a new trial, which might, however, be limited to a reassessment of damages. But it would be much to be regretted that the expense of a third trial should be inflicted upon the parties if it can be avoided. The defendants, at best, would obtain a reduction of damages and escape payment of the costs of the new trial motion.

(2) 1 C.L.R., 470.

22 CLR 359

On the other hand, they might have to pay their own costs of this appeal and the plaintiff's costs of the reassessment of damages. Such a position would be eminently one for amicable settlement. WILLOUGHBY But, as I understand that two members of the Bench are of opinion that the summing-up of the learned Chief Justice on this point was right, SO that the Court is equally divided, the decision of the Supreme Court will stand, and the appeal must be dismissed.

BARTON J. I have had the advantage of reading the judgment just delivered, and I agree with it. As it appears to me to cover the ground completely I refrain from adding anything.

ISAACS and RICH JJ. Several questions have been argued, but none of them presents serious difficulty.

The jury found a general verdict for the plaintiff which on the Judge's charge means: (a) that the defendants were negligent both as to the original construction of the drain through plaintiff's property and as to its maintenance; (b) that this neglect occasioned a nuisance arising from the ordinary storm water remaining on the plaintiff's land by reason of the defendants' negligence; (c) that the plaintiff had not occasioned or contributed to the nuisance by stopping up the drain or otherwise.

It was contended by the defendants (appellants) that there was no evidence to sustain these findings, or that the verdict was against the weight of evidence. It is sufficient to say, there was abundant evidence upon which a jury could reasonably find its verdict, in respect of all those questions.

Another point taken was that the jury were told that thev might give aggravated damages for the sewage that was sent on to the land by private owners. In this connection it was complained that evidence had been admitted as to the sewage being allowed to pass from private residences into other public drains and channels and thence into the defendants' drain upon the plaintiff's land. When, however, the whole of the charge is looked at, it is evident that the jury were told in effect (1) that they could not find any cause of action against the defendants by reason only of the sewage in question being allowed to enter the public channels and so passing on to the land of the plaintiff, and (2) that they might give aggravated-

22 CLR 360

that is, additional-damages for the contaminated condition of the

storm water beyond that which they would have given if the storm water had not in fact been SO contaminated. Both directions were right. As to the first: unless the private owners had been per- mitted," that is, authorized expressly or impliedly, by the Council to pour sewage into the drain, SO as to make the Council a participant in the act, the Council would not be liable for the mere fact that the sewage passed to the plaintiff's land (Malzy v. Eichholz 1 ). As to the second while the passage of the uhauthorized sewage would not per se give a cause of action against the Council, it is quite a different matter where the cause of action already exists by reason of the Council negligently leaving storm water on the plaintiff's land SO as to be a continuing nuisance and with full knowledge that it has been rendered foul, and is day after day over a substantial period of time being rendered foul, by persons pouring sewage into the drain. The water SO remaining, whether contaminated or not, should have been removed by the Council. They knew, or ought to have known, of its filthy condition, and still left it. This entirely distinguishes the case from Attorney- General v. Dorking Union 2. They are, in our opinion, responsible for the damage naturally resulting from leaving their own faultily constructed and improperly maintained drain in the state in which it was to their actual knowledge. The quantity and concentration of filth-impregnated storm water on the plaintiff's land was mani- festly greater than would have been the case had the Council been altogether inactive in relation to the drain. That is not mere non-feasance. (See McClelland v. Manchester Corporation 3 ). In our opinion the position as to this is simple, and does not call for any extended examination of authorities.

A further objection was made that the jury were told they could take into account the way the Council acted. It must be remem- bered that the summing-up of a Judge must always be taken with reference to the circumstances of the case and to the evidence (Lambkin v. South Eastern Railway Co. 4 ). Assuming without deciding (see Mayne on Damages, 8th ed., p. 52) that, if nothing but

185 L.J. K.B, 1132. 220 Ch. D., 595. 3(1912) I K.B., 118, at p. 133. 45 App. Cas., 352, at p. 356. 22 CLR 361

mere negligence affecting property were charged, that would be sound, it must be remembered here that there is something more than mere negligence proved; it is negligence resulting in a con- tinuing nuisance, which the Council must have known was occasioned and renewed daily for some time. The distinction between mere negligence and nuisance, however arising, is illustrated by Pullbach Colliery Co. v. Woodman 1. That, the jury may have thought, indicated some disregard of the comfort and even health of the plaintiff-which affects the person as distinguished from the property of the plaintiff-in not using the powers which the Council undoubtedly possessed of repressing the evil. (See Mayne on Damages, pp. 51 to 53).

Still a further objection was urged, namely, that evidence was admitted as to the condition of the premises after the date of the writ. This is answered by the note of the Chief Justice at the trial as to the basis in which this evidence was admitted 2.

As to the amount of damages: the plaintiff, if her evidence is true, and of this the jury were the proper judges, was seriously affected in health, greatly discommoded, and sustained some deterioration in the value of her property. The damages are liberal, no doubt, but not SO extravagant as to come within the power of a Court to declare them excessive.

On the whole we are glad to be able to come to the conclusion that consistently with adherence to legal principles the ruinous disaster of a third trial is not imperative, and that, in our opinion, the appeal should be dismissed with costs.

GRIFFITH C.J. With regard to costs, the Court is of opinion that where the Justices are equally divided in opinion the rule that costs should follow the event should, in general, be followed rather than the conventional rule adopted by the House of Lords that in such a case there should be no costs.

Appeal dismissed with costs. Solicitors for the appellants, Ash &Maclean. Solicitors for the respondent, McElhone &Barnes.

1(1915) A.C., 634, at p. 638. 216 S.R. (N.S.W.), 146, at p. 149.