Benning v Wong

Benning v Wong - [1969] HCA 58 - HCA 1969 case summary — Zoe

But acceptance of the views expressed in these decided cases does not mean that the existence of a statutory authority necessarily precludes the application to the authorized person or body of the common law principles expounded in Rylands v Fletcher [1] and the cases which followed and applied it. If the activities of the authorized person or body bring into existence a Rylands v Fletcher situation then, in my opinion, that person or body must defend himself or itself and in doing so can rely on the statute. In general, but of course depending on the construction of the particular statute, this, as I have said, will involve the authorized person or body in proof that the authorized work was carried out with due skill and care. It will be observed that, whilst the liability which attaches in circumstances covered by Rylands v Fletcher , in the case of a person who has no statutory authority to bring the dangerous thing or substance upon the land, is absolute or as it is said "strict", in the case of a person or body having such statutory authority, the liability where all escapes cannot be prevented becomes in reality a liability for failure to exercise due skill and care in relation to the prevention of the particular escape of the dangerous thing or substance, not as a breach of a duty of care but because only a skilful and careful exercise of the statutory power affords a complete defence. Thus the benefit of the reduction in the otherwise absolute common law liability can only be obtained by the proof by the authorized person or body of the exercise of due skill and care in and about the placement and maintenance on the land of the dangerous thing or substance. That proof in substance really establishes that the act which caused the damage was authorized by the statute, i.e. because unavoidable even by the use of due skill and care, it was necessarily incident to the performance of the act specifically authorized by the statute. I am conscious that in that view little, if any, significance would attach to a "nuisance clause" in an authorizing statute unless it is read as maintaining absolute liability. Unavoidable consequences of the exercise of the statutory authority may be regarded as authorized, though otherwise amounting to a nuisance: avoidable consequences in themselves tortious remain actionable. The "nuisance clause" is nonetheless a useful emphasis included in a statute for more abundant caution. Sir Samuel Griffith in Fullarton v North Melbourne Electric Tramway and Lighting Co Ltd [2] suggests that such clauses are inserted to obviate the difficulty of determining whether or not in any particular case the nuisance which results from an exercise of a statutory power or authority is authorized by the general words of the statute.

[10]

Assuming that the Court is free to look at all the statutes referred to in the Gas and Electricity Act, 1935-1965 [] as the Australian Gas Light Company Acts, 1837-1935 [] (the Acts) some minor considerations arise and with these I shall deal in turn. But putting aside matters of detail, the Acts authorize the opening of public streets and the laying therein of gas mains. The conveyance of gas under pressure is clearly authorized and in relation to street lighting within the bounds of the City of Sydney as they stood in 1837, perhaps required. Of course, it cannot be within judicial knowledge that with the utmost of care it is impossible to prevent the escape of gas from gas mains. It probably could not be so known that in Australia or, at any rate, in the temperate part of it, that it is impossible notwithstanding the exercise of due care, to prevent water mains from bursting though this might be concluded from evidence as it would seem to have been in Cox Bros (Aust) Ltd v Commissioner of Waterworks [1] . The Acts do contemplate that gas may escape but expressly provide that the escape shall be immediately terminated, quite apart from resultant damage. In my opinion, it could not be said without evidence that the escape of gas from gas mains is an unavoidable incident of laying and using gas mains. If it cannot be so said, it follows, in my opinion, that the Act does not absolutely protect the operator of the gas main from the consequences of the escape of gas in all circumstances from the main laid in pursuance of the powers it gives. Or put the other way, the operator of the main cannot, in my opinion, rely simply upon the statutory authority to lay and use the main as a defence to an action within Rylands v Fletcher [2] for the escape of gas but must establish the exercise of due care in the laying and in the use of the gas main from which the escape has come. The statute may protect the operator from some escapes of gas, namely, those which due care could not avoid, but not from all escapes. As I have indicated, these are but two sides of the one basic proposition that in general a statute in authorizing the doing of an act requires as a condition of the grant of the authority, the exercise of due care in performing the authorized work.

[14]

If taken strictly as a matter of common law pleading the demurrer falls for decision, in my opinion, on the footing that no more is known of the statute mentioned in the count than that it authorized the laying of the pipes in the public street and the supply of gas thereby by the defendant. The demurrer then asserts in substance that the mere existence of a statutory authority irrespective of the terms of the relevant statute precludes the existence of the cause of action founded on the escape of the gas from the public street on to the plaintiff's land. That, in my opinion, is a proposition which cannot be maintained. Having regard to the principles of statutory construction to which I have already referred, the statute referred to in the count, its terms not being known, must be taken to have only authorized the laying of the pipes with due care. It was suggested that the assertion in the count, that the work of laying the pipes in the public street for the conveyance of gas was done "pursuant to" the power, was a statement that the work had been done with due care. But, in my opinion, however much a pleading must be read against the pleader, so much cannot be taken from the word "pursuant". It means in the count, in my opinion, no more than that the defendant in laying the pipes or supplying gas through them was affecting to exercise the statutory power it had to lay and to use the pipes. To read the count as alleging that the pipes were laid and maintained with due care, in my opinion, makes nonsense of the pleading and attributes an incredible intention to the pleader. The count alleged an infringement of a common law right by the emergence of gas from the defendant's pipes upon the plaintiff's land, there doing damage. The mere fact of statutory authority to lay and use the pipes did not in my opinion necessarily protect the defendant from suit for that damage. Thus, both as a mere matter of pleading and also as a matter of substantive law the plaintiff's count in the declaration did not fail to disclose a cause of action. Treating the demurrer book as only containing the count and the demurrer, the demurrer must necessarily, in my opinion, fail.

[20]

The language of s. 79 quite evidently has to be accommodated to the grant of a power to place gas mains in public places. But that, as a matter of construction, does not seem to me to raise any insuperable difficulty. Whilst the section cannot be read as leaving the defendant open to an indictment or an action for the mere act of laying the gas mains in public places and there keeping them charged with gas under pressure, it can be read as directing that the statute should not be construed as protecting the defendant from the consequences of bringing gas into pipes in public places where nuisance or injury results. Some weight was laid in argument by the appellant's counsel on a distinction between nuisance and the cause of action founded on Rylands v Fletcher [1] . In my disposal of this appeal I find no need for any exhaustive examination of this matter. Suffice it for my present purposes to say that, as of the date of the decision in Rylands v Fletcher , the suggested distinction would have had no substantial validity. The cause of action was from its conception in the nature of an action for nuisance. Viewed as of this time, the distinction, in my opinion, lacks substance. The absence of continuity or recurrence in the escape of the dangerous thing or substance which might distinguish the cause of action from nuisance, strictly so called, has no bearing whatever, in my opinion, upon the requisites of a defence or justification. If in either case a statutory authority, be that authority put forward as a defence or as a justification, due compliance with the conditions, express or implied, of the grant of that authority must be established as part of the defence or justification. In relation to such a question as is here involved it matters not, it seems to me, whether or not the events complained of are subsumed under the category of nuisance. Nor do I think it matters that the parties thought it of consequence, that those events should not be so categorized. Strangely enough the declaration in this case bears a startling resemblance to the form of a count based on Rylands v Fletcher (precedent 97) to be found in Principles and Precedents of Pleading (NSW) (1961) by A. F. Rath, Q.C., where it is included under the heading of "Nuisance". Also, the escape of the gas in the instant case must in the very nature of things have continued for some considerable time. Accordingly, in my opinion, so far from the Australian Gas Light Company Acts amounting to a statute protecting the defendant from all consequences of exercising the authority given by the statute, it expressly directs that the statute should not be construed so as to do so. Taking the view of the principles involved in this case which I do, it is not necessary for me to decide whether the section maintains absolute liability in the Gas Light Co. It is sufficient for my purposes to say that, in my opinion, at least it emphasizes that the authority given by the statute is only to do the thing it expressly nominates with due care. In the presence of that section I do not think it possible to regard all escapes of gas as necessarily incidental to the work of laying the pipes and operating through them a supply of gas for domestic and industrial use. Whilst, in my opinion, apart from this section the demurrer should be overruled, I am of opinion that the majority of the Supreme Court were right in rejecting the demurrer because of the presence of s. 79 in the Acts to which the defendant claimed that the count referred.

[43]

I have already indicated what it seems to me was decided in Green v Chelsea Waterworks Co [3] . Certainly no question of onus of proof arose in that case. Price v South Metropolitan Gas Co [6] was a case in which a gas company was sued in negligence for failure to detect or remedy an escape of gas from one of its mains which had cracked due to the removal of supporting soil by a person other than the gas company and to the pressure of traffic upon the superincumbent soil. It was said that the proof of negligence was on the plaintiff and that, because of the statutory authority in the gas company to lay the pipe, " "the wild beast" theory referred to in the well-known case of Fletcher v Rylands [7] is inapplicable". The facts in that case had been fully explored and the cause of the cracking of the gas pipe and the resulting escape of gas had been evidenced. The reference to Rylands v Fletcher [5] by Lord Russell C.J., and the quotation I have just made, was in relation to an argument for the defendants that because of their statutory authority to lay the pipes and use them for the conveyance of gas they were "not insurers". Both the argument and the judicial comment upon it were in my respectful opinion accurate in this sense, that the absolute liability derived from a Rylands v Fletcher situation does not apply to a person who has brought the deleterious substance upon the land in pursuance of a statutory authority to do so. The liability arising from such a situation in the case of a person or body statutorily authorized to bring the substance on the land is a liability only for those escapes which the exercise of reasonable skill and care could have avoided. But as I have indicated, it rests upon the defendant in such a case to establish that the escape was of that kind. However, the argument and the comment upon it, were each in my respectful opinion, beside the point in that case. The escape had been established to have been solely caused by acts of some persons other than the defendants so that in any case the defendants would have had a defence to a Rylands v Fletcher claim. Secondly, such a claim does not seem to have been made, for the plaintiff sued in negligence. Thirdly, the negligence was suggested to exist in a failure to take steps to counteract the escape of gas caused by the act of another. The case was disposed of on the footing that there was evidence of negligence in that sense. Lord Russell in so deciding said [1] :

[85]

It was argued that the company were liable by reason of the doctrine in Rylands v Fletcher [1a] , and it was said that this was like the case of a landowner who stores water on his land so as to become a source of danger to his neighbours, and that consequently the defendants were bound to show that they were relieved by the Acts of Parliament under which the company was constituted from the duty of keeping the water in their pipes. The fault of that argument is in the major proposition. Rylands v Fletcher was not a case of a company authorized to lay down water pipes by Act of Parliament. It was a case of a private individual storing water on his own land for his own purposes. There was no negligence on his part, but the principle of that case, as explained by Lord Blackburn in his judgment in the Court of Exchequer Chamber [4] , was that "the person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril; and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape This, we think, is established to be the law, whether the things so brought be beasts, or water, or filth, or stenches," And this is cited with approval by Lord Cairns L.C. in his judgment in the House of Lords on appeal from that court. It is possible that that principle might have been applied to companies having statutory authority to make railways or carry water, but the court has declined to extend it to such cases. Furthermore, the Lord Justice, after referring to Dunn v Birmingham Canal Co [1] , said [2] : It was there held that the defendants were not liable expressly on the ground that the doctrine of Rylands v Fletcher was inapplicable to a company which was doing what it was authorized to do by Act of Parliament. That case is not to be extended beyond the legitimate principle on which the House of Lords decided it. If it were extended as far as strict logic might require, it would be a very oppressive decision. Here the defendant company were only doing what they were authorized to do by their Act, and as they were not guilty of negligence they are not liable for damage. It is possible, as had been suggested in Charing Cross Electricity Supply Co v Hydraulic Power Co [3] , and Smeaton v Ilford Corporation [4] , that the Court of Appeal could have decided the case as it did upon different grounds, but Green's Case [5] is authority for the proposition upon which the Court of Appeal did decide it. This was, not that negligence had been negatived, but, that because the defendant brought the water to the point at which it escaped, Rylands v Fletcher had no application. It appears to me not only was the decision of the Court of Appeal correct, but it has been generally accepted as correct. The reason is that statutory powers are given to be exercised. If, in the exercise of such powers, there is a breach of duty causing damage, that damage is recoverable upon proof of the breach, not upon principles of absolute liability. 1. (1894) 70 L.T. 547. 2. (1894) 70 L.T., at p. 548 and 549. 3. (1868) L.R. 3 H.L. 330. 4. (1866) L.R. 1 Ex. 265, at p. 279; 14 L.T. (N.S.) 523, at p. 526. 5. (1872) 27 L.T. (N.S.) 683. 6. (1894) 70 L.T., at p. 549. 7. [1914] 3 K.B. 772, at p. 781. 8. [1954] Ch. 450, at pp. 476, 477. 9. (1894) 70 L.T. 547.

[87]

Just as negligence must be proved in a railway accident so it must be proved when what is complained of is the manner in which the undertaking is conducted or maintained. So far as authority goes the cases which are collected and discussed in the Irish case of Burniston v Corporation of Bangor [1] , are decisive. Starke J. said [2] : It has also been determined that if works constructed and used under the authority of an Act of Parliament be negligently managed or used, and damage result, the authority or person so managing or using the works is liable for that damage. But the right of action is founded upon negligence, and negligence is the gist of the action. Dixon J. said [3] : In my opinion, it follows from the nature of the defendant's statutory authority that he is not liable for damage caused by an escape of water from his pipes unless he has been negligent, and that proof of negligence lies with the plaintiffs. It may appear unsatisfactory that a water authority should not be responsible unless negligent for damage done by the failure of its mains, but I think that neither principle nor authority sanctions any other conclusion. It is to be observed that these statements, like the statement in Green v Chelsea Waterworks Co [4] refer to work done under the authority of an Act of Parliament; McTiernan J. decided that to succeed the plaintiff must prove negligence upon what, I think, was a somewhat different ground, viz. that in carrying water in its pipes the Commissioner was carrying out a duty imposed upon him by an Act of Parliament. The case is, however, a decision by the majority of the court in favour of the appellant here. To complete the consideration of the case it is necessary to refer to the case referred to with unreserved approval by Rich J., i.e., Burniston v Corporation of Bangor [1] . This decision seems to me to got the whole way in favour of the appellant. The application of Rylands v Fletcher [5] was expressly rejected in a case in which the plaintiff, who occupied a shop, sued a corporation which, under the authority of an Act of Parliament, had brought water in a main along the road past the plaintiff's shop which, as it happened, was damaged by water when the main burst. It was held that to succeed in his action the plaintiff had to prove negligence. Among the authorities relied upon for this conclusion was Green v Chelsea Waterworks Co [4] . The contention that this was a decision which depended upon a duty, rather than upon an authority, to bring water in pipes was emphatically and convincingly rejected. 1. (1894) 70 L.T. 547. 2. (1933) 50 C.L.R. 108. 3. (1933) 50 C.L.R., at p. 117. 4. [1932] N.I. 178. 5. (1933) 50 C.L.R., at p. 119. 6. (1933) 50 C.L.R., at p. 121. 7. (1894) 70 L.T. 547. 8. [1932] N.I. 178. 9. (1868) L.R. 3 H.L. 330. 10. (1894) 70 L.T. 547.

[93]

It is now well-settled law that in order to establish a case of liability against a railway company under such circumstances it is essential for the pursuers to establish negligence. The railway company having the statutory power of running along the line with locomotive engines, which in the course of their running are apt to discharge sparks, no liability rests upon the company merely because the sparks emitted by an engine have set fire to adjoining property. But the defenders, although possessing this statutory power, are undoubtedly bound to exercise it reasonably and properly, and the test whether they exercise this power reasonably and properly appears to me to be this. They are aware that locomotive engines running along the line are apt to emit sparks. Knowing this they are bound to use the best practicable means, according to the then state of knowledge, to avoid the emission of sparks which may be dangerous to adjoining property; and if they, knowing that the engines are liable thus to discharge sparks, do not adopt that reasonable precaution they are guilty of negligence and cannot defend themselves by relying upon their statutory power. This statement of the law has been followed in this Court most recently in Railways Commissioner (SA) v Riggs [1] . In that case Kitto J. said [2] : The statutory authority which the defendant had for using a locomotive engine at the time and place in question absolves him from liability under the rule in Rylands v Fletcher for the escape of fire from his engine. The basis of this statement of the law seems to me exactly the same as that upon which Green v Chelsea Waterworks Co [3] was decided, viz. that to exercise a statutory authority and bring upon land something which will cause damage to adjoining owners if it escapes, i.e. fire in an engine or water or gas in a pipe, does not give rise to strict liability for damage caused by an escape of that which is dangerous but to liability only in the event of negligence being proved. These cases, therefore, do support in principle the non-application of Rylands v Fletcher to a case where the dangerous thing which has escaped has been brought under statutory authority to the land from which it escapes. 1. (1893) 20 Rettie (H.L.) 35. 2. (1893) 20 Rettie (H.L.), at p. 36. 3. (1951) 84 C.L.R. 586. 4. (1951) 84 C.L.R., at p. 600. 5. (1894) 70 L.T. 547.

[97]

I think, however, the two cases cited bind me to decide that the defendants, who have brought for their own profit a dangerous thing, water at a very high pressure, which if it escapes does enormous damage, into a road used by others, are liable if it escapes without their negligence, unless they can bring themselves within one of the exceptions to the doctrine of absolute liability which have been established. Of those exceptions statutory authority, which would under the Chelsea Case [1] be a defence, is excluded by the terms of s. 17 of the Act of 1884. The decision of Scrutton J. was affirmed by a Court of Appeal treating the case as a case of nuisance covered by Midwood & Co Ltd v Manchester Corporation [2] . The Court of Appeal also relied upon Rylands v Fletcher . Lord Sumner, speaking of the defendant said [3] : The Act of 1871 incorporated the undertakers and recited that they proposed to carry on an undertaking that was beneficial to the public. They are not incorporated as waterworks supply companies with an obligation to supply water to the public, but they are given powers of taking water and of laying mains without being under obligation to keep their mains charged with water at high pressure, or at all. This serves at once to distinguish the class of cases of which Green v Chelsea Waterworks [1] was an illustration, where the principle is that if the legislature has directed and required the undertaker to do that which caused the damage, his liability must rest upon negligence in his way of doing it, and not upon the act itself. In the Act of 1871 there was no clause in pari materia with cl. 17 of the Act of 1884, which is: "Nothing in this Act shall exempt the company from any indictment, suit, action or other proceeding at law or in equity in respect of any nuisance caused by them." It is said that, in so far as that section applies, the plaintiffs have to prove that if there was a nuisance the nuisance was caused by the defendants, and it is suggested that it was not caused by the defendants, but by unknown passers-by on the surface of the highway or what not. Lord Sumner, however, came to the same point as Scrutton J. when he said [4] : s. 17 of the later Act should be read thus: "Nothing in this Act" - meaning thereby nothing in this combined Act of 1871 and 1884 - "shall exempt the company from any suit in respect of any nuisance caused by them." If that is so, there is nothing in that defence. Bray J. said [5] : Treating this case, first of all, without regard to the statutory authority which the defendants have, it seems to me quite clear that it comes within the principles of Rylands v Fletcher [6] . His Lordship said, however [1] : Now, if it is within Rylands v Fletcher, the next point is to see whether the statutory power which is given them gives them any protection, and undoubtedly the cases shew that, if statutory power is given without any limitation, that does not protect them, except it be shewn that they have acted negligently. Then comes s. 17, which has been read and which I will not read again. What is the effect of that section? In my opinion the effect of it is, paraphrasing the language somewhat: You may put your pipes on this land, but you are not to be entitled by reason thereof to any protection against claims by other persons who have sustained injuries arising from any actionable nuisance which you may commit, and, therefore, if it be shewn that the plaintiffs have sustained an injury by an actionable nuisance committed by the defendants, then they have no protection. It appears to me that the word "not" between "does" and "protect" should be omitted. A close examination of the case shows, therefore, that it does not take the plaintiff very far. 1. [1913] 3 K.B., at p. 449. 2. (1894) 70 L.T. 547. 3. [1905] 2 K.B. 597. 4. [1914] 3 K.B., at pp. 781, 782. 5. (1894) 70 L.T. 547. 6. [1914] 3 K.B., at p. 783. 7. [1914] 3 K.B., at p. 785. 8. (1868) L.R. 3 H.L. 330. 9. [1914] 3 K.B., at pp. 785, 786.

[103]

And be it further enacted That nothing herein contained shall extend or be construed to extend to prevent any persons from proceeding against the said company or against any of their officers servants or workmen in respect of any works of the said company or the method which shall be employed by them for furnishing such light as aforesaid as a public or private nuisance or for bringing an action against any of the said company or any of their officers or servants or workmen for any injury sustained by reason of any such works or method of lighting whether such injury shall proceed from the nature of such method of lighting or the carelessness or want of skill of the person or persons employed thereon. As I read this section, it means in general that the statute is not an answer where public or private nuisance is caused or to an action for any injury sustained by reason of the works authorized by the Act or the method of lighting adopted by the company "whether such injury shall proceed from the nature of such method of lighting or the carelessness or want of skill of the person or persons employed thereon". To my mind this section imposes no liability upon the company and would not preclude the company from alleging, in an appropriate case, that it had acted under the statute so long as the statute is not invoked as a statutory defence. It appears to me that the section has no application to the question whether count 2 is demurrable. Were the section to be understood to mean that the company was altogether precluded from alleging in its defence that what had been done was done under the authority of the statute the result would be the imposition of strict liability - not avoidable by proof of the absence of negligence - in a case where the general law does not do so. If the defendant cannot rely upon statutory authority to lay pipes and carry gas to exclude strict liability in a case like this it cannot rely upon such statutory authority and the absence of negligence to exclude strict liability. In either case it would be relying upon an identical statutory authority.

[120]

The judgment now under appeal was given on a demurrer. I cannot help thinking that it would have been better if either certain issues of fact had been decided, or some further facts had been alleged in the pleadings, before the question of law raised by the demurrer came up for decision. That question might thus have been made more precise and plain. It would have been useful to know whether the escape of gas is alleged to have occurred from a pipe within the boundaries of the town of Sydney as they were in 1837 or whether it is said to have occurred beyond the boundaries and limits of the City of Sydney as they were in 1858. Upon that depends whether attention is to be directed primarily to the Act of 1837, or to the Act of 1858 which incorporated some, but not all, of the provisions of the earlier Act. It would also have been useful to know in what sense the plaintiff was an occupier of premises. I say these things having in mind the animadversions of the Court of Appeal in the recent case, Radstock Co-operative and Industrial Society Ltd v Norton-Radstock Urban District Council [1] , especially the observation of Sachs L.J. that [2] "any preliminary issue which falls to be tried in the course of an action should always be one in which great care is taken to ensure that the issue presented for decision is well-defined and that the facts upon which it has to be considered are clearly ascertainable". That is as pertinent to a demurrer under the system of pleading under the Common Law Procedure Acts prevailing in New South Wales as it is to proceedings under the system based on the Judicature Acts. The New South Wales system has its merits. A demurrer to a count on the ground that it does not shew a sufficient cause of action may save time and expense at the trial, and it may obviate an appeal later. But the value of this procedure depends upon the pleading demurred to being precise and unambiguous, this being first ensured, where necessary, by the processes of particulars, amendment, or new assignment. As a defendant can now without leave both plead and demur, it is in some cases desirable that if he does so the issues of fact raised on the pleadings be tried before the question of law.

[128]

The count in question states that the Gas Co. was empowered by statute to lay pipes under and along public streets to contain and carry gas, and that it did lay pipes and did use the same to contain and carry gas. This averment was I suppose intended to meet the reference in Rylands v Fletcher to "a person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes". The words "his lands" there are to be read very broadly. I think they mean no more than that the place to which a defendant has brought a thing, harmful if it should escape, is a place which at the relevant time was in his occupation or control. It may be that, because of the words Blackburn J. used, the place must be land. Walsh J., in Miller Steamship Co Pty Ltd v Overseas Tankships (UK) Ltd [1] , considered that the principle could not apply to an escape of oil from a ship. However that may be, the land of the defendant need not be his land in any strict sense of legal title: for example the use on a public highway of a traction engine emitting sparks has been held to give rise to strict liability: Powell v Fall [1] ; Mansel v Webb [2] . The position of gas mains is expressly covered by authority that the rule in Rylands v Fletcher "is not limited to cases where the defendant has been carrying or accumulating the dangerous thing on his own land: it applies equally in a case where the appellants were carrying the gas in mains laid in the property of the City (that is in the sub-soil) in exercise of a franchise to do so": Northwestern Utilities Ltd v London Guarantee and Accident Co Ltd [3] . Gas mains are not themselves land or an interest in land: Commissioner for Main Roads v North Shore Gas Co Ltd [4] . But by virtue of its statute the Gas Co. was in lawful occupation of the land where its mains lay: R v Brighton Gas Light and Coke Co [5] . I take it that the reference to the statute in the count means no more than that the company was lawfully using the land of a public street to carry its pipes charged with gas to the point where the gas escaped - that is to say that the escape of the gas was from pipes belonging to the company at a place where they were in the control of the company. If this, or some averment to the like effect, had not been there, the count might perhaps have been demurrable. But the defendant says that the count is demurrable because it is there; that strict liability cannot result from the doing of an act pursuant to statutory authority; and therefore that, negligence not being alleged, the assertion of statutory authority made the count "self-destructive". For several reasons, I cannot agree with this. But in order to deal with it I find it necessary to state first some general considerations concerning the doctrine of Rylands v Fletcher [5a] .

[130]

The judgment of the Exchequer Chamber - consisting of Willes, Blackburn, Keating, Mellor, Montague Smith and Lush JJ. [6] - was not expressed to be, nor was it in 1866 taken to be, the creation of a new tort. That is not surprising, for that is not the way of the common law. The language which Blackburn J. used was expressed as only a generalized statement of ancient common law doctrine as exemplified by a variety of earlier cases. These included Tenant v Goldwin [7] - the case of the escape of filth from the defendant's privy into his neighbour's cellar. Holt C.J., on the motion for arrest of judgment, said that "it is a trespass on his neighbour, as if his beasts should escape, or one should make a great heap on the border of his ground, and it should tumble and roll down upon his neighbour's" [1] . He concluded with the pregnant words "for he whose dirt it is must keep it that it may not trespass" [2] . I mention the case because Blackburn J. himself apparently regarded it as the main support for the decision in Rylands v Fletcher . He said so in Ross v Fedden [3] ; and see the article by Professor Newark, Non-natural User and Rylands v. Fletcher, Modern Law Review (1961), vol. 24, 557, at pp. 563, 564 . Tenant v Goldwin is also notable because of the reference in it to the Case of Thorns heard as long ago as 1466: Y.B. 6 Edw. IV, M., f. 7, pl. 18. A translation from the French may be found in Doctor Kiralfy's A Source Book of English Law (1957), pp. 129-132. The statements of strict liability there were precise: for example: "Brian J. In my opinion, if someone does a thing he is bound to do it in such a way that no harm or damage is incurred by other persons through his act. " "Littleton J. I agree, and if a man is harmed it is right that he be recompensed. " Perhaps it is not far-fetched to see in Bracton, as I do, a still earlier hint of liability as in Rylands v Fletcher . In ch. xliii, "Of wrongful (tortious) nuisances" - De nocumentis injuriosis - Bracton, speaking of what he called a servitude (servitus) imposed by operation of law (a jure), said (at f. 232),

[135]

The doctrine of Rylands v Fletcher, as I understand it, derives from a conception of mutual duties of adjoining or neighbouring landowners and its congeners are trespass and nuisance. But is the doctrine merely akin to nuisance? Is it not a special form of the ancient cause of action for nuisance? The question may seem to be one of academic debate only - a matter of historical inquiry and juristic analysis. But because, as will appear, it has a bearing in this case, I think it worthwhile to notice it briefly, and to go back to the beginning of Rylands v Fletcher when Fletcher sued Rylands and his partner Horrocks. They had made a reservoir on their land for the purpose of supplying their mill with water. The reservoir burst through some old subterranean coal workings: water found its way to the plaintiff's colliery, which became flooded. The action reached the Court of Exchequer in 1865 - [3] - as the result of a case stated by an arbitrator after a conditional verdict found in 1862 for the plaintiff. The majority of the Court of Exchequer, Pollock C.B. and Martin B., held that the action did not lie in nuisance. Of this aspect Martin B. said [4] : there was no nuisance in the ordinary and generally understood meaning of that word, that is to say, something hurtful or injurious to the senses. The making a pond for holding water is a nuisance to no one. The digging a reservoir in a man's own land is a lawful act. It does not appear that there was any embankment, or that the water in the reservoir was ever above the level of the natural surface of the land, and the water escaped from the bottom of the reservoir, and in ordinary course would descend by gravitation into the defendants' own land, and they did not know of the existence of the old workings. To hold the defendants liable would therefore make them insurers against the consequences of a lawful act upon their own land when they had no reason to believe or suspect that any damage was likely to ensue. But Bramwell B., who dissented, said [5] : Why is it not a nuisance? The nuisance is not in the reservoir, but in the water escaping. As in Backhouse v Bonomi [6] the act was lawful, the mischievous consequence is a wrong. 1. [1947] A.C. 156, at p. 173. 2. (1865) 3 H. & C. 774 [159 E.R. 737]. 3. (1865) 3 H. & C., at pp. 792, 793 [159 E.R., at p. 745]. 4. (1865) 3 H. & C., at pp. 789, 790 [159 E.R., at p. 744]. 5. (1861) 9 H.L. Cas. 503 [11 E.R. 825].

[142]

it is not the words of the law, but the internal sense of it that makes the law, and our law (like all others) consists of two parts, viz. of body and soul, the letter of the law is the body of the law, and the sense and reason of the law is the soul of the law, quia ratio legis est anima legis. And the law may be resembled to a nut, which has a shell and a kernel within, the letter of the law represents the shell, and the sense of it the kernel, and as you will be no better for the nut if you make use only of the shell, so you will receive no benefit by the law, if you rely only upon the letter, and as the fruit and profit of the nut lies in the kernel, and not in the shell, so the fruit and profit of the law consists in the sense more than in the letter. To shew the relevance of that I shall first set out two passages from the judgment of Blackburn J. commonly quoted as the statement of principle. They run [1] : We think that the true rule of law is, that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. And later: it seems but reasonable and just that the neighbour, who has brought something on his own property which was not naturally there, harmless to others so long as it is confined to his own property, but which he knows to be mischievous if it gets on his neighbour's, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property. But for his act in bringing it there no mischief could have accrued, and it seems but just that he should at his peril keep it there so that no mischief may accrue, or answer for the natural and anticipated consequences. Add to this Lord Cairns's judgment in the House of Lords with its further condition that the defendant in bringing the potentially mischievous thing upon his land must have been putting the land to "a non-natural use" - What then of this case? 1. 2 Plowd. 465 [75 E.R. 695]. 2. (1866) L.R. 1 Ex., at pp. 279, 280.

[151]

The numerous decisions, in many courts, as to the application of Rylands v Fletcher reflect differing views of the purpose and the province of the law of torts today. But they do not, I think, sustain the facile statement of some commentators who have spoken of the rule as a by-product of the industrial revolution, as, like workmen's compensation law, strict liability deliberately called into existence in 1866 for the purpose of ensuring that industrial enterprises should make good harm which they do. That may be the socially beneficial result today of what the Exchequer Chamber and the House of Lords said a hundred years ago. But liability independent of negligence was, as I have said, not a new notion in English law. Indeed strict liability was known to the law long before negligence emerged in the nineteenth century as itself a cause of action. It may be that, in some circumstances, "an absolute liability is in a sense abhorrent", as Lord Greene M.R. said in J & J Makin Ltd v London and North Eastern Railway Co [1] . And any suggestion that a statute creating a liability has made it absolute must be critically examined: but, as his Lordship pointed out, whether that is so or not depends upon the language of the statute read against the background of the common law. There is certainly no presumption in the common law against strict liability. Actions for negligence dominate the work of common law courts today, mainly because railway trains, motorcars and industrial machinery have so large a place in men's lives. But to regard negligence as the normal requirement of responsibility in tort, and to look upon strict liability as anomalous and unjust, seems to me to mistake present values as well as past history. In an age when insurance against all forms of liability is commonplace, it is surely not surprising or unjust if law makes persons who carry on some kinds of hazardous undertakings liable for the harm they do, unless they can excuse or justify it on some recognized ground. That is, I think, the position today in the countries of the common law. In England, and in those countries which have the common law as it is in England, this comes about through the principle of Rylands v Fletcher [2] . In the United States that decision and its doctrine were, and still are, rejected in some jurisdictions: but now, as Professor Prosser has said, and made plain, in his work, Law of Torts, 3rd ed. (1964), p. 527:

[171]

When Parliament has authorized a certain thing to be made or done in a certain place, there can be no action for nuisance caused by the making or doing of that thing if the nuisance is the inevitable result of the making or doing so authorized. The onus of proving that the result is inevitable is on those who wish to escape liability for nuisance, but the criterion of inevitability is not what is theoretically possible but what is possible according to the state of scientific knowledge at the time, having also in view a certain common sense appreciation, which cannot be rigidly defined, of practical feasibility in view of situation and of expense. Some consequences of this have been considered in cases in the Supreme Court of South Africa, Appellate Division, especially in the judgment of Stratford J.A. in Bloemfontein Town Council v Richter [3] . It was there held that a defendant escapes liability in an action for nuisance if he shews that the nuisance complained of was a consequence, inevitable in the relevant sense, of his doing the very thing he was authorized by the statute to do; but that nevertheless the plaintiff may reply that, although a nuisance was unavoidable, yet the defendant could by some means or precaution, reasonably practicable, have lessened the actual harm to the plaintiff which ensued from the nuisance. The issue raised by such a reply would carry the case from the realm of nuisance into an ordinary action for negligence in the exercise of a statutory power, the onus of that issue being on the plaintiff. But this reasoning applies only to the situation where nuisance is an inevitable consequence of the exercise of powers given by statute. It does not apply in a case where the work or activity authorized by statute can, by the exercise of due care and skill by the undertaker be performed without creating a nuisance or doing other harm. In that case I think that decisions of high authority, taken as a whole, shew that a statutory undertaker is liable for a harmful nuisance he created unless he can shew that he has done the work properly, in a reasonable way and not negligently - the word "negligence" being used here in a special sense: see the judgment of Farwell J. in Provender Millers (Winchester) Ltd v Southhampton County Council [1] . In that sense I think that a defendant, in an action based on the rule in Rylands v Fletcher , who relies upon a statute to exonerate him, and who cannot shew that the escape of the harm-doing thing from his land was the inevitable consequence of his exercising his statutory powers, must shew that the harm was not the result of lack of skill and care on his part. I do not think that dicta in Cox Bros (Aust) Ltd v Commissioner of Waterworks [2] , powerful and persuasive though they are, compel a different conclusion. That was an action which went to trial. The primary question on the appeal was whether the evidence established negligence. Dicta in the judgments should be set alongside remarks in the judgments in Fullarton v North Melbourne Electric Tramway and Lighting Co Ltd [3] . I do not think that the application of the principle of Rylands v Fletcher to the facts of one case can be judged by other cases in which, although the facts may have had some similarity, the actions were based on negligence. Examples are Blyth v Birmingham Waterworks Co [4] ; Mose v Hastings and St Leonards Gas Co [5] . I should add here that, whatever weight should be given to the decision in Price v South Metropolitan Gas Co [1] , the statement there by Lord Russell C.J., that Rylands v Fletcher can have no application to a gas company having statutory authority to lay pipes, is too sweeping to stand. There is too much later authority against it. 1. [1930] A.C. 171, at p. 183. 2. [1938] S.A.L.R. A.D. 195, at pp. 228-232. 3. [1940] Ch. 131, at pp. 138-140. 4. (1933) 50 C.L.R. 108. 5. (1916) 21 C.L.R. 181. 6. (1856) 11 Ex. 781 [156 E.R. 1047]. 7. (1864) 4 F. & F. 324 [176 E.R. 584]. 8. (1895) 65 L.J.Q.B. 126.

[192]

It was, however, said for the Gas Co. that the section relates only to actions of nuisance as understood in 1837 or 1858 and does not comprehend the Rylands v Fletcher kind of nuisance as expounded in the Exchequer Chamber in 1866. But that is, I think, contrary to principle and in conflict with authority. Moreover it does not fit the facts of this case; for by keeping up the pressure of gas in its pipes the Gas Co. created and maintained a nuisance. It is true that every case now falling within the principle of Rylands v Fletcher would not before that decision have been considered an actionable nuisance. But nuisance and Rylands v Fletcher overlap. The relationship is summed up by Professor Prosser, Selected Topics of the Law of Torts, p. 177: "The principle underlying each is the same, and they are indistinguishable except along lines explained only by the accident of their history." Such distinctions as there are, appear to me irrelevant to the immediate question; for the existence of a "nuisance clause" in a statute has ever since Midwood & Co Ltd v Manchester Corporation [1] , been regularly held to keep alive the rule in Rylands v Fletcher against any construction of the statute which otherwise would dispel it and make negligence an essential of liability. I need not go through all the cases. It is enough, I think, that I refer to the judgments in the New Zealand Court of Appeal in Irvine & Co Ltd v Dunedin City Corporation [2] . That case was not cited in argument: but I think I am justified in relying on what I venture to call the learned and convincing judgments of the majority there, especially that of Myers C.J. An important feature of the judgment is the reference (at p. 766) to two cases about which a lot was said to us - Cox Bros (Aust) Ltd v Commissioner of Waterworks [3] and Burniston v Bangor Corporation [4] . As Myers C.J. pointed out, "the decision in each case turned upon the absence of a nuisance clause from the authorizing statute". Here there is one. It furnishes a short and simple answer to the demurrer.

[203]

I read the word "occupier" in the declaration in the present case as meaning that the plaintiff was in lawful possession of the premises where she came to harm. It is an ancient rule of pleading that a plaintiff may declare upon his possession without alleging the precise estate of which he is seised or laying any title to the property which he is disturbed in and hindered from enjoying. Reading the count in relation to its subject matter, we should on demurrer take it that the plaintiff had some right or interest in land beyond that of a mere gratuitous licensee. However, even if this be not so, and if it appears at the trial that the plaintiff was not in a strict legal sense an occupier, I think that she will nevertheless be entitled to recover damages for her personal injuries if she can establish that the case falls within the general principle of Rylands v Fletcher . Developments in the law of tort are towards a liability for personal harm done to persons who are neighbours in Lord Atkin's sense. They need not be persons having an interest in land in the neighbourhood. The movement of the common law is away from any preoccupation it may once have had with the protection of rights in land. The course of decisions in Rylands v Fletcher cases in England, starting with Charing Cross Electricity Supply Co v Hydraulic Power Co [2] , accords with modern tendency; and see too in Canada, Aldridge v Van Patter [3] . I think this Court should keep in step and treat the doctrine of Rylands v Fletcher as having become in this matter emancipated from restrictions its origin in or relationship with nuisance might impose. A plaintiff can I think recover under it for personal injuries, or harm to his personal effects if, at the time when the escaping thing came upon him, he was in a place where he was lawfully entitled to be as a licensee, or as a member of the public, such as on a highway or in a public park. I say nothing as to the position of a trespasser, except that it may be that a trespasser must take the risk of any dangers he may encounter in the place where he trespasses, no matter how they should come to be there.

[218]

For I take it, without citing cases, that it is now thoroughly well established that no action will lie for doing that which the legislature has authorized, if it be done without negligence, although it does occasion damage to anyone; but an action does lie for doing that which the legislature has authorized, if it be done negligently. And I think that if by a reasonable exercise of the powers, either given by statute to the promoters, or which they have at common law, the damage could be prevented it is, within this rule, "negligence" not to make such reasonable exercise of their powers. But the arguments before us covered a far wider field and it is plain that the matters which the parties seek to have decided are of general importance. In these circumstances I think I should express my views on them. Before doing so, however, it is necessary to point out that in the Court of Appeal and before us counsel on both sides emphasized that the count in question was not intended to be and they did not wish it to be treated as a count in nuisance - and indeed it does not follow the form which a count in nuisance would take under the system of common law pleading in force in New South Wales. It was, they said, intended to be what they called a "Rylands v Fletcher" count and they wished to have the case decided on that footing. At first I took this to mean that the question was whether the company was under an absolute liability for damage caused by an escape of gas from its pipes in which case, as it seemed to me, questions of negligence would be irrelevant. As the argument developed, however, the question which finally emerged was whether the allegations in the count would, if proved, establish a prima facie liability in the company which could be answered only by proof by it that the escape was not due to any negligence on its part. In other words, the question was whether it was for the plaintiff to allege and prove that the escape of gas was due to the negligence of the defendant or whether it was for the latter to allege and prove that the escape was not due to any failure on its part to exercise due care. 1. (1878) 3 App. Cas. 430, at pp. 455, 456.

[223]

I turn then to consider some of the authorities to which we were referred in which consideration has been given to the liability of undertakings exercising statutory powers and set up for the purposes of supplying the community with essential services such as gas, electricity and water. I will go first to the decisions in this Court which seem to me to have followed a consistent pattern and it is, I think, desirable to make a number of quotations from them. In Fullarton v North Melbourne Electric Tramway and Lighting Co Ltd [1] , the defendant was a tramway authority which, under statutory powers, had constructed and was running an electric tramway and for this purpose had erected wires carrying electric current along a public street. The plaintiff was injured when she came into contact with an uninsulated wire. She sued the defendant alleging that the latter had been negligent in failing to insulate the wire effectively. The issue of negligence was left to the jury and answered by it in favour of the defendant. But the trial judge was asked to give a direction that if the jury found the plaintiff's injuries were due to an escape of electric current, they should find a verdict in her favour, irrespective of negligence. The judge refused to do so and, on appeal, the question was whether the direction should have been given. For various reasons the majority of the Court, Griffith C.J., Barton and Isaacs JJ., was of opinion that a new trial should be had. Griffith C.J. took the view that proof that electricity had escaped from the defendant's wires afforded prima facie evidence that it had committed a nuisance and that, in these circumstances, it was for it to show that the creation of the nuisance was an inevitable result of carrying out its statutory functions. Barton J. was of the same opinion. Isaacs J., as I read his judgment, considered that too narrow a view had been taken at the trial of the meaning of the word "negligence". Although he said [1] , "As to the burden of proof in such a case as the present, it has not been specifically argued, and I decide nothing", his Honour went on to say that:

[228]

Mr. Cleland presented his argument in support of the appeal under two divisions. He urged first, that negligence was unnecessary to his cause of action, and if it entered into the matter at all must be negatived by the respondent in order to make out its statutory justification; and secondly, that in any event negligence was conclusively established. I think his first position fails upon reason and authority. The injury complained of did not arise from the installation or establishment of the undertaking or from anything in the character of the apparatus of which it is composed. It arose from the bursting of a pipe in the operation of the undertaking. Just as negligence must be proved in a railway accident so it must be proved when what is complained of is the manner in which the undertaking is conducted or maintained. So far as authority goes the cases which are collected and discussed in the Irish case of Burniston v Corporation of Bangor [3] are decisive. He went on to say that he agreed with the trial judge that no want of care on the part of the defendant had been proved. Starke J. said [4] : No doubt, if works authorized by an Act of Parliament be constructed negligently or unskilfully, and damage result, the constructing authority is liable for that damage (Mersey Docks Trustees v Gibbs [5] ). The works, however, in the present case, were constructed without negligence, as the learned trial judge held, and that finding cannot be disturbed. The principle above stated does not, therefore, avail the appellants. It has also been determined that if works constructed and used under the authority of an Act of Parliament be negligently managed or used, and damage result, the authority or person so managing or using the works is liable for that damage. But the right of action is founded upon negligence, and negligence is the gist of the action (Whitehouse v Birmingham Canal Co [1] ; Blyth v Birmingham Waterworks Co [2] ; Geddis v Proprietors of Bann Reservoir [3] ; Gaekwar of Baroda v Gandhi Kachrabhai Kasturchand [4] ; Hawthorn Corporation v Kannuluik [5] ; Southwark and Vauxhall Water Co v Wandsworth Board of Works [6] ; Green v Chelsea Waterworks Co [7] ; Snook v Grand Junction Waterworks Co [8] . After examining the evidence he concluded that, although the finding of the trial judge that there had been no negligence in constructing the works could not be distrubed, the evidence did establish that there had been a failure on the part of the defendant to exercise reasonable care in supervising and inspecting the conduct of its undertaking. Dixon J. (as he then was) said [9] : The appellants, who suffered in this way, failed in an action against the respondent upon the ground that the respondent had not, by himself or his servants, been guilty of negligence. The first question raised by their appeal is whether proof of negligence is necessary to the plaintiff's success in such an action. The defendant is an incorporated public authority empowered to supply water and to that end to lay mains under the streets. He must distribute a constant supply of water to all persons who are entitled to service from his system and (unless unavoidably prevented) he must maintain a charge of water in all his pipes to which fire plugs are affixed. (See Waterworks Act, 1882 SA, ss. 8, 12 (v), 18, 36, 37 and 42.) There is no statutory provision preserving a liability for nuisance arising from the conduct or maintenance of the system. In my opinion, it follows from the nature of the defendant's statutory authority that he is not liable for damage caused by an escape of water from his pipes unless he has been negligent, and that proof of negligence lies with the plaintiffs. This appears to me to be established by Blyth v Birmingham Waterworks Co [10] ; Green v Chelsea Waterworks Co [7] ; Price v South Metropolitan Gas Co [11] . (Compare Charing Cross, West End and City Electricity Supply Co v London Hydraulic Power Co [12] , per Scrutton J.; Charing Cross Electricity Supply Co v Hydraulic Power Co [13] , per Lord Sumner; and Burniston v Corporation of Bangor [14] , particularly per Andrews L.J. [15] . It may appear unsatisfactory that a water authority should not be responsible unless negligent for damage done by the failure of its mains, but I think that neither principle nor authority sanctions any other conclusion. It is plain that Evatt J. regarded the onus of proof of negligence to be upon the plaintiff and McTiernan J. [1] said: The charging of the main in question with water was therefore legalized by the statute. But the respondent did not become liable as an insurer on account of the escape of the water to the appellants' premises. In carrying out the duty imposed upon him by the Act the respondent did not charge the main with water at his peril. This principle is illustrated, for example, in Snook v Grand Junction Waterworks Co [2] and Green v Chelsea Waterworks Co [3] . The cause of the damage which the appellants suffered was the use of the main by the respondent in carrying out the legislature's mandate to him. The pouring of the water into the appellants' premises was therefore neither an actionable nuisance nor trespass and their cause of action must be founded on negligence. 1. (1933) 50 C.L.R. 108. 2. (1933) 50 C.L.R., at p. 117. 3. [1932] N.I. 178. 4. (1933) 50 C.L.R., at pp. 118, 119. 5. (1866) L.R. 1 H.L. 93. 6. (1857) 27 L.J. Ex. 25. 7. (1856) 11 Ex. 781 [156 E.R. 1047]. 8. (1878) 3 App. Cas. 430. 9. (1903) L.R. 30 Ind. App. 60. 10. [1906] A.C. 105. 11. [1898] 2 Ch. 603. 12. (1894) 10 T.L.R. 259; 70 L.T. 547. 13. (1886) 2 T.L.R. 308. 14. (1933) 50 C.L.R., at p. 121. 15. (1856) 11 Ex. 781 [156 E.R. 1047]. 16. (1894) 10 T.L.R. 259; 70 L.T. 547. 17. (1895) 65 L.J.Q.B., at p. 127. 18. [1913] 3 K.B. 442, at p. 447. 19. [1914] 3 K.B. 772, at p. 781. 20. [1932] N.I. 178. 21. [1932] N.I., at pp. 186-188. 22. (1933) 50 C.L.R., at p. 128. 23. (1886) 2 T.L.R. 308. 24. (1894) 10 T.L.R. 259; 70 L.T. 547.

[234]

The plaintiffs had the onus of establishing negligence. In Port Glasgow and Newark Sailcloth Co v Caledonian Railway Co [8] , Lord Herschell L.C. said "It is now well-settled law that in order to establish a case of liability against a railway company under such circumstances it is essential for the pursuers to establish negligence. The railway company having the statutory power of running along the line with locomotive engines, which in the course of their running are apt to discharge sparks, no liability rests upon the company merely because the sparks emitted by an engine have set fire to adjoining property. But the defenders, although possessing this statutory power, are undoubtedly bound to exercise it reasonably and properly, and the test whether they exercise this power reasonably and properly appears to me to be this. They are aware that locomotive engines running along the line are apt to emit sparks. Knowing this they are bound to use the best practicable means, according to the then state of knowledge, to avoid the emission of sparks which may be dangerous to adjoining property; and if they, knowing that the engines are liable thus to discharge sparks, do not adopt that reasonable precaution they are guilty of negligence and cannot defend themselves by relying upon their statutory power." This law was laid down by the Exchequer Chamber in the well-known case of Vaughan v Taff Vale Railway Co [1] . Kitto J. said [2] : The statutory authority which the defendant had for using a locomotive engine at the time and place in question absolves him from liability under the rule in Rylands v Fletcher [3] , for the escape of fire from his engine. But the Act must be construed as authorizing the use of such engines in a proper manner only, and the plaintiffs are therefore entitled to succeed if the injury suffered was caused by a failure on the part of the defendant or his agents "to use reasonable care to do no unnecessary damage" by the use of the engine: East Fremantle Corporation v Annois [4] . If the injury to the deceased's property was caused, not by negligence, but by the ordinary and normal use of the railway, the defendant is under no liability: Canadian Pacific Railway v Roy [5] . The onus of proving negligence rests upon the plaintiffs: Parker v London and NE Railway Co [6] ; Sellwood v London M & S Railway Co [7] ; cf. Cox Bros (Aust) Ltd v Commissioner of Waterworks [8] . Both the onus of proof and the nature of the defendant's obligation of due care were the subject of some observations by Lord Herschell in the Scottish case of Port Glasgow and Newark Sailcolth Co v Caledonian Railway Co [9] . The relevant passage was quoted by Isaacs J. in Fullarton v North Melbourne Electric Tramway and Lighting Co Ltd [10] , and its importance warrants its repetition. Lord Herschell said: "It is now well-settled law that in order to establish a case of liability against a railway company under such circumstances it is essential for the pursuers to establish negligence. The railway having the statutory power of running along the line with locomotive engines, which in the course of their running are apt to discharge sparks, no liability rests upon the company merely because of sparks emitted having set fire to adjoining property. But the defenders although possessing this statutory power, are undoubtedly bound to exercise it reasonably and properly, and the test whether they exercise this power reasonably and properly appears to me to be this: They are aware that locomotive engines running along the line are apt to emit sparks. Knowing this they are bound to use the best practicable means according to the then state of knowledge to avoid the emission of sparks which may be dangerous to adjoining property; and if they, knowing that the engines are thus liable to discharge sparks, do not adopt that reasonable precaution they are guilty of negligence, and cannot defend themselves by relying upon their statutory power. About the law, as I have expressed it, I do not think there is any controversy". 1. (1951) 84 C.L.R. 586, at p. 590. 2. (1893) 20 Rettie (H.L.) 35, at p. 36. 3. (1860) 5 H. & N. 679 [157 E.R. 1351]. 4. (1951) 84 C.L.R., at pp. 600, 601. 5. (1868) L.R. 3 H.L. 330. 6. [1902] A.C. 213, at p. 218. 7. [1902] A.C. 220. 8. (1945) 175 L.T. 137. 9. (1946) 175 L.T. 366. 10. (1933) 50 C.L.R., at pp 119, 121. 11. (1893) 20 Rettie (H.L.) 35, at p. 36. 12. (1916) 21 C.L.R., at p. 201.

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on the basis that the plaintiff, in order to make out a cause of action, was under the necessity of establishing negligence in the carrying on of an otherwise authorized undertaking. Their Honours went on [3] : The generation, or receipt, and transmission of electrical energy of a lethal voltage imposed the duty upon the defendant. By statute, as we assume, the defendant was authorized to bring it upon the highway. But a duty of care rested upon the defendant of a high degree; a duty of care measured by a high standard both because of the lethal nature of the agency and because of the almost infinite variety of mischance by which attempts to insulate it and prevent its escape may be defeated. And [4] : It is the case of an injury through discharge of electricity made possible through the defendant's neglect of due precautions and allowing his system to be in an improper and dangerous condition. That is the basis of the defendant's liability. Kitto J. said [5] : The respondent, but for the statutory authority which it possessed for the carrying on of its electricity undertaking, would have been liable to the appellant on the principle of Rylands v Fletcher [1] , for any injury occasioned to him by an escape of electric current, even if the utmost care had been observed: Eastern and South African Telegraph Co Ltd v Cape Town Tramways Companies Ltd [2] . The statutory authority saves the respondent from liability on this strict basis, but it affords no protection from liability for an injury caused by negligence: Great Central Railway Co v Hewlett [3] ; East Suffolk Rivers Catchment Board v Kent [4] ; Fullarton v North Melbourne Electric Tramway and Lighting Co Ltd [5] ; Cox Bros (Aust) Ltd v Commissioner of Waterworks [6] . 1. (1953) 87 C.L.R. 619; 19 L.G.R. (N.S.W.) 1. 2. (1953) 87 C.L.R., at p. 625; 19 L.G.R. (N.S.W.), at p. 4. 3. (1953) 87 C.L.R., at p. 629; 19 L.G.R. (N.S.W.), at pp. 6, 7. 4. (1953) 87 C.L.R., at p. 630; 19 L.G.P. (N.S.W.), at p. 7. 5. (1953) 87 C.L.R., at pp. 644, 645; 19 L.G.R. (N.S.W.), at pp. 15, 16. 6. (1868) L.R. 3 H.L. 330. 7. [1902] A.C. 381, at pp. 391, 392. 8. [1916] 2 A.C. 511, at p. 519. 9. [1941] A.C. 74, at p. 85. 10. (1916) 21 C.L.R. 181. 11. (1933) 50 C.L.R. 108, at pp. 119, 121.

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As I read the judgments of their Lordships, they took the view - and with respect I agree - that it was for the defendant to show that the creation of the nuisance was an inevitable result of doing the authorized work, namely building and running the generating station; that in order to establish inevitability it was necessary for it to prove that in planning the station and using it, it had taken all reasonable precautions to avoid creating a nuisance but that it had failed to establish that this was the fact. It is a decision on a case in which the defendant, sued in nuisance, set up that the creation of the nuisance was an inevitable result of carrying out its statutory powers and, to my mind, it throws no light on the questions which the parties here have raised, nor does it - in my opinion - throw any doubt upon the correctness of the statements which I have already quoted from the judgments of this Court. The second case is Northwestern Utilities Ltd v London Guarantee and Accident Co Ltd [1] . There a building in Edmonton, Alberta, had been destroyed by fire caused by the escape of gas from a fractured joint in a gas main belonging to the appellant, a public utility company which supplied gas to consumers in the city under a franchise from the city authority. The break in the main was caused by the construction by the city authority of a sewer underneath the gas main. The respondents claimed damages from the appellant alleging (inter alia) negligence in constructing and maintaining the gas main and alleging also, during the trial, an alternative cause of action, namely that the appellant knew or should have known that the city authority was constructing its sewer underneath the gas main but had failed to take proper precautions to ensure that the work being done by the city authority did not cause gas to escape from the gas main. In the Appellate Division of the Alberta Supreme Court [2] , Harvey C.J.A., with whom Clarke J.A. and McGillivray J.A. agreed, was of opinion that negligence on the part of the appellant was established in that it had failed to "inspect city operations which might affect the security of its pipes and to take such steps as might be necessary to protect them". In these circumstances it appeared to him, and with respect I agree, that "the doctrine of Rylands v Fletcher does not require to be invoked to attach liability to the defendant". On the findings of fact it was liable in negligence. On appeal to the Privy Council, their Lordships, Lord Hailsham L.C. and Lords Blanesburgh and Wright, agreed with the conclusions of the Alberta Appellate Court that - and I quote from the headnote [3] -

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as the appellants were carrying gas at high pressure which was very dangerous, if it should escape, they owed a duty to the owners of the hotel, to exercise reasonable care and skill that the owners should not be damaged. The degree of care which that duty involved must be proportioned to the degree of risk involved. The City might at any time be conducting operations in connection with their sewers in the vicinity of the appellants' mains, and it was the duty of the appellants to watch such operations. The operations in question were, from their public nature and conspicuous character and from the time during which they went on, such that a failure by the appellants to know of them was plainly not consistent with due care on their part in the interests of members of the public likely to be affected. Having regard to the acceptance of the finding that the appellants had been negligent, I have with all respect found it difficult to understand why, in delivering the judgment of the Judicial Committee, Lord Wright [1] should have thought it necessary to discuss, as he did at some length, the rule in Rylands v Fletcher [1a] and its possible application to a case such as the one then under appeal. In the couse of that discussion his Lordship said that [2] : This form of liability [that is liability under the doctrine of Rylands v Fletcher] is in many ways analogous to a liability for nuisance, though nuisance is not only different in its historical origin but in its legal character and many of its incidents and applications. But the two causes of action often overlap, and in respect of each of these causes of action the rule of strict liability has been modified by admitting as a defence that what was being done was properly done in pursuance of statutory powers, and the mischief that has happened has not been brought about by any negligence on the part of the undertakers. He went on, however [3] : The question in these proceedings is between the respondents, as or representing property owners, and the appellants as undertakers, who are carrying an element, gas, in their mains close to the owners' premises; the gas is carried at high pressure, is very dangerous if it escapes and calculated if it does escape to damage, as it did, the owners' property. The appellants accordingly owe a duty to the respondents, even though the case falls outside the rule of strict or absolute liability, to exercise all care and skill that these owners should not be damaged. The degree of care which that duty involves must be proportioned to the degree of risk involved if the duty should not be fulfilled. And [4] : In ordinary course, the city might at any time be conducting operations in connexion with their sewers in the vicinity of the appellants' mains, and it was the appellants' duty to watch such operations. This particular operation was, as both courts have held, from its public nature and conspicuous character, and from the time during which it went on, such that a failure by the appellants to know of it is plainly not consistent with due care on their part in the interests of members of the public likely to be affected. In truth, the gravamen of the charge against the appellants in this matter is that though they had the tremendous responsibility of carrying this highly inflammable gas under the streets of a city, they did nothing at all in all the facts of this case. If they did not know of the city works, their system of inspection must have been very deficient. If they did know they should have been on their guard: they might have ascertained what work was being done and carefully investigated the position, or they might have examined the pipes likely to be affected so as to satisfy themselves that the bed on which they lay was not being disturbed. Their duty to the respondents was at the lowest to be on the watch and to be vigilant: they do not even pretend to have done as much as that. In fact, so far as appears, they gave no thought to the matter. They left it all to chance. What that case actually decided was that the appellant owed a duty of care to the respondents and that it had breached that duty and was therefore liable in negligence. It was not necessary for the decision to consider what would have been the position of the appellant had the charge of negligence against it failed and whether, if all that had been shown was that the gas had escaped from the main and caused the fire, the onus would have been on the appellant to show the escape of gas had occurred notwithstanding the exercise on its part of all due care. 1. [1936] A.C. 108. 2. [1935] 1 D.L.R. 135. 3. [1936] A.C., at p. 109. 4. [1936] A.C., at pp. 118, 119. 5. (1868) L.R. 3 H.L. 330. 6. [1936] A.C., at p. 119. 7. [1936] A.C., at p. 126. 8. [1936] A.C., at pp. 127-128.

At a glance

Court

Decision date

Before

Source

Judgment (242 paragraphs)

Parties

Cases Cited (1)