Benning v Wong

1. (1868) L.R. 3 H.L. 330. 2. (1916) 21 C.L.R. 181, at p. 188.

I shall at a later stage discuss some of the authorities but it is convenient that having expressed my opinion in the above terms, I should presently refer to the exposition of the relevant law by Lord Wright to be found in Northwestern Utilities Ltd v London Guarantee and Accident Co Ltd [1] . I quote two passages from their Lordships' advice. First, it is said [2] :

That gas is a dangerous thing within the rules applicable to things dangerous in themselves is beyond question. Thus the appellants who are carrying in their mains the inflammable and explosive gas are prima facie within the principle of Rylands v Fletcher [3] affirming Fletcher v Rylands [4] : that is to say, that though they are doing nothing wrongful in carrying the dangerous thing so long as they keep it in their pipes, they come prima facie within the rule of strict liability if the gas escapes: the gas constitutes an extraordinary danger created by the appellants for their own purposes, and the rule established by Rylands v Fletcher requires that they act at their peril and must pay for damage caused by the gas if it escapes, even without any negligence on their part. The rule 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 like the present 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: Charing Cross Electricity Supply Co v Hydraulic Power Co [5] .

This form of liability 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.

Again, it appears that [6] : Where undertakers are acting under statutory powers it is a question of construction, depending on the language of the statute, whether they are only liable for negligence or whether they remain subject to the strict and unqualified rule of Rylands v Fletcher [3] . 1. [1936] A.C. 108. 2. [1936] A.C., at pp. 118, 119. 3. (1868) L.R. 3 H.L. 330. 4. (1866) L.R. 1 Ex. 265. 5. [1914] 3 K.B. 772. 6. [1936] A.C., at p. 120. 7. (1868) L.R. 3 H.L. 330.

I read these passages in the context of the whole judgment as expressing, perhaps in a somewhat condensed and compendious form, the same opinion as I have earlier endeavoured to develop. In my opinion, the sentence on p. 119 "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" is the complement of the assertion on page 118 "that though they are doing nothing wrongful in carrying the dangerous thing so long as they keep it in their pipes, they come prima facie within the rule of strict liability if the gas escapes: the gas constitutes an extraordinary danger created by the appellants for their own purposes, and the rule established by Rylands v Fletcher [1] requires that they act at their peril and must pay for damage caused by the gas if it escapes, even without any negligence on their part". The words "and the rule established by Rylands v Fletcher requires that they act at their peril and must pay for damage caused by the gas if it escapes, even without any negligence on their part" ought, in my opinion, to be read as no more than an exposition of the prima facie position before it is modified by the defence which the existence of a statutory authority may afford the undertakers. In my opinion, without discussing the question whether or not the quoted passages were fundamental to the decision of the case and thus authoritatively binding, this Court should accept those passages understood in the sense I have indicated as properly expressing the relevant law.

Here for present purposes, the bringing of the dangerous substance namely, gas, to the public street, is admitted. So is the fact that the gas was not kept within that part of the public street in which the pipes were laid by the defendant and the fact that it thence came upon the land occupied by the plaintiff, there causing damage. Prima facie therefore a common law right of the plaintiff in the enjoyment of the land occupied by her has been breached by the defendant. The defendant says that its statutory authority to lay and use the pipes precludes the application to it of the cause of action founded on Rylands v Fletcher [1] .

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.

1. (N.S.W.) 2. (N.S.W.) 3. (1933) 50 C.L.R. 108, at p. 119. 4. (1868) L.R. 3 H.L. 330.

Before turning to discuss the principal reported cases to which we were referred in argument, I would now desire to say something of the pleadings in this matter. For some reason the plaintiff alleged in her count to which the defendant has demurred that the defendant had been authorized by statute to lay and use the pipes for the conveyance of gas and that "pursuant to such power" it had laid and used the mains. There was no specification of the statute to which the count referred. The action as I have said, is brought against a nominal defendant, the secretary of the Australian Gas Light Co. In the first count in the plaintiff's declaration it was said that the defendant was "the secretary for the time being of the Australian Gas Light Co. and liable by statute to be sued as nominal defendant on behalf of the said Australian Gas Light Co.". In fact the statute which made the defendant so liable was the Australian Gas Light Company Act of 1837. It seems to have been thought by the Supreme Court that these circumstances entitled it to treat the Act of 1837 as the statute which is referred to in the count subject to demurrer. But, in my opinion, this was not permissible and, with respect, the Supreme Court was not entitled upon a demurrer to treat the count as if the unspecified statute was that Act or for that matter any other specific Act. Further, it was, in my opinion, irregular to have included in the demurrer book any count other than that the subject of the demurrer. The practical difficulties in the way of taking any such course as was taken by the Supreme Court are readily seen when all the Australian Gas Light Company Acts are looked at. The Act of 1837 authorized the laying of pipes in public places within the then boundaries of the City of Sydney. That Act would appear to have laid some obligations on the defendant to supply gas. It laid duties upon it with respect to the escape of gas and provided for the payment of compensation in certain events.

The Act of 1858 on the other hand simply authorized the laying of pipes in public places outside those boundaries of the City of Sydney. It imposed no obligation to supply gas nor any of the other duties nor the obligation to pay compensation. But it did incorporate s. 79 of the Act of 1837 to which I shall have occasion later to refer. It cannot be known from the pleading where the pipe in question was laid, whether within or without those boundaries of the City of Sydney.

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.

However, the Supreme Court dealt with the matter on the footing that it could treat the Act of 1837 and perhaps all the Acts collectively referred to as the Australian Gas Light Company Acts, 1837-1935, as incorporated in the demurrer book. The defendant in the argument before the Court has been willing to treat all the Acts as the "statute" mentioned in the count and the plaintiff, without abandoning her primary position which requires the demurrer to be dealt with strictly and regularly as a matter of pleading, has been willing that the Court should look at all those statutes, though she claims that in truth because of the location of the pipes in question the relevant statute is that of 1858. But as will be seen from what follows, nothing ultimately turns in my opinion on the difference between the Acts, or indeed upon any question whether they are all or any of them public as distinct from private statutes, a matter which was discussed in argument.

Before turning to an examination of the authorities, I should turn to s. 79 of the Act of 1837, which is incorporated into the Act of 1858. It is in the following terms:

79. 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.

It is, in my opinion, quite clear that this section does not itself purport to impose or itself be a source of absolute, or of any, liability. That was the submission made and rejected as to s. 13 of the Water, Gas, Electric and Telephone Companies Act (Alberta, Canada) in Northwestern Utilities Ltd v London Guarantee and Accident Co Ltd [1] . References in the reported cases to the need for particular language in the statutes that do impose strict or absolute liability are therefore irrelevant and beside the point in this case.

What the section does is to provide expressly that the statute shall not be construed so as to displace rights which apart from the statute would arise from the exercise by the defendant of the power and authority given to it by the statute. The section is couched in terms of the bringing of proceedings. But quite clearly it is not merely protecting procedural rights. As often, the reference to the bringing of an action or proceeding or to the right to do so, comprehends substantial rights. That, in my opinion is the case here. The section does not give rights but it directs that the statute shall not be construed so as to take them away. It is not happily phrased, but it had a respectable ancestry in English statutes. Clauses of its kind have been the subject of a good deal of judicial discussion; the references to a number of the cases which include such discussions are to be found in Irvine and Co Ltd v Dunedin City Corporation [2] .

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.

I now turn to discuss some of the reported decisions in the light of the principles which, in my opinion, should govern this case. There are two possible positions to be taken from expressions of opinion in the decided cases. Firstly, it may be thought that the mere fact of the existence of a statutory authority to bring the dangerous thing or substance upon the land precludes all use of the doctrine illustrated in Rylands v Fletcher [1a] , and that as a consequence, where the statute does not completely absolve the operator from all liability from resulting damage, the only cause of action is one for breach of a duty of care. Secondly, it may be thought that, unless the statute authorizes the precise act which causes the damage, the effect of the statutory authority is only to exclude from liability all those escapes, which were unavoidable by the exercise of due care leaving a liability for those which were so avoidable but which were not avoided. On this view, as I have said, the onus of proof of unavoidability or of the exercise of due care and skill as the case may be is on the defendant. I will take first those cases decided in the United Kingdom and, second, those decided in Australia, not necessarily dealing with the cases chronologically.

Burniston v Corporation of Bangor [1] is a case frequently referred to in support of the view that the existence of a statutory authority to do the work from which the escape of a dangerous substance comes displaces the doctrine of Rylands v Fletcher and throws upon a plaintiff suffering damage upon his land by the escape the onus of establishing negligence. The defendants in that case were authorized by statute to keep water in a reservoir for town water supply purposes. The water escaped due to a subsidence of the land supporting the reservoir. The question for decision was whether the defendants were absolutely liable for all damage caused by the escape. The answer was that they were not, Dunn v Birmingham Canal Co [2] ; Snook v Grand Junction Waterworks Co Ltd [3] , and Green v Chelsea Waterworks Co [4] being the decisions principally relied upon. I think it most important to observe what, in my opinion, was meant by the Court of Appeal of Northern Ireland when it was said that Rylands v Fletcher did not apply to the case. In my opinion, all that was meant was that in a case where the escape is from a work authorized by statute, the liability is not absolute: so to say does not deny that in defence to a prima facie Rylands v Fletcher situation a defendant, who notwithstanding the statutory authority he may possess is liable for negligence in the performance of the authorized work, must as part of his assertion of that statutory authority, negate his lack of due care in order to complete the defence provided in the statute. It is, of course, quite true that in Dunn v Birmingham Canal Co [1] and in Snook v Grand Junction Waterworks Co Ltd [2] the onus of establishing negligence was placed on the plaintiff; but, as it seems to me, no particular consideration was given to the conditional nature of the statutory authority in those cases and to the defensive position of the defendant in each case.

1. [1932] N.I. 178. 2. (1872) L.R. 7 Q.B. 244; L.R. 8 Q.B. 42. 3. (1886) 2 T.L.R. 308. 4. (1894) 70 L.T. 547. 5. (1872) L.R. 7 Q.B. 244; L.R. 8 Q.B. 42. 6. (1886) 2 T.L.R. 308.

The plaintiffs in Dunn v Birmingham Canal Co [1] sued in negligence. The defences included a defence of statutory authority and that water escaped from the canal without negligence or default on the part of the defendants. A verdict was taken for the plaintiffs subject to a case to be stated by an arbitrator. Such a case was stated and the court, having power to draw inferences of fact was asked whether the defendants were liable on the facts for the damage caused to the plaintiffs' mines by the escape of water from the canal.

The facts disclosed that the plaintiffs had worked their mine in proximity to the defendants' canal and thereby caused cracks and fissures in the bed of the canal from which the water escaped into and damaged the plaintiffs' mines. It was established that the defendants had properly constructed and maintained the canal and that "where the bed of a canal has been or is in the course of being broken by mining, there are no certain means of keeping the canal watertight". Cockburn C.J. said in the course of a judgment in which Lush J. concurred [3] :

It must, therefore, be taken as an admitted fact, that there was no negligence on the part of the defendants contributing to the damage occasioned to the mine, unless, indeed, the omission to empty the water out of the canal above the plaintiffs' mine, while the mine was being worked, can be so considered. But I cannot think that it was at all incumbent on the company to interrupt the navigation, which it was their business to keep open for the accommodation of the public, in order to afford the plaintiffs the opportunity of getting their coal. 1. (1872) L. R. 7 Q.B., at pp. 257, 258.

After having decided that the case for the plaintiffs as pleaded was not made out, the court proceeded to consider whether there was any other possible cause of action available to the plaintiffs upon the facts as admitted or found. It would seem that various reasons were given why the plaintiffs could not succeed upon a cause of action based on Rylands v Fletcher [1a] . First it was said that the plaintiffs had brought the damage on themselves by mining in proximity to the canal. Second, that the defendants were acting under statutory powers which provided for compensation for damage caused by the exercise of the statutory powers and thirdly that the keeping of the water in the canal, which was the only relevant act of the defendants was expressly authorized by the statute. Mellor J. treated the question as [1] :

whether, under the provisions of the Acts of Parliament which regulate the relation of the parties to each other, the defendants can be made liable in an action, without negligence in fact, for loss accruing to the owners of the mine by reason of the flooding thereof occasioned by their own act without some act or default done or suffered by the defendants. I would respectfully agree that that was the question which emerged and that it permitted of only one answer. That answer did not involve any question of the onus of proof of negligence in a case where prima facie a Rylands v Fletcher situation existed in respect of which the defendant relied upon statutory authority as a defence. 1. (1868) L.R. 3 H.L. 330. 2. (1872) L. R. 7 Q.B., at p. 264.

Snook v Grand Junction Waterworks Co Ltd [2] . Huddleston B. in this case of an escape of water from a water main laid under statutory authority and charged with water to conform to a statutory duty to supply water, told a jury trying the question whether the defendant company had been negligent that as "the defendants were a statutory company and bound to supply the water they were protected from the effects of the general doctrine " [3] (i.e. Rylands v Fletcher ): and that the plaintiff bore the onus of establishing causative negligence on the part of the defendant. In point of fact, it would seem from the report [4] that the defendants established that the failure of the pipe from which the water escaped was at least probably if not certainly due to climatic causes, the effect of which could not be prevented by the exercise of reasonable skill and care. But, none the less, the expression of opinion by Huddleston B. carries weight.

1. (1886) 2 T.L.R. 308. 2. (1886) 2 T.L.R., at p. 309. 3. (1886) 2 T.L.R., at p. 310 (col. 1).

Green v Chelsea Waterworks Co [5] is the case frequently referred to in discussion as to the effect of a statutory authority to bring a dangerous thing or substance on to land upon the liability which otherwise would exist for the escape of such substance to other land. I think it important to observe both the factual situation as found in this case and the precise contention set up and rejected.

The plaintiff alleged that a water main had been placed on land adjacent to his premises and that it was constantly filled with water. He asserted two causes of action, one based on Rylands v Fletcher and the other on negligence. The defendants pleaded a statutory obligation to construct and maintain the water main and that it was duly laid and maintained under and in pursuance of the obligatory statutory powers. They claimed that the statement of claim disclosed no cause of action - though it contained a claim for negligence - because the statute protected them against liability for damage unless caused by their negligence which they denied, asserting that the water main had been properly and skilfully laid down and maintained. Evidence on the issue of negligence was led, presumably by both sides, before the jury who tried the facts and found that the plaintiff's damage was not caused by any negligence on the part of the defendants in connexion with the water main. Upon further consideration by the trial judge after the return of the jury's verdict, it was submitted that the rule in Rylands v Fletcher [1a] applied to the statutory authority in all its rigour and that, notwithstanding the provisions of the statute, the defendants were absolutely liable and to be taken as having obtained their statutory powers on the basis that they were responsible for all consequences of laying the pipes or charging them with water, whether or not such consequences were avoidable by the exercise of due care. It was this proposition which Mathew J. rejected and which Lindley L.J. so firmly denied. The Lord Justice's concluding words are significant "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" [1] . Mathew J. had concluded [2] :

"It is clear that with no amount of care or skill can they" (the defendants) "prevent the bursting of one of their pipes, and the consequent damage that may be occasioned to those who may be living near to where the bursting has taken place. It is said that it would be reasonable to suppose that Parliament intended to impose upon them this obligation, namely, the obligation of insurers. But it is manifest that, although the particular injury may not be one of frequent occurrence, it is one that is incidental to the exercise of their statutory powers; in other words, it is impossible to carry on their undertaking without a liability of this sort." i.e. of the bursting of a pipe not due to lack of the exercise of reasonable skill and care. What his Lordship said must be read against the background of the facts found by the jury, namely, that the defendants had not been guilty of any relevant negligence. 1. (1868) L.R. 3 H.L. 330. 2. (1894) 70 L.T., at p. 549. 3. (1894) 70 L.T., at p. 548.

In my opinion, this case does not decide that the existence of a statutory authority per se displaces liability derived from the escape of dangerous things or substances brought upon land. Nor does it decide anything as to the onus of establishing negligence or the absence of it. But, in my opinion, it is based upon the view that the consequences of the execution of a statutorily authorized work which cannot be avoided by the exercise of reasonable skill and care are to be regarded as incidental to the performance of the authorized work and are covered by the statutory authority to do it. To that extent, and if that be the fact, the statute itself will be an answer to the claims made under Rylands v Fletcher [1a] .

Cox Bros (Aust) Ltd v Commissioner of Waterworks [1] reached this Court on appeal after a contest of fact which resulted in a finding that the respondent Commissioner had not been negligent in the laying of a water main which had burst with consequential damage to the appellant company, or in the maintenance and inspection of the main. The trial judge also found that the respondents were not negligent in failing to take steps after they became aware of the bursting of the main. One of the appellant's arguments was precisely the same as that of the appellant in Green v Chelsea Waterworks Co [2] . The submission was in substance that the respondent was an insurer liable for all the consequences of laying the pipes and of charging them with water although all those consequences could not be avoided by the exercise of reasonable care.

1. (1933) 50 C.L.R. 108. 2. (1894) 70 L.T. 547.

The argument of the appeal, however, included discussion of a quite disparate point, namely, whether the respondents were negligent subsequent to the bursting of the main and the emission of water.

The trial judge's finding that the respondents were not in any respect negligent was supported by the majority of the Court. No question of onus of proof arose in the appeal. Evidence had been adduced and there was a positive finding which did not depend upon any failure of either party to provide evidence. Nor was the finding made in any uncertainty of mind so that the onus of proof had no play. Of course, in argument, when the trial judge's finding was under challenge, a submission was made that it was for the respondent to negative negligence. But the submission was answered by the positive finding of the absence of negligence. However, two justices, perhaps three, expressed the opinion that because the respondents were under obligation to charge the water mains with water, they were only liable in negligence and not in trespass or nuisance. Two justices expressed the further opinion that the onus of establishing negligence was upon the appellant.

These views, though in my opinion but obiter, are of considerable weight. However, the Court did not have the advantage of considering the reasons of their Lordships in Northwestern Utilities Ltd v London Guarantee and Accident Co Ltd [1] decided some two years later. Also, the proposition that the plaintiff, damaged by an escape of water on to his land, must establish negligence, if a statute authorized the water to be brought by the defendant upon the land from which it escaped, was said to be drawn from Blyth v Birmingham Waterworks Co [2] ; Green v Chelsea Waterworks Co [3] and Price v South Metropolitan Gas Co [4] .

1. [1936] A.C. 108. 2. (1856) 11 Ex. 781; 156 E.R. 1047. 3. (1894) 70 L.T. 547. 4. (1895) 65 L.J. Q.B. 126, at p. 127.

Blyth v Birmingham Waterworks Co [2] was decided in 1856 in a case where the plaintiff sued in negligence and failed for proof of it. Rylands v Fletcher [5] though perhaps not the actual source of the doctrine it illustrates, was not decided till 1868.

1. (1856) 11 Ex. 781; 156 E.R. 1047. 2. (1868) L.R. 3 H.L. 330.

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] :

On the whole, therefore, I am of opinion that, looking at the character of the crack and the length of time that the gas was in all probability escaping, the escape ought to have come to the knowledge of the defendants' employees and have been reported. Moreover, from similar information, the defendants ought, in the first instance, to have known that the ground had been excavated in the neighbourhood of the gas main, and that the soil which had been disturbed underneath the cracked pipe had not been carefully replaced. The whole case for the Court being, was there or was there not evidence of negligence on the part of the defendants? I think there was such evidence, and that under the circumstances it would be impossible to say there was no evidence of negligence. 1. (1894) 70 L.T. 547. 2. (1895) 65 L.J.Q.B. 126. 3. (1866) L.R. 1 Ex. 265. 4. (1868) L.R. 3 H.L. 330. 5. (1895) 65 L.J.Q.B., at p. 128.

Consequently, in my respectful opinion, the actual decision in Cox Bros (Aust) Ltd v Commissioner of Waterworks [2] can be accepted consistently with the views I have put, though some parts of the reasons which are, in my opinion, obiter only ought not to be followed.

In Thompson v Bankstown Corporation [3] , a youth had received an electric shock when he attempted to climb an electric light pole in a public street because he came into contact with what had been an earthed wire but which at the time was unearthed and charged with electricity. Three members of the Court assumed that the plaintiff was bound to establish negligence in the carrying on of an otherwise authorized undertaking and decided the case for the plaintiff on the basis of a breach by the defendant of a high obligation of care in connexion with so dangerous a commodity as electricity at a high voltage. However, Kitto J. in agreeing with that result made the following observation in the course of his reasoning [1] :

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 [1a] 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. 1. (1953) 87 C.L.R. 619; 19 L.G.R. (N.S.W.) 1. 2. (1953) 87 C.L.R., at p. 644; 19 L.G.R. (N.S.W.), at p. 15. 3. (1868) L.R. 3 H.L. 330. 4. [1902] A.C. 381, at pp. 391, 392.

I find myself in agreement with this method of stating the effect of a statutory authority in the case of a person defending himself in a Rylands v Fletcher situation. The statute itself is in these circumstances a partial defence which becomes a complete defence on the negation of a lack of reasonable skill and care in the installation and maintenance of the authorized work. It was unnecessary in that case for his Honour to deal with the question of the onus of proof or of disproof of negligence; and, in my opinion, textually the formula used by his Honour is quite consistent with and indeed, if anything, points towards that burden falling on the defendant.

It will be observed that I have not found it necessary to advert to the difference said to result from a permissive authority given, and a mandatory obligation imposed, by statute. It seems to me that in either case the statute will be an answer if the authorized work is constructed and maintained with reasonable skill and care. It will be no more and no less an answer in either case.

I have dealt only with the above reported decisions because they were the principal cases pressed upon us in argument by the parties. But an examination of a much greater number of cases does indicate a divergence of judicial opinion. However, the only case decided by a Court of final resort in which the precise point here raised is dealt with is Northwestern Utilities Ltd v London Guarantee and Accident Co [3] .

I have expressed my own view of the principles to be applied in this case. I am of opinion that it accords with the advice of Lord Wright in Northwestern Utilities Ltd v London Guarantee and Accident Co [1] . No authority by which I am bound is to the contrary and many cases, with some of which I have dealt, though apparently to the contrary, are not actually so, in my opinion, when closely examined. I therefore conclude that the demurrer should be disallowed because in addition to the other reasons I have already stated, where the plaintiff alleges facts which prima facie describe a Rylands v Fletcher [2] situation, it rests on a defendant who sets up authority by statute as a defence, to assert either that the statute authorized the particular act which caused the mischief to the plaintiff, or that by no amount of skill and care could the escape be avoided, or that he executed and maintained with reasonable skill and care the work authorized by the statute, being the work which brought to the land the dangerous thing or substance whose escape caused the damage to the plaintiff.

1. [1936] A.C. 108. 2. (1868) L.R. 3 H.L. 330.

Reasonable skill and care in the context in which I have been using the expression requires the exercise of due skill and care having regard to all that is known or may be ascertained by inquiry of available methods of construction, supervision and inspection bearing upon keeping the dangerous thing or substance within the land to which it has been brought. The standard of care is necessarily high, partly because of the limited or qualified nature of the statutory authority and partly because of the capacity of the thing or substance to do harm.

There remains only the question whether the personal injuries sustained by the plaintiff by the escape of the gas to the land occupied by her can be included in the items of damage for which the defendant is responsible. Nuisance strictly so called is an interference with the enjoyment of rights over land. Because of its nature, it has been said that personal injuries caused by that interference should not be recoverable as part of the damages awarded for the nuisance. But this narrow, if perhaps logical, conclusion has not been universally accepted. Further nuisance has not been universally confined to its narrower historical significance. I cannot discover any reason why such injuries should not be included in the damages awarded in a case based on Rylands v Fletcher [2] . I would adopt if I might the language of a distinguished contributor to the Modern Law Review, vol. 10, p. 400, when he said:

The suggestion that I can recover for an explosion wrecking my conservatory or a horse trespassing on my rose bed, but not for an explosion blowing me out of my deck chair in my own garden, or a horse treading on my face as I sleep on my lawn, has little to commend it. The suggestion that the damages for the escape to the land of another of a dangerous thing or substance is so limited, in my opinion, confuses liability with consequence. It rests, so far as judicial pronouncement is concerned, solely upon Lord Macmillan's judgment in Read v J Lyons & Co Ltd [1] . That doctrine has not been adopted by any Court as the basis of decision in any subsequently reported case of which I am aware. Also, there are reported cases where damages for personal injuries have been included in awards of damages arising out of a Rylands v Fletcher situation: see Hale v Jennings Bros [2] . In my opinion, the doctrine ought not to be followed. Personal injuries sustained by reason of the escape to the plaintiff's land of a dangerous thing or substance brought to land by a defendant are, in my opinion, to be included in the damages caused by such escape. 1. (1868) L.R. 3 H.L. 330. 2. [1947] A.C. 156, at p. 173. 3. [1938] 1 All E.R. 579.

It is to be observed that the escape of gas which is pleaded as the ground of liability in this count is not charged as having been negligent or intentional.

Taking the matters pleaded in the count, the damage suffered by the plaintiff (respondent) would appear to have arisen from the lawful exercise of statutory powers of the company, and not otherwise. The company has a duty under the statute, when notified of an escape of gas from any pipe laid under a street pursuant to the statute, immediately to take effective measures to stop and prevent the gas from escaping. The count is not, of course, based upon any alleged breach of this duty. The imposition of the duty, however, is important. In my judgment its inclusion in the statute affords strong presumptive evidence that the legislature must have had in view that it would be an ordinary incident of carrying on this gas undertaking that gas would escape, from time to time, out of a pipe or pipes used in conveying gas under appropriate pressure to consumers: cf. Dunne v North Western Gas Board [3] . In order to uphold this count it would, I think, be necessary to propose as a proper foundation for it, that the legislature intended by the statute, that the company would under it be in the position of being required to keep the gas in the pipes at its peril in the sense of Rylands v Fletcher [4] .

1. [1964] 2 Q.B., at p. 833. 2. (1868) L.R. 3 H.L. 330.

The power to supply gas was actually given to the company by s. 11 of the Act of 1837 and s. 1 of the Act of 1858. By s. 23 of the Gas and Electricity Act, 1935 NSW, the company is obliged to supply gas at a defined pressure and is also obliged to supply gas to consumers, subject to the conditions which s. 28 prescribes. In my opinion it can be properly inferred, and should be inferred, from the legislative authorization of the use of a system of pipes to convey gas from its gasometers to consumers pursuant to s. 48 of the Act of 1837 and s. 3 of the Act of 1858, that the mere fact of the escape of gas from a pipe would not constitute a legal wrong.

It follows that on the facts pleaded in the second count, having regard to the statutory powers and duties of the company, the alleged escape of gas does not take the company within the rule in Rylands v Fletcher [1] . The count was admittedly pleaded in reliance on this rule.

The allegations in the count are not sufficient to found a claim in nuisance, if the view that it was in the mind of the legislature that gas would escape in the lawful exercise by the company of their franchise is correct, for, in that view, the escape of gas was not unlawful: Winfield on Tort, 8th ed. (1967), at pp. 400, 403, 406.

The first count of the declaration is one in negligence. It is not, of course, demurred to. The appeal relates only to the second count. I would allow the appeal.

This is an appeal from the decision of the Court of Appeal of the Supreme Court of New South Wales (Wallace P. and Jacobs J., Walsh J. dissenting) [2] overruling the defendant's demurrer to the second count of the plaintiff's statement of claim. The appellant, who was the defendant, was sued as the nominal defendant for the Australian Gas Light Co. and I shall refer to that company as "the company". The respondent I shall refer to as "the plaintiff".

The material part of the second count was as follows:

at all material times the Australian Gas Light Co. was enabled by statute to supply and distribute a dangerous thing, namely gas a substance liable to cause mischief if it escaped as the defendant well knew and to lay pipes under and along public streets to contain and carry such gas and pursuant to such power the said Australian Gas Light Co. did lay pipes under certain public streets and did use the same to contain and carry gas as aforesaid, and the plaintiff was the occupier of certain premises adjacent to a certain public street wherein certain pipes as aforesaid and for the purpose aforesaid had been laid and thereupon gas escaped from a pipe so laid and used as aforesaid and entered the said premises of the plaintiff whereby the plaintiff suffered the damage more particularly set forth in the first count hereof.

The count was no doubt pleaded as it was to attract the rule in Rylands v Fletcher [1] . Indeed, counsel for the plaintiff acknowledged this.

the defendant as to the second count of the declaration says that it is bad in substance.

It is intended to argue at the hearing of the demurrer to the second count of the declaration the following matters of law: -

1. That the "rule in Rylands v Fletcher" does not entitle a plaintiff to sue at law for personal bodily injuries.

2. That the defendant is acting pursuant to statutory authority. The defendant is required by the Australian Gas-Light Company's Acts, 1837 (as amended) and the Gas and Electricity Act, 1935-1965, to supply and distribute gas. The rule in Rylands v Fletcher does not apply so as to impose strict liability upon the defendant who is conducting an undertaking and distributing gas pursuant to mandatory legislative authorization.

I do not propose to spend any time upon the first point taken by the demurrer. Notwithstanding the observations made by Lord Macmillan in Read v J Lyons & Co Ltd [2] , I think that the limitation upon the rule in Rylands v Fletcher [1] for which the defendant so contends does not exist.

1. [1947] A.C., at p. 170. 2. (1868) L.R. 3 H.L. 330.

The second point taken by the demurrer does, however, require, what I have found to be, painstaking consideration.

The starting point of that consideration must be the count itself which alleges:

(1) that the company was enabled, by statute, to lay pipes under public streets and to carry therein gas which was a known dangerous thing and likely to cause mischief if it escaped;

(2) that "pursuant to such power" - that is no doubt the statutory power already referred to - the company did lay the pipes and used them to carry gas;

(3) that the plaintiff occupied premises adjoining the street in which the company had laid pipes under the authority and for the purpose aforesaid;

(4) that thereupon gas escaped from a pipe, entered the plaintiff's premises and injured the plaintiff.

I cannot read this count otherwise than as alleging that it was while the company was doing what it was authorized to do by statute, that gas, a dangerous substance, escaped from its pipes and entered the plaintiff's house and caused the damage complained of. Of course the allegation does not mean that the escape of gas was authorized by statute, but that the carrying of the gas to the point from which it escaped was authorized by statute. The pleading, therefore, alleges that the gas which did the damage was brought to the point of escape from the company's premises, i.e. the pipes, by and under statutory authority. An examination of the Australian Gas Light Company Acts, which it seems are what is referred to by the words "by statute" in the count, shows that the company has been authorized by Act of Parliament to lay pipes and carry gas therein and is required, in certain circumstances, to maintain supply. I propose to deal with the matter upon the basis of the count itself, which, appears to me, to allege what is substantially in conformity with the Acts.

In principle I cannot see how the case so pleaded is a Rylands v Fletcher case, nor, if it were such a case, how proof that the company had not been negligent in allowing the gas to escape from its pipes could negative its liability. The whole point of Rylands v Fletcher liability is that the exercise of care is irrelevant. The liability for injury by reason of the escape of the dangerous substance brought on to premises is absolute save for well defined defences such as an act of God. To admit a defence of no negligence as an answer to a Rylands v Fletcher claim would virtually defeat the very purpose of the rule itself and it is clear that the original foundation of the rule did not admit care as a defence in any circumstances at all. The duty established was to insure against damage from a dangerous thing brought upon premises if it escape, even without negligence. To plead and prove that gas escaped without negligence on the part of the company would be nothing to the point. As Lord Russell C.J. observed in Price v South Metropolitan Gas Co [1] :

It is clear, too, that where a gas company such as this, having statutory authority to lay pipes, does so in exercise of its statutory powers, the "wild beast" theory referred to in the well-known case of Fletcher v Rylands is inapplicable. 1. (1895) 65 L.J.Q.B. 126, at p. 127.

It was, I think, a correct understanding of the rule in Rylands v Fletcher that led to the decision in Green v Chelsea Waterworks Co [2] , that Rylands v Fletcher does not apply to the escape of what has been brought to the point where it escapes by the authority of an Act of Parliament. If a person acts in accordance with statutory authority in bringing a dangerous substance to his premises, why should he be absolutely liable if it escapes? The rule in Rylands v Fletcher [1a] was established to meet the case of one proprietor putting others in jeopardy by taking the risk of bringing something dangerous to his premises, but, if the bringing was within a statutory authority which it was intended should be exercised, the reason for the rule has no application. If it were to be established that a dangerous thing, brought upon premises by statutory authority, escaped through the negligence of the person who brought it, that would be another matter, but it would not be a matter within Rylands v Fletcher , rather it would depend upon the principles enunciated in Geddis v Proprietors of the Bann Reservoir [1] . This is what the decisions show.

1. (1894) 70 L.T. 547. 2. (1868) L.R. 3 H.L. 330. 3. (1878) 3 App. Cas. 430.

Thus in Green v Chelsea Waterworks Co [2] , it was decided, that, where negligence was negatived by a jury, and an adjoining occupier, injured by the escape of water from the authority's pipes, relied upon Rylands v Fletcher to establish absolute liability, the rule had no application. To the plaintiff's reliance upon Rylands v Fletcher Lindley L.J., with the concurrence of Kay and Smith L.JJ., said [3] :

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.

The decision in Green's Case [5] and the ground upon which it was based has been accepted in Australia. The most important case is Cox Bros (Aust) Ltd v Commissioner of Waterworks [6] . This was an action brought against an authority which, under statutory authority, maintained water mains in the streets of Adelaide. A main burst, water escaped and damaged the plaintiff's premises. It was decided inter alia that the defendant was not liable for damage done without proof of negligence. In other words, it was held that the rule in Rylands v Fletcher did not apply. Rich J. said [7] :

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.

Like views to those stated in Cox Bros (Aust) Ltd v Commissioner of Waterworks [1] were repeated by members of the Court in Metropolitan Water, Sewerage and Drainage Board v OK Elliott Ltd [2] :

1. (1933) 50 C.L.R. 108. 2. (1934) 52 C.L.R. 134.

I pass next to Thompson v Bankstown Municipal Council [3] . The most important statement in that case relating to the rule in Rylands v Fletcher [3a] is an observation by Kitto J. which, although not necessary for the decision, does appear to me to be in accord with the cases already cited. His Honour said: [4] :

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 for any injury occasioned to him by an escape of electric current, even if the utmost care had been observed. 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 1. (1953) 87 C.L.R. 619; 19 L.G.R. (N.S.W.) 1. 2. (1868) L.R. 3 H.L. 330. 3. (1953) 87 C.L.R., at p. 644; 19 L.G.R. (N.S.W.), at p. 15.

The last group of Australian cases to which I will refer are cases relating to the escape of sparks from railway engines. It has been firmly established since Port Glasgow and Newark Sailcloth Co v Caledonian Railway Co [5] , that to succeed a plaintiff who had been injured in his property by reason of an escape of sparks from a locomotive must prove negligence to obtain redress. The law was stated as follows by Lord Herschell L.C. [6] :

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.

There is, therefore, a weighty body of Australian authority as well as of long-standing English authority supporting what seems to me correct in principle, that is the rule in Rylands v Fletcher does not apply to the escape of something dangerous which has been brought upon land under statutory authority. There is, however, persuasive authority the other way, principally North-western Utilities Ltd v London Guarantee and Accident Co Ltd [4] . Before examining this case, however, I wish to distinguish one other authority which was relied upon to support the application of the rule in Rylands v Fletcher here. It is Charing Cross, West-End and City Electricity Supply Co v London Hydraulic Power Co [5] .

1. [1936] A.C. 108. 2. [1913] 3 K.B. 442; affirmed [1914] 3 K.B. 772.

This was an action for damages caused to the plaintiff's electric light mains in a street by the escape of water from the defendant's water pressure mains laid in the same street under statutory powers. The plaintiff alleged that the water escaped by reason of the defendant's negligence or that the defendants were liable as for a nuisance. The issue of negligence was decided in favour of the defendant. Scrutton J., however, found for the plaintiff applying Rylands v Fletcher but the learned judge did so with this observation [6] :

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.

I come now to Northwestern Utilities Ltd v London Guarantee and Accident Co Ltd [2] . This is a decision of the Privy Council. The case was one where the respondent's hotel had been destroyed by fire caused by the escape of natural gas from a main in the street belonging to the appellant and installed under a statutory authority. Gas escaped because the City of Edmonton in constructing a sewer brought about the fracture of the welded joints of the gas pipes. Although not alleged in the pleadings, the plaintiff made a case of negligence against the defendant which failed before a trial judge but succeeded before the Appellate Division. All this appears from the observations of the Privy Council [3] . The Privy Council decided that the decision of the Appellate Division should stand. It was said [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

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. It is, in their Lordships' judgment, impossible now for them to protest that they could have done nothing effective to prevent the accident: and in any case their Lordships cannot accept that as the true view.

The actual decision, therefore, does not govern this case. In the course of its opinion, however, the Board did make some observations, upon which the plaintiff here relies, which treat an undertaker bringing a dangerous thing to his premises under statutory authority as prima facie within the rule of Rylands v Fletcher and, therefore, prima facie within the rule of strict liability if it escapes, but armed with the 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". Both in bringing within the operation of the rule in Rylands v Fletcher the undertaker who with statutory authority brings a dangerous thing to his premises, and in introducing, as a defence, proof that the escape was without negligence on the part of the undertaker, it seems to me that this statement departs from the law as established by Rylands v Fletcher and the cases which follow it - particularly cases in this Court - and the cases relating to liability for breach of statutory duty. Because I do not regard the statement as part of the ratio decidendi of the case, I am at liberty to prefer the decisions of this Court and my own opinion, and I do so. 1. [1936] A.C. 108. 2. [1936] A.C., at pp. 117-118. 3. [1936] A.C., at pp. 117-118.

It is now necessary to consider whether there is any relevant statutory provision that does, directly or indirectly, impose upon a company liability for anything less than negligence pleaded and proved by the plaintiff. The only section which could be relied upon to do so is s. 79 of the Australian Gas Light Company Act of 1837, which is in these terms:

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.

I am therefore in agreement with Walsh J. in the Supreme Court and I would add that the examination of the authorities made by that learned judge - with which I agree - has relieved me from embarking upon a more extensive discussion of the cases.

The principal question in this case is whether the Australian Gas Light Co. can be liable, although not negligent, for harm done by an escape of coal gas from a gas main, the person harmed being an occupier of premises adjacent to the street where the main was laid.

There are two subordinate questions. One - on the basis that there is such a strict liability under the doctrine of Rylands v Fletcher [1] - is whether it extends to damages for personal injury. The other - on the basis that the Gas Co. has been exonerated from strict liability by statutory authority - is whether, in that event, the onus of alleging and proving negligence is upon the plaintiff or whether the company must establish that it exercised its statutory powers with due skill and care.

The case comes to this Court on appeal from the Supreme Court of New South Wales (Court of Appeal Division) [1] . That Court, by majority (Wallace P. and Jacobs J.A., Walsh J.A. dissenting), dismissed the demurrer of the defendant, the present appellant to the second count of the declaration of the plaintiff, the present respondent. I shall hereafter refer to the respondent as the plaintiff, and to the appellant as the defendant or sometimes for convenience as the Gas Co. Descriptions of the parties, incorporated by reference in the count in question, are as follows.

The plaintiff, presumably an infant, is said to sue "through her next friend", naming him. I assume that the provisions of O. V, r. 1, of the Rules of the Supreme Court were complied with, and that the plaintiff thus sues "by", not "through", a next friend duly appointed.

The defendant is described as "the secretary for the time being of the Australian Gas Light Co. an association of certain persons and liable by statute to be sued as nominal defendant on behalf of the said Australian Gas Light Co.".

The description of the defendant is obviously derived from an Act of the legislature of New South Wales, assented to on 7th September 1837. Its title is "An Act for lighting with gas the Town of Sydney in the Colony of New South Wales and to enable certain persons associated under the name style and firm of "The Australian Gas Light Company" to sue and be sued in the name of the secretary for the time being of the said company and for other purposes therein mentioned". The Gas Co. was constituted as a typical form of joint stock company of the period. The provisions of the Act were to continue to apply although the persons composing the company should change (s. 9). It was expressly declared that nothing in the Act should be construed to make the members of the company a body corporate (s. 10): and references to the company in later Acts appear as "they", not as "it". However, as time has gone on, numerous amending Acts have made the company akin to a company incorporated under the Companies Acts: for example the Australian Gas Light Company's Act of 1883 limited the liability of shareholders. The Gas and Electricity Act, 1935, s. 34 (5), provides that the Act of 1837, as amended by subsequent Acts, may be cited as the Australian Gas Light Company Acts, 1837-1935.

One of the amending Acts that is important for this case is that, enacted in 1858, intituled "An Act to enable the Australian Gas Light Company to extend their works to places beyond the boundaries and limits of the City of Sydney and to increase their capital stock". The Act of 1837 related to the supply of gas within the town of Sydney - not incorporated as a city until 1842. The Act of 1858, s. 1, provides that -

it shall be lawful for the said company to light and supply with gas all public streets highways roads ways lanes passages and buildings and also all private houses shops manufactories properties buildings and grounds beyond the boundaries and limits of the city of Sydney to continue and extend the existing mains and pipes of the said company and to erect additional works.

The Act of 1837 has been described in this Court as "a typical example of the private bill legislation of the period authorizing the establishment of a public utility": Benning v Sydney City Council [1] . This description makes it appropriate to refer at this point to a narrow and technical proposition advanced during the argument. The Act of 1837 being a private Act was, it was said, outside judicial notice unless it were pleaded and proved.

1. (1958) 100 C.L.R. 177, at p. 184; 4 L.G.R.A. 16, at p. 19.

The origin of the old rule that a party to an action who relies upon a private Act must plead it expressly, and prove it, is the principle that courts take notice of all public general Acts, but not of private Acts. But for a lawyer today it is no longer true that the consequence, judicial notice or not, depends upon a distinction between two kinds of statutes according to their subject matters. Rather it is the other way round, as is succinctly stated in Halsbury's Laws of England, 3rd ed., vol. 36, p. 363: "A statute is said to be public if it is one of which judicial notice is taken, private if it is one required to be pleaded and proved by the party seeking to take advantage of it." The distinction between public and private bills, which depends upon the nature of the subject matter and upon legislative procedures, is quite a different matter: see Ilbert - Legislative Methods and Forms (1901), pp. 28-35, et passim; Craies on Statute Law, 6th ed. (1963), pp. 557-562. The Act of 1837 was, by parliamentary classification, private legislation; and thus it is described as a private Act. It was included in the Government Printer's collection of the Private Acts of New South Wales published in 1863. But judicial notice is to be taken of it as if it were a public Act, because sections 82 and 83 so provide. They are as follows:

4. And be it further enacted That this Act shall not commence or take effect until the same shall have received the Royal approbation and the notification of such approbation shall have been made by His Excellency the Governor in the New South Wales Government Gazette.

5. And be it further enacted That when and as soon as this Act shall have received the Royal approbation and the notification of such approbation shall have been made as aforesaid by His Excellency the Governor in the New South Wales Government Gazette this Act shall be deemed and taken to be a public Act and shall be judicially taken notice of as such by the Judges of the Supreme Court of New South Wales and by all other Judges Justices and others within the Colony of New South Wales and its dependencies without being specially pleaded.

That is enough to dispose of the technicality we heard. To drive a nail into the coffin, I add that judicial notice would be taken of the Act of 1837 even without s. 83. That is because of the old rule that if a private Act be, by amendment or otherwise, recognized by a later Act which is a public Act, judicial notice will thereafter be taken of the private Act as if it had itself been a public Act: see Samuel v Evans [1] ; and notes to Benson v Welby [2] , and to Reg v Inhabitants of Milton [3] . In New South Wales the Acts Shortening Act, 1852, s. 5, provided that "Every Act made after the commencement of this Act shall be deemed and taken to be a Public Act and shall be judicially taken notice of as such unless the contrary be expressly provided and declared by such Act" (see now the Interpretation Act of 1897 NSW, s. 13). By virtue of this the Gas Company's Act of 1858 abovementioned was a public Act. As it expressly recognized the Act of 1837, judicial notice would have had to be taken of that Act, even if s. 83 had not commanded it. Thus we must take both the Act of 1837 and the Act of 1858, and others comprehended in the description Australian Gas Light Company Acts, 1837-1935, so far as relevant, as parts of the law that governs this case. The contrary proposition sounded, I thought, odd in the mouth of counsel for the plaintiff; for the plaintiff's declaration, which he was supporting, alleged as the ground for suing the defendant, Benning, that he is liable by statute to be sued on behalf of the Gas Co.; and the statute which so provides is the Act of 1837. 1. (1788) 2 T.R. 569, at p. 575 [100 E.R. 306, at p. 309]. 2. (1670) 2 Wms. Saund. 154, at p. 155 [85 E.R. 891, at p. 892]. 3. (1843) 1 C. & K. 58 [174 E.R. 711].

Then it was said that there was no evidence that the Act of 1837 ever came into force; because, it was said, it was not proved that the Governor's assent to it had been notified in the Gazette , as s. 82 required. I did not understand how it could be said for the plaintiff in one breath that the Act was not proved to be in force and that the defendant was by it made liable to be sued. Even if such anomalous preciosity were permissible, its effect is dispelled by the enactments after 1837 which proceed on the basis of the Act of 1837 being in force; and these parliamentary recognitions provide ample evidence that it came into force, and that, as amended, it continues to be in force. The date of its commencement must, I consider, be taken to be 7th September, 1837, as appearing in the copy issued by the Government Printer: see Acts Shortening Act, 1858, s. 2.

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.

1. [1968] 1 Ch. 605. 2. [1968] 1 Ch., at p. 632.

Whether or not that course be directed, it is obviously important that steps be taken by the parties to fix with precision the question of law to be determined. Section 59 of the Common Law Procedure Act 1899-1965 NSW, is as follows:

(1) Either party may object by demurrer to the pleading of the opposite party on the ground that such pleading does not set forth sufficient ground of action, defence, or reply, as the case may be.

(2) Where issue is joined on such demurrer the Court shall proceed and give judgment according as the very right of the cause and matter in law shall appear unto them, without regarding any imperfection, omission, defect in, or lack of form.

(3) No judgment shall be arrested, stayed, or reversed for any such imperfection, omission, defect in, or lack of form.

In this case our duty to decide as "the very right of the cause and matter in law shall appear" was made embarrassing and difficult when, at the end of six days' argument, the parties were not agreed as to what Act we should take it was referred to in the averment in the declaration that the Gas Co. was "enabled by statute to supply and distribute gas". It chances that, in the view I take, it does not matter whether this is read as referring to the Act of 1837 (as the defendant's counsel apparently assumed) or to the Act of 1858 (as the plaintiff's counsel suggested). Nevertheless this lack of certainty, which could have been cured by the parties before the argument on the demurrer came on in the Supreme Court, was disquieting. And I found the suggestion that the plaintiff could in some way rely upon an ambiguity in the declaration still more disquieting: to try to repel an attack on a pleading by pointing to a suggested formal weakness in it seems to be futile. I therefore go now to "the very right of the cause and matter" as in law it appears to me.

I need not set out in full the count which is demurred to. It appears in the judgments in the Supreme Court and in the judgments of the Chief Justice and of other members of this Court. It follows fairly closely the precedent of a declaration based upon the doctrine of Rylands v Fletcher which is to be found in Mr. Rath's book, Principles and Precedents of Pleading in the Supreme Court of New South Wales at Common Law (1961) (p. 119). It appears there among declarations for nuisances. That, I think, is its proper place. I shall return to this later. Here I would say only that we are accustomed to actions in tort being classified under traditional rubrics. Doubtless it may still be helpful, and often it is important, to say whether a particular action lies in trespass or in case; and if in case whether it is for negligence or nuisance. But labels depend upon the law applicable to the facts. We are not first to fix a label and then read the law from the label. Casting back to s. 59 (1) of the Common Law Procedure Act quoted above, a demurrer is not to be allowed simply because a count is not couched in the language of precedents commonly used for some nominate cause of action. The question is whether or not the averments of the count "set forth sufficient grounds of action". If they do, it really matters not by what name the action is called, although in considering the matter it is natural to ask what is the cause of action asserted; and, having given it a name, to ask what are the essentials of such a cause of action.

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] .

1. [1963] N.S.W.R. 737, at p. 767. 2. (1880) 5 Q.B.D. 597. 3. (1918) 88 L.J.K.B. 323. 4. [1936] A.C. 108, at p. 118. 5. (1967) 120 C.L.R. 118; 14 L.G.R A. 413. 6. (1826) 5 B. & C. 466 [108 E.R. 173]. 7. (1868) L.R. 3 H.L. 330.

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),

whereby it is forbidden that a man do on his own land what may harm his neighbour as if he should raise the level of a pond on his own land or make a new pond whereby he harms his neighbour, as for example if his neighbour's land is thus flooded; this will be a wrongful nuisance to his neighbour's free tenement unless his neighbour has given him permission to do it. 1. (1866) L.R. 1 Ex. 265; 14 L.T. (N.S.) 523. 2. (1704) 2 Ld. Raym. 1089 [92 E.R. 222]; 1 Salk. 21, 360 [91 E.R. 20, 314]; 2 Salk. 770 [91 E.R. 634]; Holt K.B. 500 [ 90 E.R. 1175]. 3. (1704) Holt K.B., at pp. 500, 501 [ 90 E.R. 1175]. 4. (1704) Holt K.B., at p. 501 [ 90 E.R. 1175]. 5. (1872) L.R. 7 Q.B. 661, as reported in 26 L.T. 966, at p. 967.

There is never much to be gained by searching in mediaeval law for presages of modern rules, interesting though such doctrinal genealogy may be. I mention these matters only to shew that it is hardly surprising that Lord Moulton should have said in 1913:

"The legal principle that underlies the decision in Fletcher v Rylands was well known in English law from a very early period, but it was explained and formulated in a strikingly clear and authoritative manner in that case and therefore is usually referred to by that name. It is nothing other than an application of the old maxim "Sic utere tuo ut alienum non laedas" ": Rickards v Lothian [1] . 1. [1913] A.C. 263, at p. 275.

Lord Macmillan said, in Read v J Lyons & Co Ltd [2] :

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].

Judgment having been given for the defendants, the plaintiff brought the case on error to the Court of Exchequer Chamber. Whether, as the result of the famous judgment of Blackburn J. there, we now describe the case, and all those which have been based upon it, as of the genus nuisance or as actions sui generis which are congeners of nuisance is a question of classification and description. Writers of text-books can tabulate for students of law distinctions between actionable nuisances of traditional kinds and Rylands v Fletcher actions. The distinctions are not, I think, fundamental. Indeed I accept, as historically accurate, the statement in Professor Newark's well-known article, The Boundaries of Nuisance - Law Quarterly Review (1949), vol. 65, at p. 488 - that "what was novel in Rylands v Fletcher, or at least clearly decided for the first time, was that as between adjacent occupiers an isolated escape is actionable". Before then a nuisance had been generally considered to be a more or less permanent or continuous or constantly recurring state of affairs which was "hurtful or injurious to the senses". It may be that the name "nuisance" is still not apt, in strict legal parlance, for all forms of harm actionable by virtue of the decision in Rylands v Fletcher . Lord Denning, then Denning L.J., said in 1957:

"I quite agree that a private nuisance always involves some degree of repetition or continuance. An isolated act which is over and done with, once and for all, may give rise to an action for negligence or an action under the rule in Rylands v Fletcher, but not an action for nuisance": Attorney-General v PYA Quarries Ltd [1] . But, taking that as a matter of traditional nomenclature to be so, it has no bearing on this case. An escape of gas from a leaking pipe in which gas is being maintained under pressure is not like an explosion, something which is over and done with. It obviously has the quality of continuance which is said to be necessary to make a nuisance. However that may be, it has been rightly said that "whatever views the Exchequer Chamber may have had about their decision, succeeding generations have regarded it as the starting-point of a liability wider than any that preceded it": Winfield on Tort, 8th ed. (1967), p. 411. "Rylands v. Fletcher" has become the name of a separate chapter in the law of tort. Its doctrine has been adopted under this name in the family of the common law. The only question is what are its scope and limits. In any particular case - including this case - that question must, I think, be answered by bearing in mind two things. One is the statement of the principle a hundred years ago: the other is applications or rejections of it in circumstances supposedly analogous to the case in hand. More than a century has passed since the judgment of the Exchequer Chamber [1] and the endorsement of it in the House of Lords [2] with Lord Cairns' modification and elaboration by his reference to a "non-natural use" of land. In that time the doctrine has proved prolific of plaintiffs. The words in which it was stated, and its ambit and application, have been the subject of both elaboration and restrictions, and in many American jurisdictions rejections. 1. [1957] 2 Q.B. 169, at p. 192. 2. (1866) L.R. 1 Ex. 265. 3. (1868) L.R. 3 H.L. 330.

The foundation of the rule is that the bringing of things with mischievous possibilities or propensities upon land creates a duty to confine them there. The harm they do by escaping could not occur but for the act of bringing them to the place whence they escape. This can be seen as a reversion to the common law of earlier times when a person who created harm must bear the responsibility simply because he was the author of the harm. Liability then depended rather on causa than on culpa. Subject to recognized exceptions, the person who brought into existence a causa sine qua non was ordinarily responsible for its natural consequences. He might be excused by shewing that, according to the simple notions which the law adopted and still uses to determine causal relationships and to fix liability, some event intervened and broke the natural chain of causation, so that that event, and not the earlier act of the defendant, was to be regarded as the proximate cause of damage. This view of cause and consequence as determinant of legal liability still explains many of the so-called exceptions to the rule in Rylands v Fletcher - act of God, the act of the plaintiff himself, the act of a third party, or, in Carstairs v Taylor [3] , the act of a rat in gnawing a hole. Each displaces the liability of the defendant because it is a novus actus interveniens - to use the phrase by which courts have accommodated the philosophy of cause and effect to practical considerations when fixing legal liability for harm and determining where the burden of a loss must fall.

There are one or two questions of terminology which it is as well to mention here. The rule, doctrine, or principle, whatever you choose to call it, is sometimes described as "absolute liability". But there are too many exceptions to its application for the adjective "absolute" to stand well. The term "strict liability" seems better, if it be taken as meaning that neither an intention to do harm nor negligence resulting in harm is necessary for liability: that liability is not founded on either dolus or culpa. Sometimes the idea of strict liability, in the relevant sense, is expressed as "liability without fault". There can be no objection to this expression if the word "fault" is used to connote moral blame for negligence or evil intent. But fault may mean simply a falling short of some requirement. It was in this sense that Blackburn J. said that the question in Fletcher v Rylands was whether the plaintiff could establish that his loss was "the consequence of some default for which the defendants are responsible". The default of the defendants lay simply in failure to prevent the water escaping. Fault in the sense of a falling short in this way of an obligation imposed by law need not import moral blame.

Having put out of the way references to absolute liability and fault in expressions which can be used argumentatively to beg the question, I pass to what was said by Blackburn J. and by Lord Cairns. I do so because the parties referred to certain words and phrases they used which have been prominent in decisions in other cases. Sometimes they have been used to support distinctions which to me seem to have been founded more on verbalisms than on logic or experience. What the Court of Exchequer Chamber and the House of Lords did was to state a doctrine or principle of the common law. To regard the words used as if they were the provisions of a statute defining in precise and permanent terms the limits of legal rights and duties seems to me a mistake.

At the risk of appearing pretentious I venture to quote a passage from Plowden's Reports written long ago. It is outmoded now in reference to statute law, but it is still worth remembering and apposite in relation to pronouncements of common law doctrine. The common law has still an inherent capacity of development. In applying it to present-day conditions we must have regard to precedents of the past; but we are not to stultify it by tying living principles to words used in the past. Plowden wrote, in or about 1578 [1] :

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.

First, there can be no doubt that gas is a thing likely to do mischief if it escapes. That has been said in judgments of high authority. Citation would be superfluous. It is obvious.

Next, any attempt to exclude the decision in Rylands v Fletcher on the ground that the Gas Co. had no title to the land, the public street, where its pipe was, must fail. I have already dealt with that. Suppliers of gas, water and electricity have in many cases been held liable for harm caused by escapes or discharges from pipes or wires, laid in or erected above streets and roads. This is an example of the way in which courts have extracted the kernel of principle from its shell of words - "his land". Mains are in a different position from domestic pipes carrying water or gas within the premises of a consumer. In the same way domestic wiring for electricity is in a different position from street wires carrying the main current. In Canada this distinction has been put in a concrete form by saying that a gas company is responsible for the maintenance of gas mains and service pipes leading from the mains so far only as the kerb of the street: Snyder v Moncton Electricity & Gas Co [1] . All the dicta in all the cases on this aspect may not be logically reconcilable. But in this case that need not trouble us, for the averment in the count is that gas escaped from a pipe laid under a public street. For the purposes of the demurrer the Gas Co. had control of the pipe up to the point of escape, to the complete exclusion of the plaintiff.

The next aspect of the verbal formulation of the rule is that in the words of Blackburn J. the defendant must have brought the mischievous thing upon his land "for his own purposes". Seizing on this phrase the defendant seriously argued that the Gas Co. did not lay its pipes or put gas in them for its own purposes. It was said that the legislature had authorized the company to supply gas so that the public might benefit rather than to enable the proprietors to make profits. The Gas Co., it was said, was thus virtually in the same position as a nationalized industry: and that meant that what it did was not for its "own purposes" but for community purposes. Reference was made to the judgment of the Court of Appeal in Dunne v North Western Gas Board [2] . Of this I need say no more than that the purpose of the Gas Co. in laying the pipes and filling them with gas was as I see it to supply gas in accordance with its statutory powers and duties. I add that I am quite unable to accept the suggestion that an enterprise which is set up by Parliament or authorized by Parliament to operate for the advantage of the public, whether or not it be "nationalized", is thereby exonerated from liability for harm done to members of the public which is not an essential and unavoidable incident of its carrying on its operations. If avoidable harm be done to one of the Queen's subjects, why should it matter whether it was done by a government instrumentality or by some private enterprise?

Finally it becomes necessary to consider the "condition" - as in Read v J Lyons & Co Ltd [3] , Viscount Simon called it - of a "non-natural use" of the land. I shall not try here to see a clear view through the clouds of ambiguities and uncertainties of that phrase. The suggested substitutes of an "extraordinary", "unusual", "abnormal", "exceptional" or in the United States "ultra hazardous" use seem to me to make confusion worse. I shall not go through cases which may be found collected in recent editions of Salmond on Torts and Winfield on Tort and other textbooks. Some of them seem to me to make a natural or nonnatural use of land depend not on any certain objective criteria, but on whether it is a use of such a character that the defendant ought, in the opinion of the court determining the particular case, to take the risk of having a dangerous thing where it was. The remarks of Viscount Simon in Read v J Lyons & Co Ltd [1] , and the discussions by Professor Newark in his article in the Modern Law Review, (1949), vol. 65, at p. 488, and by Dr Stallybrass in the Cambridge Law Journal (1929), vol. 3, p. 376, seem to me inconclusive. Collingwood v Home and Colonial Stores Ltd [2] , is one among many cases which adopt Lord Moulton's words in Rickards v Lothian [3] :

It is not every use to which land is put that brings into play that principle [of Rylands v Fletcher]. It must be some special use bringing with it increased danger to others, and must not merely be the ordinary use of the land or such a use as is proper for the general benefit of the community. If I had only to apply literally Lord Moulton's words, I would have thought that putting gas mains under streets was today a natural and ordinary use of land: see e.g. and by way of analogy Eastern Asia Navigation Co Ltd v Fremantle Harbour Trust Commissioners [4] . But for present purposes it seems that bringing upon land something of a kind not naturally found there is to be called a non-natural use of the land. Thus in 1901 Farwell J. said of gas pipes laid in a road: "It was clearly a non-natural use of the land to put gas pipes there, so that the defendants must keep them at their own peril": Batcheller v Tunbridge Wells Gas Co [5] . Since then gas pipes and escapes of gas have often been taken to be within the principle of Rylands v Fletcher . I simply accept those decisions as part of its kernel. 1. [1947] A.C. 156, at p. 167. 2. [1947] A.C. 156. 3. [1936] 3 All E.R. 200. 4. [1913] A.C. 263, at p. 280. 5. (1951) 83 C.L.R. 353, at pp. 388, 397. 6. (1901) 84 L.T. 765, at p. 766.

In my opinion then the Gas Co.'s operations and harm done by escape of gas from its main bring the case squarely within the rule in Rylands v Fletcher , unless some exception, excuse or defence makes it inapplicable. Before considering specific exceptions, excuses and defences there are two general propositions strongly urged for the defendant. The first was an emphatic pointing to the words of Lindley L.J. in Green v Chelsea Waterworks Co [6] , that the case of Rylands v Fletcher "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". That was described by Viscount Simon, in Read v J Lyons & Co Ltd [1] , as "a valuable warning". I trust I do not fail to heed it: but I cannot fail to notice that in the seventy-five years since the warning was uttered, Rylands v Fletcher has come to cover a variety of situations; and many things of very differing kinds have been held to be likely to do mischief if they should escape from confinement. There has been perhaps generosity in subsumption, but not, I think, any deliberate disturbance or extension of the major premise. It is true that in 1946 Lord Simonds said:

It is possible that the rule should be extended to include the case where something has escaped from a pipe or whatever it may be which has been laid and maintained by the defendant by virtue of some right or franchise in the land of another: Read v J Lyons & Co Ltd [2] But I do not think that to apply the rule in the situation postulated really involves any extension of it: rather, as I have already said, it appears to me an extraction of its essence from the narrow words "his land". Moreover, even if it be an extension, the Privy Council has recognized and approved it. 1. (1894) 70 L.T. 547, at p. 549. 2. [1947] A.C., at p. 167. 3. [1947] A.C. 156, at p. 183.

It was also urged by counsel for the defendant that we ought not to hold that the Gas Co. had become an "insurer". But that merely begs the question. The question is: what are the liabilities in law of the company in the circumstances alleged in the plaintiff's declaration? They are neither diminished nor increased by descriptive nouns and adjectives.

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:

Even the jurisdictions which reject Rylands v Fletcher by name have accepted and applied the principle of the case under the cloak of various other theories. Most frequently, in all of the American courts, the same strict liability is imposed upon defendants under the name of nuisance. It is perhaps not without interest, for those who like to see judicially made law as responsive to current social needs, to notice that in France too the course of judicial interpretation of art. 1384, al. 1, of the Civil Code, culminating in the Affaire Jand'heur in 1930, has brought about a principle of strict liability not dissimilar to the English and American rule; and that the defences, force majeure, cas fortuit and cause étrangère, resemble the exceptions or defences which English law recognizes; and that water and gas pipes and electricity wires have been held by French courts to attract liability under art. 1384, al. 1. 1. [1943] K.B. 467, at p. 471. 2. (1868) L.R. 3 H.L. 330.

In saying these things I am not to be taken as unadvisedly espousing the idea hinted at in the Supreme Court that we are at liberty to decide cases according to our own conceptions of "social realities". That would be to allow individual predilection to masquerade as principle. But in deciding upon the application of common law principles in new situations, courts are not required to be unaware of consequences or unmoved by them. In giving the judgment of the Privy Council in Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd [1] , Lord Reid remarked, "There has in recent times been much development of the law of tort". If this fact, patent to every student of the law, gains anything from further judicial recognition in high places, I may add a well-known passage from a judgment of Lord Radcliffe:

No one really doubts that the common law is a body of law which develops in process of time in response to the developments of the society in which it rules. Its movement may not be perceptible at any distinct point of time, nor can we always say how it gets from one point to another; but I do not think that, for all that, we need abandon the conviction of Galileo that somehow, by some means, there is a movement that takes place: Lister v Romford Ice and Cold Storage Co Ltd [2] . We need not doubt, nor need we disguise, that this movement and development of the law is the result of the creative work of courts making at times a conscious choice between allowing or disallowing a remedy, and thus creating or denying a right. Nevertheless those who insist that the common law is still on the move should remember that it must always march in step. Decisions in cases passing at the moment must be in step with those which have just gone past, although not necessarily with those at the head of the column. Moving the metaphor from the parade ground to the field, it is as sound a maxim for law as for war that operations should be from a firm base, that an advance must be from a position which has been securely established. 1. [1967] 1 A.C. 617, at p. 638. 2. [1957] A.C. 555, at pp. 591, 592.

I go now to consider whether, on the pleadings, this case is outside the rule in Rylands v Fletcher [3] .

The breach of duty, the fault if one does not shy off that term, which gives rise to liability in a Rylands v Fletcher case is the failure to keep the potentially harmful thing in confinement. This provides the ground for one group of exceptions or defences, those which depend upon the harmful thing being released from confinement by some event which absolves the defendant from responsibility. One such event is if the plaintiff should himself release it. Other events are acts of God, in the untheological language of lawyers, and acts of a third party. These, as I have said, release the defendant from strict liability because they are interruptions of an ordinary sequence of cause and consequence. For example, suppose gas escaped because some malicious person punctured a gas pipe with a pick. This would be a defence in an action based upon Rylands v Fletcher . Under the common law system of pleading it would be raised by a plea of confession and avoidance. The onus of proving it would lie on the defendant. But such a defence would not avail him if any precaution had been omitted which it would have been reasonable to take against interference by strangers which might reasonably have been foreseen. It is true that the issue would be substantially the same as it would be in an action for negligence. But the onus would fall upon the defendant, not upon the plaintiff, because the plaintiff's case would not be that the defendant was negligent but simply that he failed to keep his gas in his pipe. If the defendant would then excuse himself by saying that it escaped because of the act of a stranger, he must, as I understand the matter, shew that this was not something against which he could and should have taken precautions. In A Prosser & Son Ltd v Levy [1] , the Court of Appeal said:

In order to excuse themselves, the trustees must show that the escape of water was due to the act of a subsequent conscious volition. It is clear from the decision of the Privy Council in Dominion Natural Gas Co Ltd v Collins & Perkins [2] that the onus of showing this is on them. If they can show that the proximate cause of the damage is the malicious act of a third party against which no precautions would have been of use they are not liable in damages. This I accept, except that it would I think be better to say not that "no precautions would have been of use", but that no precautions which could reasonably have been taken would have been of use. 1. [1955] 3 All E.R. 577, at p. 587; [1955] 1 W.L.R. 1224, at p. 1234. 2. [1909] A.C. 640.

In the present case the defence, or exception, relied upon is of a different order. It is not directed to excusing the escape of the gas, but to excluding the operation of the rule in Rylands v Fletcher at an earlier stage - by shewing that the defendant was authorized by law to have the gas at the place whence it escaped. It is said that, if that were so, the plaintiff would have no ground of complaint unless the defendant had by negligence allowed the gas to escape. An analogy is suggested in that a defendant does not incur strict liability to a plaintiff with whose approval he has brought a harmful thing upon his own land. As Viscount Finlay said in Attorney-General v Cory Bros & Co Ltd [1] ,

A plaintiff who is himself a consenting party to the accumulation cannot rely simply upon the escape of the accumulated material; he must further establish that the escape was due to want of reasonable care on the part of the person who made the deposit. The defendant in the present case seeks to extract a similar result from the statutory authority of the Gas Co. to supply gas through its mains. It was argued that the principle of strict liability never came into operation at all, that Rylands v Fletcher [2] had been pushed aside by Parliament: that therefore the Gas Co. could only be liable if it were negligent; and that the plaintiff by alleging the statute and not alleging negligence had put herself out of court. If that were so, the defendant would be entitled to rely upon an old rule of pleading which, as stated in Comyn's Digest, tit. "Pleader", C 29, is, "If a man by the allegation of a thing not necessary shows that he had no cause of action, this, though surplusage, shall hurt". But is the basic proposition valid? I turn to the legislation on which the defendant mainly relied. 1. [1921] 1 A.C. 521, at p. 539. 2. (1868) L.R. 3 H.L. 330.

Some general governing principles are so well settled that I can set them out without supporting citations.

There is no magic in the words "statutory authority". Whether or not a statute exonerates from a liability in tort, which in the absence of the statute would be incurred, depends on the terms of the statute and their effect in the particular case. The question is always one of statutory construction. The rule in Rylands v Fletcher may be excluded by a statute authorizing the doing of certain work or the conduct of some activity; but whether or not it is excluded can only be determined by reading the statute: and that I think does not depend simply on whether a statute authorizes the bringing of a thing upon land, but on whether it expressly or by implication exonerates from liability for harm done if it should escape. The mere fact that a statute makes it lawful for a man to bring something to a place and accumulate it there does not to my mind exonerate him from liabilities which the law imposes in consequence of his doing so. After all, it was lawful for Rylands and his partner to accumulate water on their land. Does it make any difference that their right to do so arose from their being freeholders, not by virtue of some statute conferring rights similar to that of a freeholder?

When a statute authorizes the carrying on of an activity which cannot be carried on without creating a nuisance or doing other harm, the nuisance or harm, to the extent that it is an inevitable concomitant of doing the authorized work, is itself made lawful; and its occurrence will therefore create no liability, except for such compensation, if any, as is provided for in the authorizing statute or by some other relevant enactment. But, except where Parliament has prescribed the place where and the method by which the work is to be done, the authorized undertaker must in choosing the place, time, manner, method, equipment and appliances for the conduct of his operations, use due skill and care and act reasonably to avoid avoidable harm. Thus in Caledonian Collieries Ltd v Speirs [1] , there is a reference, in the judgment of the majority of the Court, to

the well-settled principle that when statutory powers are conferred they must be exercised with reasonable care, so that if those who exercise them could by reasonable precaution have prevented an injury which has been occasioned, and was likely to be occasioned, by their exercise, damages for negligence may be recovered. 1. (1957) 97 C.L.R. 202, at p. 220.

In a case where damages are not sought for the negligent exercise of statutory powers, but a statutory power is alleged as a defence in an action founded on strict liability, it is I consider for the defendant to shew that the power was properly exercised. He would have to shew that the operations from which the harm arose were done in the exercise of the statutory authority; and that, I consider, would involve shewing that they were done with due skill and care to avoid avoidable harm.

The Extent of the Burden of Proof of Statutory Authority.

What I have just said may seem too abrupt an opinion for a debatable topic - the onus of proof when an issue of care or want of care arises in connexion with a defence of statutory authority. I shall therefore explain my reasons for my conclusion on this aspect. It accords with that of the Chief Justice, whose judgment I have had the advantage of reading. In the view I take of the effect of the "nuisance clause", s. 79 of the Act of 1837, what I say may be supererogatory in this case: but, as will appear later, on one construction of the averment that the plaintiff was an "occupier" the question could be important.

I start with a statement by Lord Greene in J & J Makin Ltd v London and North Eastern Railway Co [1] (I have put the relevant words in italics):

The position of the defendants in bringing on their land an accumulation of water would have been that, as they did so under statutory powers, they could avoid the ordinary liability based on what is commonly called the rule in Rylands v Fletcher if they could show that the water had escaped without negligence on their part. That, said specifically in relation to a Rylands v Fletcher case, conforms with principle, well established in England, as to the onus of proof when statutory authority is relied upon as a defence in an action of nuisance. 1. [1943] 1 K.B. 467, at p. 470.

The question can arise in either of two different situations. In each a defendant relying upon statutory authority as a defence must shew that he was authorized by the statute to create the nuisance complained of, or was by the statute exonerated from liability for doing so. One situation is when a statute authorizes the carrying out of some work, or the carrying on of some activity, which cannot be done or carried on without creating a nuisance or otherwise interfering with private rights. The other situation is when, by the exercise of due skill and care, the authorized work can be done without creating any nuisance or interfering at all with private rights.

I take it as now well settled that, in the first situation, the law is as it was stated by Lord Dunedin in Manchester Corporation v Farnworth [2] . His Lordship said:

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.

Whatever may have been said by way of dicta in earlier cases in this Court, I think we should now follow what Lord Wright said in giving the judgment of the Privy Council in Northwestern Utilities Ltd v London Guarantee and Accident Co Ltd [2] . I should add that this view of the law has been expressly accepted in several noteworthy judgments in Canadian jurisdictions. I refer to these simply to shew what company I keep in my view of the common law rule: Crossman v Moncton Electricity & Gas Co [3] ; J P Porter Co Ltd v Bell [4] ; Turpin v Halifax-Dartmouth Bridge Commission [5] ; BC Pea Growers Ltd v City of Portage La Prairie [6] .

1. [1936] A.C. 108, in particular at pp. 119 and 121. 2. [1940] 4 D.L.R. 127. 3. [1955] 1 D.L.R. 62. 4. (1959) 21 D.L.R. (2d) 623. 5. (1963) 43 D.L.R. (2d) 713.

The Gas Co. sought to rely upon what were called the railway engine spark cases. It was said that these supported the proposition that, as the company was acting under the authority of a statute, strict liability had gone: that the plaintiff could only succeed if she alleged and proved that the escape of gas was the result of negligence on the part of the company. But the analogy with the railway cases was, I consider, mistaken. They are in a different field.

Sparks emitted by steam locomotives are things within the principle of Rylands v Fletcher . The proprietors of a railway are thus liable for damage caused by fire started by sparks from an engine, unless they be protected by statute. That was decided in 1868 in Jones v Festiniog Railway Co [7] . But, when a railway company is authorized by statute to carry on its railway undertaking, and it does so in the place and by the means authorized, it is not liable for harm done, not caused by negligence but in the ordinary and normal use of the railway. In other words, the company is not liable for acts done in the due exercise of its statutory powers: Vaughan v Taff Vale Railway Co [8] ; Canadian Pacific Railway Co v Roy [9] . That leaves open the question whether, in a case of fire caused by sparks from an engine, it is for the plaintiff to prove negligence, or for the defendant railway company, relying upon its statutory authority, to prove that it had adopted all reasonable precautions to obviate the risk of fire. The answer to that question depends upon the now generally accepted fact that the emission of sparks from coal-burning steam locomotives is an unavoidable incident of their normal use - that no method exists whereby the escape of sparks from such an engine can be entirely eliminated. A plaintiff harmed by fire therefore has the burden of proving that the defendant railway authority failed to exercise due care and use proper appliances to lessen the danger from the escape of sparks: Railways Commissioner (SA) v Riggs [1] . The railway cases have thus, not illogically, long followed a different course from cases of the exercise of statutory powers which do not necessarily involve the creation of a nuisance or other harm. Statutory authority to run a railway, using steam engines, displaces the strict liability which would otherwise arise from the escape of sparks.

1. (1868) L.R. 3 Q.B. 733. 2. (1860) 5 H. & N. 679 [157 E.R. 1351]. 3. [1902] A.C. 220. 4. (1951) 84 C.L.R. 586.

The contrast with the present case is plain. You cannot have a steam locomotive which does not emit sparks. Therefore, you are not liable, in the absence of negligence, for failing to prevent the escape of sparks. You can have a gas main which does not allow gas to escape. Therefore, if you put gas in mains, you must at your peril prevent its escaping. You are not excused merely because a statute empowered you to put it there. I turn then to the statutes relevant in this case to see whether they do, expressly or by necessary implication, abrogate the rule in Rylands v Fletcher [2] .

I shall refer primarily to the Act of 1837, particularly to such provisions of it as were expressly carried, mutatis mutandis, into the Act of 1858 or are matched by corresponding provisions there. I need make only an incidental reference to later Acts.

Section 48 of the 1837 Act provides that it shall be lawful to erect gasometers and other works, to break up streets and lay mains and pipes, to erect lamps and to do a variety of other acts to enable gas light to be provided for streets and houses. The corresponding section in the 1858 Act is s. 3.

Sections 61 and 62 were emphasized in argument - and rightly so, although the inference to be drawn from them is, I consider, the opposite of that which counsel for the defendant invited us to draw. They were not taken into the Act of 1858; but as they are significant for what they suggest as well as for what they say, I refer to them. Section 61 states that "when any gas shall be found to escape from any of the pipes which shall be laid down the said company shall immediately after notice given to them of any such escape cause the most speedy and effectual measures to be taken to stop and prevent such gas from escaping": and if within twenty-four hours the company should not "effectually stop and prevent any further escape and wholly and satisfactorily remove the cause of complaint" it was to be liable to a penalty for each day "during which the gas shall be suffered to escape as aforesaid". There were also penalties if the water supply of Sydney should be contaminated by any escape of gas from the works, mains or pipes of the company, and the company did not "effectually stop and prevent gas from escaping". These provisions plainly demonstrate that escapes of gas from gas pipes are not inevitable and unavoidable - unlike, for example, sparks from the funnels of railway engines. If escapes of gas do occur they can be effectually stopped and prevented. A statutory authority to supply gas is thus not an authority to let gas escape. Furthermore, a penalty is incurred if an escape be not promptly prevented - whether or not it has done any actual harm, it creates a risk of harm and this must be stopped. That in no way means that if it actually does harm a person harmed has no remedy.

Section 66 was referred to because of its mandatory character. By it the company was obliged to supply roads and public places in Sydney with "gas of such quality as shall at all times afford a better light than could be obtained from oil lamps". This was an important provision in the age of gas light. To comply with it the company had obviously to keep up a pressure of gas in its pipes. Today, when gas is used mainly for heating rather than for lighting, the relevant provisions are ss. 23-24 of the Gas and Electricity Act, 1935-1967 NSW, which prescribe standards of pressure, heating power, and purity of gas to be provided by any gas company. The obligation to keep gas in mains and pipes at pressure means that ordinarily "escape" of gas is not a mere overflow departure of gas from the pipe into the air. It is a discharge of gas under pressure. This distinction adopts the terminology which Upjohn J. used in Smeaton v Ilford Corporation [1] . Gas does not simply escape. The count says that, pursuant to the statute, the defendant used its pipes to carry gas. When gas escaped it was therefore discharged by the Gas Co. through a leaking pipe. The company thus created a nuisance, quite apart from liability predicated on Rylands v Fletcher .

It is not necessary I think to distinguish in this case between a mere permissive statutory authority to supply gas and a statutory mandate to do so. But, as the distinction was alluded to in argument, I say again that what is important is what the law prescribes, not the words by which it is described; and that, so far as it is important, the effect of the legislation as a whole is, I think, that the company is obliged to supply gas to anyone who requires it at any place within the areas it serves.

Section 79 of the 1837 Act, which by s. 5 of the 1858 Act is to be read as if it were repeated in that Act, is as follows:

1. 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 [sic in Government Printer's copy, semble "from"] 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.

In 1837, when this was enacted, the company's business was, as its name indicates, providing gas light - that is supplying gas for lighting purposes. The section was expressed in terms of liability for nuisance created in doing that. Today the main business of the company is supplying gas for heating and cooking purposes. Streets are no longer lit by gas; nor are many houses. In times past s. 79 would have made the company liable to proceedings for a nuisance, caused by an escape of gas, resulting from the method the company used to supply gas for lighting. It would be strange if because electric light has largely supplanted gas light the company has ceased to be liable, under s. 79, for an escape of gas from its pipes. I do not think that it has.

Section 79 speaks of "proceeding against the said company in respect of any works of the said company as a public or private nuisance" and "for any injury sustained by reason of any such works ". It was suggested that "works" here has a restricted meaning. In s. 54 the word refers only to such things as trenches dug in roads for laying pipes. But it seems to me that the phrase "any works of the said company" in s. 79 casts back to s. 48. That section empowers the company to "make erect sink lay place and fix such retorts gasometers receivers buildings cisterns engines machines cuts drains sewers watercourses pipes reservoirs and other works and devices as the said company shall think necessary or proper for the purpose of carrying the purposes of this Act into execution". A leaking gas pipe in the street is thus a "work of the company" which can be "a public or private nuisance" within the meaning of s. 79.

In 1896 the Supreme Court of the United States, in the case of Camfield v United States [1] , used words equally applicable in Australia.

1. (1896) 167 U.S. 518, at pp. 522, 523 [42 Law. Ed. 260, at p. 261].

Ever since Aldred's Case [2] , it has been the settled law, both of this country and of England, that a man has no right to maintain a structure upon his own land, which, by reason of disgusting smells, loud or unusual noises, thick smoke, noxious vapors, the jarring of machinery or the unwarrantable collection of flies, renders the occupancy of adjoining property dangerous, intolerable or even uncomfortable to its tenants. No person maintaining such a nuisance can shelter himself behind the sanctity of private property. And, I add, s. 79 prevents the Gas Co. sheltering behind its statute. 1. (1610) 9 Coke 57b [ 77 E.R. 816].

That section is an early example of statutory provisions which it has become customary to call "nuisance clauses". Its terms can be traced back to 1817, to the Act for better lighting the Streets and Houses of the Metropolis [London] with Gas, 57 Geo. III, c. 23, s. 55; and thence to the Lighting and Watching Act, 1833, which was succeeded in England by the Gasworks Clauses Act, 1847, s. 29, and the Gasworks Clauses Act, 1871, s. 9. A gas company, operating under statutory powers, was thereby prevented from setting up its statute in answer to actions for nuisance arising from its making and supplying gas: Jordeson v Sutton, Southcoates and Drypool Gas Co [3] ; and see Attorney-General v Gaslight and Coke Co [4] . The principle behind nuisance clauses was expressed by Lindley L.J. in Shelfer v City of London Electric Lighting Co [5] : "Part of the price paid for the right to exercise the statutory powers is that those who exercise them shall not create a nuisance."

1. [1899] 2 Ch. 217, at pp. 236, 237, 257. 2. (1877) 7 Ch.D. 217. 3. [1895] 1 Ch. 287, at p. 313.

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.

1. [1905] 2 K.B. 597. 2. [1939] N.Z.L.R. 741. 3. (1933) 50 C.L.R. 108. 4. [1932] N.I. 178.

Although I would like to avoid cluttering this judgment with further references to cases on this aspect, I think I should mention again Dunne v North Western Gas Board [5] which was pressed on us for the defendant. There the plaintiff alleged negligence against the defendant gas board: that issue was fought out: the trial judge held there was no negligence. No question of the onus of that issue arose. The gas boards were not liable under Rylands v Fletcher , because all that they did was what their statute required them to do; and it was proved that it was done without negligence. A nuisance clause there did not alter this. It read, "Nothing in this Act shall exonerate an area board from any indictment, action, or other proceeding for any nuisance caused by them". The trial judge had held that "the sole and effective cause" of the escape of gas was the bursting of a water pipe with which the gas board had nothing to do; and that, the Court of Appeal said [1] , "would itself exonerate the gas board from liability". The gas board had not caused the nuisance. Therefore the particular nuisance clause had no application. There are some passages in the judgment of the Court of Appeal which are perhaps capable of being misunderstood and misapplied. But when the case is read in the light of its facts, I do not think that the defendant in the present case can gain anything from it. Moreover it is not a decision binding upon us; and nothing in it deters me from coming to the conclusion I have.

1. [1964] 2 Q.B. 806. 2. [1964] 2 Q.B., at p. 833.

The remaining question is whether the plaintiff can under the second count recover damages for personal injuries. The question arises only incidentally on the demurrer. It was introduced into the argument because the allegation of damage in the first count, incorporated by reference in the second count, is that escaped gas

entered the premises of the plaintiff whereby the plaintiff was overcome by the said gas and has sustained injury as a result thereof and has been and will be disabled and incapacitated and has suffered and will suffer great pain of body and mind and has been and will be prevented from pursuing her education and from becoming employed and has lost and will lose moneys which she could and would otherwise have received therefrom and has incurred and will incur expense for treatment and other attendances for her injuries and has been and will be otherwise greatly damnified.

I do not think that the general question, posed as whether damages for personal injuries can be recovered in a case based on Rylands v Fletcher , admits of a simple answer. That is because two quite different situations in which the question can arise are not always kept distinct.

The first is when a plaintiff is the occupier of land, and he complains of the noxious thing which has come upon his land. Is he entitled to recover for personal injuries he has suffered from its presence there? The second is when a plaintiff complains, not as the occupier of land, but simply because he has suffered personal injury by the escape of a noxious thing from the defendant's land. At the back of the second situation is a basic question. Is the cause of action in Rylands v Fletcher so akin to trespass to land or to private nuisance, even if it be not properly called a form of nuisance, that only an occupier of land can sue under it, and that he must sue in that capacity? If that be so, the present plaintiff is, for the purposes of the demurrer, a competent plaintiff because she is described as the occupier of premises adjacent to the highway where she was affected by gas. We must on the demurrer accept that description of her and take it to have been used in a strict sense, as postulating some interest in land, more than that the plaintiff was there as a mere gratuitous licensee.

A plaintiff who sues as an occupier of land, basing his case upon Rylands v Fletcher [1] , is in my opinion entitled to recover damages for all harm which he has suffered which he could recover in an action for nuisance or trespass to land. In nuisance his claim would not be only for an injurious affection of his land diminishing the value of his interest in it. It would extend to harm done him by the disturbance of the healthy and peaceful enjoyment by him of his right there. I see no reason why those damages should not extend to any personal harm the nuisance has there caused him. A person who has a personal right of action because of some particular damage he has suffered by reason of a public nuisance, for example if he be hurt by the obstruction of a highway, has long been regarded as being entitled to recover for medical expenses, loss of earnings and so forth: see the precedent and cases referred to in Bullen & Leake, Precedents of Pleadings, 3rd ed. (1868), pp. 379-381. In the same way in an action for a private nuisance to a plaintiff's land, by for example polluting the air, damages have always been regarded as recoverable for such resulting harm as poisoning the plaintiff's animals: Bullen & Leake, Precedents of Pleadings, 3rd ed. (1868), pp. 382-383. If a land occupier who sues in nuisance can recover because his animals were made sick I cannot see why if he sues relying on Rylands v Fletcher he cannot recover because he has himself been made sick. The learned author of the latest edition of Salmond on Torts - 15th ed. (1969), pp. 409, 410 - puts the position as I see it. I quote one passage:

As Lord Macmillan himself said of Rylands v Fletcher, "its congeners are trespass and nuisance", and neither in nuisance nor in cattle-trespass can a non-occupier recover for personal injuries. But just as in each of these cases of strict liability the law permits an occupier to recover for his personal injuries, so it permits him to do so if he brings suit under that form of strict liability known as the rule in Rylands v Fletcher. The distinction turns on the character of the claimant and not on the character of his injuries. Blackburn J. himself allowed an occupier to recover for damage to his chattels under the rule in Rylands v Fletcher, although he was equally clear that a non-occupier had no such claim. Both on principle and on authority the same conclusion follows in the case of personal injuries. On principle, for it would be absurd to suppose that the law allowed (as it does) an occupier who had been trampled upon by straying cattle to recover without proof of negligence, but not one who had been submerged under thousands of gallons of escaping water or oil. I would add, or poisoned by escaping gas. 1. (1868) L.R. 3 H.L. 330.

In the present case the plaintiff sues as having been an occupier of land. She is, I consider, entitled to recover damages for personal injuries, being harm done her in her capacity as occupier, except for any consequences which are too remote. The decision in Hale v Jennings Bros [1] , accords with this view. The plaintiff there was upon ground of which she was a tenant when she was hit by the escaped object hurtling through the air. Some commentators have seen that case as an authority for a larger proposition, that damages for personal injuries can be recovered by a plaintiff in an action under Rylands v Fletcher whether or not he sues in the capacity of occupier.

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.

It has recently been established by the Privy Council that fore-seeability of harm is an element of liability in nuisance as it is in negligence: Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd [1] . In a Rylands v Fletcher case that requirement is, I consider, satisfied if, in the particular circumstances, the defendant ought reasonably to have been aware that the thing he had accumulated on his land was likely to do harm if it should escape. In the present case that is met by the averment in the count that the gas was a thing likely to do harm if it escaped, as the defendant well knew.

There is one very important consequence in this case if the plaintiff was on the land merely as a licensee and had no better right to be called an occupier. That is because a right of action for a nuisance, strictly so-called, depends, and in 1837 and 1858 it certainly depended, upon the plaintiff having an interest in land and being harmed in respect of that. If the plaintiff in this case was not a person who would have had a right of action in nuisance she cannot have the benefit of s. 79, the nuisance clause. She could still rely, as I have said, on Rylands v Fletcher : but the Gas Co. would then be entitled to rely upon statutory authority, and to be freed of strict liability if it could shew that it acted under statutory powers and with due care. For reasons which I have given, I think that it would have to plead this defence specially, in confession and avoidance. It could not be raised under the general issue. The pleas filed in this case are irrelevant to the issue on the demurrer. They ought not to have been included in the demurrer book. They were put before us in the appeal book apparently by error and only so that we should ignore them. However, I cannot forbear from saying that, unless there be some statute or rule of which I am not aware, there is no authority for a plea of the general issue by statute in this case. The defendant, Benning, is not, I take it, entitled to the benefit of s. 6 of the General Legal Procedure Act, 1902 NSW.

The arguments in this case covered a large field; and I have found it necessary to consider them at length. I therefore summarize the conclusions I have reached and tried to explain in what I have written above. My conclusions are:

(a) The count in the declaration sets forth facts shewing a cause of action.

The statutes of 1837 and 1858 do not of themselves provide an answer to this because

(i) if the plaintiff was in strict sense of law an occupier having an interest in the land described as her premises, then her right of action is preserved and assured to her by s. 79 of the Act of 1837;

(ii) if she was not such an occupier, but was lawfully upon the land, then the statutes cited are no answer to her claim unless the Gas Co. exercised the powers given by them with due care, the onus of showing that being upon the company.

(b) If the plaintiff establishes the facts she alleges and no defence is alleged and proved she will be entitled to damages for her personal injuries not too remote - either on the ground that such damages measure harm done her in her capacity as an occupier of land; or, if she was not such an occupier, are compensation for direct harm done her by a tortious act.

(c) The count should be adjudged good in substance and the demurrer overruled. The appeal should therefore be dismissed.

The respondent to this appeal (the plaintiff) brought an action against the appellant (the defendant) in the Supreme Court of New South Wales. In the second count of her declaration she sued

the defendant as aforesaid for that at the time of the committing of the grievances hereinafter mentioned and at all material times the Australian Gas Light Co. was enabled by statute to supply and distribute a dangerous thing, namely gas a substance liable to cause mischief if it escaped as the defendant well knew and to lay pipes under and along public streets to contain and carry such gas and pursuant to such power the said Australian Gas Light Co. did lay pipes under certain public streets and did use the same to contain and carry gas as aforesaid, and the plaintiff was the occupier of certain premises adjacent to a certain public street wherein certain pipes as aforesaid and for the purpose aforesaid had been laid and thereupon gas escaped from a pipe so laid and used as aforesaid and entered the said premises of the plaintiff whereby the plaintiff suffered the damage more particularly set forth in the first count hereof.

To this count the defendant demurred and the Court of Appeal, by a majority (Wallace P. and Jacobs J.A., Walsh J.A. dissenting), gave judgment in demurrer for the plaintiff [1] .

In order to discover how it comes about that it should be sought to make the defendant Benning responsible for the matters of which the plaintiff complains, it is necessary to turn back to the first count of the declaration. A reference to that count discloses that the defendant Benning is the secretary of the Australian Gas Light Co. (the company) and as such the count avers that he is liable by statute to be sued as nominal defendant on its behalf.

As the second count stands it seems to me to be defective. To allege merely that the company was enabled by statute to supply and distribute gas and for that purpose to lay pipes under public streets; that it carried out that work "pursuant to" its statutory powers; and that gas escaped whereby the plaintiff was injured does not, in my opinion, disclose a cause of action. The averment that the company acted "in pursuance" of a statute seems to me to be an allegation that in accordance with the powers conferred upon it by statute it laid and maintained its pipes and used them to carry gas, that is to say that it exercised all due skill in carrying out its operations. Without knowing more, the case would, it seems to me, fall within the well-known and oft repeated principle stated by Lord Blackburn in Geddis v Proprietors of Bann Reservoir [2] :

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.

We were referred to a great number of cases, some decided in England and in Northern Ireland, and others decided in this Court, but before considering them, or at least some of them because it would be almost impossible to refer to them all, I think it is necessary to consider the statutory provisions under which the company operates and these are to be found in a series of public Acts ranging from the Australian Gas Light Company Act of 1837 to the Gas and Electricity Act, 1935-1965. I say that it is necessary to do this because it seems to me that it is to these provisions that one must turn, in an endeavour to discover whether, leaving aside claims in nuisance for the reasons I have stated earlier, the legislative intention was that the company should be liable only if an escape of gas from its pipes was shown to have resulted from a failure by it to exercise due care or whether it was sufficient for an injured party to show merely that an escape of gas had occurred, the onus then being on the company to establish that this had occurred notwithstanding the fact that it had exercised its powers with all due care.

The effect of these statutory provisions is to empower - and I think to require - the company, for the benefit of the inhabitants of the city of Sydney, to provide gas for the lighting of streets, houses and the like, to lay mains and pipes to carry the gas and of necessity to keep the gas under pressure in order to provide gas lighting for streets and premises. Although the company is one which, subject to certain statutory limitations, is run for private profit it was, I think, rightly described by this Court in Benning v Sydney City Council [1] , as "a public utility" for the supply of gas to the inhabitants of Sydney. Some of the provisions of the statutes plainly contemplate that gas might from time to time escape from the company's mains and pipes (see, for example, ss. 61 and 62 of the Act of 1837) and there is in the Act of 1837 a section (s. 79) which when originally enacted followed a number of provisions dealing with escapes of gas and providing in effect that if in such cases the escapes should not be promptly remedied by the company it should be liable to various pains and penalties. Section 79 provided 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 from 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. 1. (1958) 100 C.L.R., at p. 187; 4 L.G.R.A., at p. 20.

In view of the insistence of the parties that the second count is not to be treated as a claim in nuisance it is, I think, unnecessary to consider the first part of the section which deals with proceedings for nuisance. But in any event the section does not purport to create rights of action and the authorities in this Court to which I will presently refer lead me to the conclusion to which Walsh J. came in the Supreme Court, that the plaintiff's only right of action is in negligence. If that is so the first part of the section affords the plaintiff no assistance in the present case.

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:

One important question yet to be determined is whether the Tramway Co. in leaving the post and wire uninsulated above ground where passers-by might come in contact with the post, neglected to take the necessary precautions stipulated for in the Order in Council as a condition of the permissive authority given. If they did not they were guilty of negligence, and in the absence of any countervailing circumstances are liable. That is a matter of fact, and must be determined by the appropriate tribunal. 1. (1916) 21 C.L.R. 181. 2. (1916) 21 C.L.R., at p. 202.

I do not think it has ever been doubted, at least since Metropolitan Asylum District v Hill [2] , that where a body purporting to act under statutory authority is sued for committing what is prima facie a nuisance, it is for it to show that its statutory authority could not be carried out without creating that nuisance and the judgments of the Chief Justice and of Barton J. in Fullarton's Case [3] seem to me to do no more than follow that line of authority. The next case is Metropolitan Gas Co v Melbourne Corporation [4] . There the company under statutory authority had laid down a gas main in a public street. Later the city corporation, also acting under statutory powers, constructed an underground drain which intersected the line of the gas main. The drain subsided and the gas main was thereby fractured. The company opened the street and repaired the main and the corporation reinstated the roadway. The corporation then sought to recover the cost of reinstatement from the company while the company counter-claimed from the corporation the cost of repairing the gas main. The opening of the street by the company in order to repair the main had been carried out by it pursuant to a permit issued by the corporation, a condition of which was that the work of reinstating the roadway should be done by the corporation but paid for by the company. The trial judge gave judgment for the corporation on its claim against the company and dismissed the company's counterclaim. The counterclaim had alleged that in constructing the drain the corporation had (a) committed a nuisance; (b) committed a trespass; and (c) been guilty of negligence. An appeal was brought against the dismissal of the counterclaim and for the appellant, the company, it was submitted that the burden lay upon the corporation to excuse itself and that it had not done so. Isaacs A.C.J. said [1] :

Technically stated, the company charges (1) nuisance, (2) trespass, (3) negligence. The first two-mentioned grounds of action have been asserted for a purpose, namely, to fix the onus of justification on the Corporation. His Honour proceeded to give reasons for holding that neither the first nor the second causes of action could be sustained. In dealing with the claim in negligence he said [2] : It, therefore, is necessary for the appellant's success that the company must, in order to establish actionable negligence, show: (1) some reasonable precaution omitted which would have prevented the injury to the pipe; (2) the likelihood of injury being occasioned unless that precaution were taken; (3) that the omission of that precaution occasioned the injury. and ended his judgment by saying [3] : On the whole, therefore, I am not satisfied that the negligence is proved. Gavan Duffy and Starke JJ. said [4] : And though it was said in argument that the company's claim was founded upon either trespass or nuisance or negligence, still the liability of the corporation must depend upon whether, in the exercise of its statutory powers, it has acted negligently, so as to do unnecessary damage to the company. The corporation had authority to construct its barrel drain and silt chamber, and its liability, if any, must be founded upon an excess of that authority. 1. (1881) 6 App. Cas. 193. 2. (1916) 21 C.L.R. 181. 3. (1924) 35 C.L.R. 186. 4. (1924) 35 C.L.R., at p. 191. 5. (1924) 35 C.L.R., at p. 194. 6. (1924) 35 C.L.R., at p. 196. 7. (1924) 35 C.L.R., at p. 197.

In Cox Bros (Aust) Ltd v Commissioner of Waterworks [1] , the facts were that the defendant had, under statutory authority, laid water mains in the streets of Adelaide. One of the mains burst and this was reported to the defendant shortly afterwards. Some time elapsed before its officers cut off the water but in the meantime the plaintiff's premises were flooded. It thereupon sued the defendant for damages basing its claim in nuisance and negligence and the trial judge found in the defendant's favour on both charges. On appeal to this Court, counsel for the plaintiff submitted (inter alia) that the onus lay upon the defendant to establish the absence of negligence. Rich J. said [2] :

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.

In Metropolitan Water, Sewerage and Drainage Board v O K Elliott Ltd [4] , the plaintiff alleged that its property had been damaged by water which had escaped from a burst water main under the control of the defendant Board and brought an action in the Supreme Court claiming damages for negligence. The Act under which the Board operated contained a provision for compensation to be assessed by the Land and Valuation Court for damage done by the Board in the exercise of its powers and the question arose whether the provision for statutory compensation prevented the plaintiff from maintaining an action at law for damages based upon the alleged negligent maintenance of the water main by the Board. Starke J. said [5] :

It has long been settled that if public authorities or persons do acts which they are authorized by statute to do, and do them in a proper manner, then, though the acts so done work special injury to a particular individual, the individual injured cannot maintain an action at law. He is without remedy unless compensation is provided by the Act, and his only remedy is that given by the statute, namely, compensation (East Fremantle Corporation v Annois [6] ). The compensation is for losses sustained in consequence of what the authorities or persons may lawfully do under the powers conferred upon them (Caledonian Railway Co v Colt [7] ). But it is equally well settled that if the injury or loss is caused by an act which, notwithstanding the statute containing or incorporating a compensation clause, is not made lawful, the remedy by action is not taken away and is open to the person injured. Statutory powers must be exercised "with reasonable regard to the rights of other people", and if an act is done in excess of the statutory power, or carelessly or negligently, then the person injured can put in force the ordinary legal remedy by action in the Courts of law (Caledonian Railway Co v Colt [1] ; Mersey Docks Trustees v Gibbs [2] ; Brine v Great Western Railway Co [3] ; Clothier v Webster [4] ; Coe v Wise [5] ; Roberts v Charing Cross, Euston and Hampstead Railway Co [6] ; Howard-Flanders v Maldon Corporation [7] ). Dixon J. (as he then was) said [8] : But it does not follow that the Board incurs an absolute statutory liability to make compensation to the occupiers of premises adjoining streets for damage sustained by their goods or premises by reason of outbursts of water from the Board's water mains in the roadway.

Upon the similar, but not identical, provisions of the English Act, no such absolute liability has been imposed, but persons complaining of such injury have been put to an action of negligence to recover damages (Snook v Grand Junction Waterworks Co [9] ; Green v Chelsea Waterworks Co [10] ; Markland v Manchester Corporation [11] ; Cox Bros (Aust) Ltd v Commissioner of Waterworks [12] ). Fletcher Moulton L.J., in Swansea Corporation v Harpur [13] , describes these as "cases which relate to damage done to a road without negligence, but in consequence of the presence of the pipes there, as, for instance, the case of Green v Chelsea Waterworks Co [14] , where a pipe burst and did damage to a private individual. The courts have established that in such cases where there is no negligence the water company is not liable. It has obtained from the legislature those privileges, and if it properly exercises its rights it is not liable for damages unless it has been guilty of some neglect or default".

1. (1886) 2 T.L.R. 308. 2. (1894) 70 L.T. 547. 3. [1934] 1 K.B. 566. 4. (1933) 50 C.L.R. 108. 5. [1912] 3 K.B. 493, at pp. 503, 504. 6. (1894) 70 L.T. 547. McTiernan J., with whom Evatt J. agreed, said [15] : The Act contains no provision imposing liability upon the appellant to pay compensation for damage inflicted in exercising its power to send water through the mains. The question, whether the appellant is liable to pay damage, in respect of the respondent's alleged grievances, must, therefore, be determined in an action founded on alleged negligence or some other alleged tortious act, as distinct from an action to enforce a liability to pay statutory compensation for an act done in exercise of the appellant's statutory authority (Snook v The Grand Junction Waterworks Co [1] ; Green v Chelsea Waterworks Co [2] ; Charing Cross Electricity Supply Co v Hydraulic Power Co [3] per Lord Sumner; Burniston v Corporation of Bangor [4] ; Cox Bros (Aust) Ltd v Commissioner of Waterworks [5] ).
   1. (1934) 52 C.L.R. 134.
   2. (1934) 52 C.L.R., at pp. 143, 144.
   3. [1902] A.C. 213.
   4. (1860) 3 L.T. 252.
   5. (1860) 3 L.T. 252.
   6. (1866) L.R. 1 H.L., at p. 112.
   7. (1862) 2 B. & S. 402 [121 E.R. 1123].
   8. (1862) 12 C.B. (N.S.) 790 [142 E.R. 1353]; 31 L.J.C.P. 316.
   9. (1866) L.R. 1 Q.B. 711.
   10. (1903) 87 L.T. 732.
   11. (1926) 135 L.T. 6.
   12. (1934) 52 C.L.R., at pp. 149, 150.
   13. (1886) 2 T.L.R. 308.
   14. (1894) 70 L.T. 547.
   15. [1934] 1 K.B. 566.
   16. (1933) 50 C.L.R. 108.
   17. [1912] 3 K.B. 493, at pp. 503, 504.
   18. (1894) 70 L.T. 547.
   19. (1934) 52 C.L.R., at p. 154.
   20. (1886) 2 T.L.R. 308.
   21. (1894) 70 L.T. 547; 10 T.L.R. 175, 259.
   22. [1914] 3 K.B. 772, at p. 781.
   23. [1932] N.I. 178.
   24. (1933) 50 C.L.R. 108.

Railways Commissioner (SA) v Riggs [6] , was a case in which sparks which escaped from a railway engine caused a fire on the plaintiff's property and the latter brought an action based upon negligence. Before referring to a number of passages in the judgments in that case, it seems desirable to make some general observations on the "railway sparks cases" of which there have been so many. It has long been recognized that in the course of running railway engines it is impossible to avoid some discharge of sparks and accordingly proof of the fact that sparks have escaped and caused damage does not itself afford prima facie evidence of negligence. But if the submissions put forward on behalf of the plaintiff in the present case are sound I cannot understand why, in this type of case, if evidence is given of the escape of a dangerous substance, namely sparks from an engine, and of damages caused thereby, it would not be for the defendant to prove that he had not been guilty of negligence. Yet it has never been doubted that it is for the plaintiff to show a failure on the part of the defendant to exercise due care.

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.

The last case in this Court to which I will refer is Thompson v Bankstown Municipal Council [1] . In that case the plaintiff was injured when he came into contact with an earth-wire charged with electricity from the high tension wires of an electric power system operated by the defendant Council. In their joint judgment [2] , Dixon C.J. and Williams J. expressed some doubt whether the statutory powers with which the defendant was armed contained sufficient express authority to enable it to carry high tension wires on poles along a highway. They thought, however, that such an authority might perhaps be implied by the statute. Accordingly they said that they would proceed

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.

I have read the many cases to which references are made in the passages I have set out above. If I may say so with respect, I think they plainly support the propositions for which they were cited in the judgments and I see no point in quoting from them.

There are two cases, however, which are not included in those citations and upon which counsel for the plaintiff in the present case placed reliance. The first is Manchester Corporation v Farnworth [7] . There the defendant corporation had been authorized by statute to erect and use a station for generating electricity on certain land. Poisonous fumes were emitted from the chimneys of the station and caused damage to the plaintiff's land. The plaintiff's claim was in nuisance and the defendant set up (inter alia) - and I quote from the judgment of Viscount Dunedin [8] ,

that the generating station is a thing specially authorized by Act of Parliament, that the emission of deleterious fumes is a necessity of the situation, and that consequently, they are not liable for any nuisance created thereby. 1. [1930] A.C. 171. 2. [1930] A.C., at p. 179.

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] -

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.

In these circumstances I can find no good reason for departing from the general principles which have been stated and applied by this Court in the cases to which I have earlier referred and, applying them, I am of opinion that the second count of the declaration is demurrable. It is unnecessary therefore to decide a further submission made on behalf of the defendant that damages for personal injuries cannot be recovered in a case to which the rule in Rylands v Fletcher [1] applies.