Benalla Shire v Cherry [1911] HCA 45

condition, and that duty is towards persons, or owners of animals, highway for the ordinary purposes of a highway.

traffic, a municipal authority constructed an open drain with slopi which was about 4 feet deep at the deepest part, where an undergro discharged into it the drainage from another part of the road, and ran a shallow depression at the other end. The drain was 15 inches wi

bottom and at the deepest part was about 5 feet wide at the plaintiff's horse having escaped from a paddock, wandered to this entered the drain at its shallow end, walked up it to the deepest

being extricated. The deepest part of the drain was protected to : extent by fences, but the lower end was not fenced across. In an a the plaintiff against the municipal authority to recover damages,

breach of duty, and that even if it were the injury complained of did ot arise in consequence of such breach.

"Decision of the Supreme Court of Victoria: Cherry v. President ce. of the Shire of Benalla, (1911) V.L.R., 183 ; 32 A.L.T., 174, reversed.

EAL by special leave from the Supreme Court of Victoria. 'An action was brought in the County Court at Benalla by wd Cherry against the President, Councillors and Ratepayers e Shire of Benalla, claiming £50 damages for the loss of his e caused by the alleged negligence of the defendants in the truction and maintenance of a drain upon a street within the into which it was said the horse fell and, being unable to out, died. The facts are fully set out in the judgments hereunder. he Judge of the County Court found that the drain in ques- was a nuisance, was highly dangerous, and was a trap ; that a horse got in, it could not get out; that the horse had got to the drain where it was shallow and, wandering up to the ep part, had got jammed, and being unable to get out, had died exposure; that anyone could see that the accident was ely to happen; that the horse had escaped from a safe and e paddock where it had been put by the plaintiff; and that was no contributory negligence on the part of the plaintiff. mn these findings the Judge entered judgment for the plaintiff £41 with costs. he defendants having appealed to the Supreme Court, that it by a majority dismissed the appeal: (Cherry vy. Presi- t de. of the Shire of Benalla (1) ). om this judgment the defendants now, by special leave, led to the High Court.

lethbridge (with him Cussen), for the appellants. The drain lawfully made, and the accident was not one which the ndants could be called upon to provide against. Their only is to guard against accidents which might reasonably be n,and they have no duty to guard against wholly im- le accidents: Pearson v. Com (2). Even if the defendants 911) V.L.R., 183; 32 A.L.'T., 174. (2) 2 C.P.D., 369.

feld, that the municipal authority was not shown to have been guilty of H. C. or A.

H.C.or A. should have guarded against the only probable danger wh:

might arise from this drain, namely, that a horse might fall the deep part, and therefore should have fenced in that pa it, the present accident could equally have occurred if that been done, so that the injury complained of was not caused the breach of duty. In that view it is immaterial whether horse was lawfully or unlawfully upon the highway: Harrold Watney (1). But the respondent's horse was a trespasser and unlawfully upon the highway, and therefore the defendants o no duty to the respondent in respect of it: Grand Trunk Rail-

shire Ruilway Co. v. Wallis (3), unless the obstruction is a in the sense that it amounts to an invitation: Bird vy. Holb (4); Lynch v. Nwrdin (5). [GrirFirH C.J. referred to Lowery v. Walker (6) ]. [Counsel also referred to Watkins v. Great Western Railw Co. (7); Davies v. Mann (8); Deane v. Olayton (9): Blyth Topham (10) ; Pollock on Torts, 8th ed., 437].

Paul (with him Cohen), for the respondent. The appella owed a duty to the respondent to take steps to prevent #l happening of this kind of accident. This excavation is as m a pit dug in the street as a drain, and the digging of it wa wholly unlawful. It is found to be a nuisance and a trap, a the evidence supports that finding. Under sec. 15 of the Polic Offences Act 1890 the appellants, in not fencing and lighting t hole, were guilty of an indictable offence, so that the leaving unprotected was an unlawful act and it constituted a nuisan The appellants should have foreseen the probability of such accident happening and should therefore have taken reasonal steps to prevent it. The respondent's horse was not a trespa and was not unlawfully on the highway so far as the appellants are concerned. The appellants are not the owners or occupie the roads in their district except for the purpose of impoundin,

(3) 14C.B., 213; 23 L.9.0.P., 85. (8) 10 M. & W., 546.

t have impounded the horse does not make its presence d unlawful. [He referred to the Pownds Act 1890, sec. il Government Act 1903, sec. 498, 13th Schedule, Part L., 1.41; Main v. Robertson (1); Municipal District of Lv. Coles (2); Municipal Council of Sydney v. Young

'idge referred to Harrison v. Duke of Rutland (4).]

a reasonable thing for the appellants to expect that id trespass upon the road. The user of a road is not d to passing and repassing: Hudwell v. Righton (5). If the appellants did was an unlawful act or a nuisance they for injuries caused to persons who are trespassers. [He to Ponting v: Noakes (6); Ilott v. Wilkes (7); Bird v. le (8); Jordin v. Crump (9); Harrold vy. Watney (10) ; President ke. of the Shire of Kyneton (11); Boyle v. ut ke. of the Shire of Mornington (12); Munchester, und Lincolnshire Railway Oo. v. Wallis (13); Fawcett -and North Midland Railway Co. (14); Charman v. astern Railway Co. (15).] Whether it was reasonable or e appellants to have taken precautions against an f this kind happening is a question of fact, and there is idence to support the finding that it was. [He also to Unger v. President &e. of the Shire of Eltham (16); Iv. Paddington Borough Cowncil (17).

ige,in reply. Sec. 15 of the Police Offences Act 1890 lies to a hole made for an extraordinary purpose, and drain lawfully made by a municipal authority to drain a See Police Offences Act 1890, sec. 96. A person com- f a public nuisance must show a particular injury to himself from that nuisance: Clerk and Lindsell on

ernment Act 1903, sec. 497. The fact that the appel- H.C. or A.

H.C or A. Lorts, 5th ed. p. 28; Mayor of Colchester v. Brooke (1);

v. Metropolitun Railway Co. (2). If this drain amount nuisance to persons lawfully using the highway, no ri action is given to a person using the highway for unlawfu poses, or for other than the purposes of a highway: Barl Herbert (3). saa Our. adv.

GrirritH C.J. This was an action in a County Court the appellants claiming damages for the loss of a horse sustained injuries from which it died owing to the neg! wrongful construction or maintenance of a drain on a hi in the shire which the appellants governed. The place wl the damage was sustained is the end of a street called Deas Stre in the country town of Benalla. The street, according plan, is about 14 chains in width running from west to ea: : the part in question is a cul de suc about 44 chains long, inating at a public reserve. The footpaths have been for both sides leading to the reserve, and on the southern sic one or two houses. From that description it is evident place is not used for through traffic, but we are told that y to the reserve tie up their horses to the fences on ea The surface of the street is slightly worn by traffic in the but the rest is covered with grass. The slope is from east. On the north side of the street the council constra open drain into which a 15 inch underground pipe comi the westward discharged at a depth of about 4 feet fi surface. The drain then ran from west to east for | chains at a slope less than that of the natural surface, so" the depth gradually diminished to 18 inches. It then shallow depression obliquely across the street, terminati a culvert going under a footpath crossing the street ne end and opening at one end into the reserve. At the extremity of the drain the defendants placed a guard fen the end and other fences extending about 11 feet on ea of the drain. The width of the bottom of the drain is ab

(1) 7 Q.B., 339, at p, 377. (2) 5B.&S., 149, at p. 1 (3) 27 T.L.R., 252, 488, :

out a quarter of a mile away at 2 p.m. on a Sunday,

ing 5 feet. It appeared from the footprints that the horse ked up the drain from the lower end, and, being unable

sted itself so much that it died soon after being extricated. intiff said that the paddock in which he had put his horse ons, but he admitted that the horse had been out of it d on the street. the law of Victoria as to impounding the council are for bury oses of impounding to be deemed the owners or occupiers ts in their shire. There can be no doubt that the horse respassing and was liable to be impounded by the council. uunty Court Judge thought that the drain was a nuisance hat the appellants were liable. On appeal to the Supreme it was contended, amongst other points, that, as the horse right to be on the road, the appellants were not liable for njury that the horse might sustain, but the majority of the

ants were guilty of a nuisance - by which I understand o mean an indictable nuisance. A great number of cases hich trespassers or the owners of trespassing animals had ied damages in actions have been cited, but in all those except in Barnes v. Ward (1), the defendants had failed in 'ormance of a statutory duty. Barnes v. Ward (1) was a here the defendant had dug a hole on his land on the . of a public street without fencing it in, and a person lawfully walking along the road fell into the hole and was That hole no doubt was a nuisance. But, if the person 11 into the hole had been trespassing on the defendant's d coming across it to the road, the result no doubt would

n different. In this Court Mr. Paul, who argued the ry ably for the respondent, urged first of all that the its were guilty of a breach of a statutory duty, relying 5 of the Police Offences Act 1890 which provides that : -

thought that that circumstance was immaterial since the

ughout. The plaintiff's horse was placed by him in a H- ©. or A,

e following Monday morning was found in the drain at Beata where it was about 8 feet 9 inches deep, the width at the CoRPoRa-

tried to scramble out, and in doing so strained and S™Mth C4.

"If any person commit any of the next following offence: shall on conviction forfeit and pay a penalty not exceeding hundred pounds.

"(ii.) Leaving any hole excavation or dangerous format or near any publie place or thoroughfare without fencin| enclosing the same or keeping a light burning upon enclosure from sunset to sunrise."

It is very doubtful whether that section would apply municipal corporations such as the defendants, but it is necessary to consider that point because sec. 96 of the same provides that : - " Nothing contained in Parts I. and IL of Act shall take from lessen or alter any powers or privil now possessed by or which may hereafter be given to any porate body; but the same may be exercised and enjoyed to same extent as if this Act had not been passed." See. 15, thi fore, which is in Part IL, has no application, and that argu fails.

In my opinion the Supreme Court - and I say so with

• fell into the error of tteating the case as one in which tl appellants were clearly guilty of an indictable nuisance. - ordinary person who digs a hole in a road is, of course, guilt an indictable nuisance, but it is the duty of the appellant dig holes in roads for certain purposes. When they disturbe the surface of the street to make this:drain they were doing th duty, and were not breaking the law. They had power to m the road and dig the drain, so that no objection can be taker the making of the excavation itself. The only complaint thi can be made is as to the omission to fence the excavation. T! duty in that respect was a duty to do whatever was reasonab necessary to prevent persons or animals likely to use the road the ordinary purposes of a highway from suffering injury reason of the hole in the course of that use. A muni authority does not warrant the absolute safety of a highway every person using it, and they certainly are not bound to | precautions for the protection of persons who propose to use roads as a racecourse or a grazing paddock. I will assume th mere error on the part of the council in this respect woul sufficient to justify a conviction for an indictable nuisance. I.

it does. Still the question in this case is whether there ant of reasonable care. When the question of what is able arises, regard must be had to all the circumstances of including the place where the accident happened, and \de of user of the place. The extent of the area under the rol of the municipality and the means at their disposal may material for consideration. The precautions to be taken, ly suggested, are only against such injuries as may be ly anticipated in the absence of precautions. As was y Brett LJ. in Pearson v. Cox (2), you need not take pre- ns against things that are not likely to happen.

recaution suggested here is the running of a fence along ide of the drain for its whole length. I think that, having to the nature of the place, that would be a highly mable thing to expect the appellants to do. The place is n used except in daylight, and is used by persons acquainted its condition. It is extremely unlikely that any person along the road to the reserve would fall into the drain, or nyone crossing it would fall into it or, if he did, would be |. In my opinion there was no evidence of want of reason- care fit to be left to a jury on a charge of an indictable ce. But suppose there were, there is still another position of answer to the claim, namely, that there is no connec- tween the omitted precaution and the accident. Suppose t two fences were erected along the dangerous part of the then, unless the lower end were blocked up, the horse still have got up the drain, and I do not think it could be sted that the whole of the drain should have been sur- ed by afence. It is therefore unnecessary to decide the on which the Supreme Court thought the crucial question, , Whether the mere fact that the horse was trespassing be fatal to the plaintiff's claim. 'The general rule as to ers is laid down in Grand Trunk Railway of Canada v. (3), but it is not necessary to express any opinion on the

fi (1) 11 Cox €.C., 399. (2) 2C.P.D., 369, at p. 373. : (3) (1911) A.C., 361.

at Reg. v. Burt (1) supports that view, but I doubt H.C. oF A.

For these reasons I think the appeal should be allowed. case is of importance, not exactly on the point upon - special leave to appeal was granted, but as to the rules that be applied to and govern municipal authorities in the execu of their statutory duties.

Barton J. read the following judgment : - I am of the opinion, and rest my conclusion on the ground that the de ant shire was under no duty to the plaintiff to make provi the construction and maintenance of the drain against di occurring to him in respect of his horse when straying o street. I fail to see how the shire can be under any such to persons who cannot be supposed to be using the road for purposes of a highway. This is not an accident which likely to happen that its probable occurrence ought to be in contemplation of a reasonable person or body charged wi duty of maintaining the highway. There was not, ther any duty to make provision against it. I have nothing to except to repeat the concluding words of the judgment of LJ. in Pearson v. Cox (1), which I think are applicable case : - " When there is no evidence that the accident is one wl would probably happen, then if the jury were to find that one was bound to guard against a wholly improbable accid that is not a conclusion which a reasonable man would com There was no such evidence." That passage expresses opinion in the present case. '

O'Connor J. I am of the same opinion. I cannot thinking that the learned Judge who delivered the judgm the majority of the Supreme Court was misled into attacl too much importance to the cases cited to him dealing witl rights of trespassers on highways. The considerations 1 which those cases proceeded seem to me to have no applicati the present case. I need not refer to the facts, which hav fully set out in the judgment of the learned Chief Ji Shortly stated, the position was this: The locality, having to its use and its situation, was not, except in name, a hi

lants liable for the horse getting into the drain. But circumstances in which the horse did become injured it that the plaintiff had a right to bring this action. He 'ight upon the following ground. He says that his h strayed upon the highway was there under such ces that the plaintiff was entitled to have the drain md maintained that no injury should occur to the le so straying. I assume that the horse was on the without default on the part of the plaintiff, and also ich places as this horses may be expected occasionally to the highway. Persons are entitled to drive cattle and n the highway, and it is well recognized that cattle and shout default of their owners may get loose on the y, or may wander there. Under these circumstances the | arises, what is the duty which those in charge of the s owe to the owners of the animals ?

for the plaintiff was put on two grounds, nuisance ligence. It was charged that the drain was a nuisance, ise it was constructed and maintained in violation of ce Offences Act 1890, sec. 15, that under the provisions section the excavation ought to have been fenced. I agree at section can have no application to a case of this kind. of the Police Offences Act in which that section occurs ly made applicable to the whole of Victoria. If the

oubt by the provisions of sec. 96 of the Police Offences which expressly declares that the provisions of the Act 10 way interfere with the rights and obligations of bodies under other Acts.

it be said that the drain is a nuisance as being a hole

ighway. And it is clear that to persons using it H.C. or A.

H.C. or A. dug in a highway, because the very duty for which a lo

is constituted is to make drains of that kind which are ne to carry water off the highways. The only way in which it be said that the defendants are liable is that they are un obligation to use due care in the construction and mainten:

works of this kind. We may take it that it was nece: 1 have the drain constructed. It is not complained that it w: constructed in a proper way, but it is said that it ough have been fenced. What is the duty of a local body in toa drain across a highway? A local body is bound to m tain a road as a highway, and owners of horses, whether are driven or allowed to wander, have no greater regard to the highway than persons who use it for passin, repassing. They have no right to use the highway as a p for horses to graze in. The only right they have is to d that the highway shall be a safe place for its ordinary use highway, namely, for passing and repassing without dang is obvious that if the road had been used merely for the p of the horse passing and repassing there would have be danger. The danger really arose because the horse walked the drain and up it, going in at the shallow part and becon involved in the impossibility of getting out at the deep p where he attempted to jump out and failed. Under

been prevented was by fencing the whole of the drain. obvious that the shire cannot have that duty imposed on under the circumstances proved. There can be no obligati so far as the use of the highway is concerned to put up fence. In my opinion, therefore, the plaintiff has only s that his horse was injured by reason of something which i i not the duty of the local body to provide against. Under tho: circumstances I agree that the appeal must be allowed.

Appeal allowed. Judgment cppealed, reversed. Judgment for the defen in the County Court without co

'or the appellants, F. 7. Hickford for Hamilton H.C. or A. 2 . 1911. << ;, for the respondent, Lamrock, Brown & Hall. BENALLA CoRPoRA- TION BL v.

FEDERAL COMMISSIONER OF } RESPONDENT. AND TE MARION CRACE AND OTHERS . APPELLANTS ; EDERAL COMMISSIONER OF } Reon mn... ; PONDENT.

lations 1911, reg. No. 51 - Amendment - Invalidily - Land tax payable 1911. alee - Tenant for life - Remainderman. -

ae : Sypney, of the Land Yaa Assesment Act 1910 provides that the owner of 417 94 95,

shold estate less than the fee simple shall be deemed to be the owner e fee simple, to the exclusion of any person entitled in reversion or CEE et rs er, and that for the purpose of the assessment of a tenant for life of - _. z 'ithout power to sell, under a settlement made before Ist July 1910, or Oct. 6. the will of a testator who died before that date, the unimproved value | shall be calculated upon the basis prescribed by that section. for life" includes a person entitled to the income of land under a irection for payment thereof to-him during his own or any other life. Griffith C.J.