Birch and Birch v Australian Mutual Provident Society [1906] HCA 51

Birch and Birch v Australian Mutual Provident Society [1906] HCA 51 - HCA 1906 case summary — Zoe

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was an absolute duty upon the defendants to keep the box in Paovinext proper repair, apart altogether from the question of negligence. - The extent to which it would have been necessary to interfere with the surface of the street for the purpose of effecting repairs was so slight as to be negligible. This box and the pipe with which it was connected were put down by the defendants under sees. 67-70. Sec. 68 gives power to break up the soil for that purpose. The pipe and box remained the property of the defend- ants, and might have been removed by them under sees. 71 and 72, notwithstanding that the soil would have to be broken for that purpose. The latter section gives the owner of the pipe power to open or break the soil for "any such purpose us aforesaid." " Aforesaid" must mean any purpose previously referred to in the Act. That would include repair, not only the purposes mentioned in secs. 67-71. A statutory power may be exercised from time to time as occasion may require: Interpretation Act, No. 4o0f 1897. See. 116 provides that nothing in the Metropolitan Water and Sewerage Act 1880 shall be construed so as to exempt a person from any liability for nuisance. The defendants there- fore have control of this pipe, have all necessary power to keep it in repair, and must be responsible for its condition. [He referred also to the amending Acts, 53 Vict. No. 16, sec. 16, and 57 Vict. No. 12, sees. 7, 8, and 9.] Even if there is not a direct liability under the Act, there is under the by-laws. These are made under sec. 34, sub-see. 10, which empowers the Board to make by-laws, inter alia, for compelling persons using water supplied by the Board to keep their pipes and appliances in repair. By-law No. 37 provides that any persons using water supplied by the Board shall keep all their pipes and other appli- ances in a proper state of repair. The by-law is intra vires. It is well within the scope indicated by the power in sec. 34, sub- sec. 10, and is not unreasonable. The Court will not be critical on the question of reasonableness when the legislature has

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brought against the defendants to recover damages for injuries sustained by the plaintiff's property by the bursting of a water main belonging to the defendants, which had been lawfully laid down. The contention for the plaintiff was that the defendants, having brought this dangerous thing, the water main, on to the the highway, were liable for anything which happened through its being there, relying upon the case of Rylands v. Fletcher (1). The Court of Appeal, consisting of Lindley L.J., Kay L.J., and A. L. Smith LJ., held that that doctrine was inapplicable to a company doing what they were authorized to do by Act of Par- liament. The rule applies a fortiori to the case of persons doing what they are compelled to do by Act of Parliament. It seems to me to follow that, putting it at its highest, the liability of the defendants cannot be any greater than the liability of the road authority would be. They have interfered, it is true, with the highway, but they have only done what they were required by the Jaw to do. The rule as to the liability of highway authorities in such cases is clearly stated in the case of Municipality of Pictou v. Geldert (2). In the judgment of the Judicial Committee this passage occurs (3): - * The law was laid down by this Board in the case of Sunitary Commissioners of Gibraltar v. Oxfilu (4), thus: 'In the case of mere non-feasance no claim for reparation will lie except at the instance of a person who can shew that the Statute or ordinance under which they act imposed upon the Com- missioners a duty toward himself which. they negligently failed to perform. The question then is, whether any Statute has given to private persons the right of action now claimed against this municipality which does not exist at common law." That was a claim against a municipality for injuries sustained by the plaintiff owing to the road becoming dangerous. The same principle was applied in the case of Municipul Councii of Sydney v. Bourke (5). In that case Lord Herschell L:C., deliver- ing the opinion of the Judicial Committee, said (6): - « There is no doubt, in a certain sense, a duty incumbent on the Council to see to the maintenance of the highways. It is for them to exercise

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The learned Judges of the Supreme Court attached considerable weight to that argument, but they came to the conclusion that the by-law which purports to require the owners of stopcocks to repair them was wltru vires. They thought, and rightly, that by-law No. 14 which provides that the owner must at his own expense lay down and maintain all the pipes and apparatus upon his premises, and upon any street, lane, or land lying between his premises and the Board's mains, was ultra vires, so far as it pur- ported to confer authority on owners of premises to interfere with the street for the purpose of repairing such a stopcock or the appli- ances connected with it. I agree with them that unless the power to do so was conferred upon the Board by express terms they could not ea mero motu make a by-law which rendered such action lawful. But I cannot bring myself to doubt that under the Statute a person who lays down a pipe of this kind connecting a main pipe with his premises has an implied right under the Statute to do all that is necessary to repair it, on the same principle that a person who takes a water pipe through private land not only has the right, but is bound, to keep it in order. But the mere facul- tative power to do this does not create an obligation, any more than it imposes a liability for damages upon a municipality, which has undoubtedly the power to repair the roads in ordinary cases. So that I do not think the by-law is ultra vires on the ground that it authorizes something which would otherwise be unlawful. But I think it is quite irrelevant. The Statute authorizes the Board to make by-laws and to impose penalties for breach of them. The Board has made a by-law requiring owners of houses to keep their pipes in order and imposing a penalty for not doing so. Ido not think it was the intention of the legislature to authorize the Board by by-law to create a new obligation, or to alter the common law obligations of a person who has done what the law requires. Even if there had been such a provision in the Act itself, merely imposing a penalty for default, a question would have arisen as to the application of the doctrine laid down by Lord Cairns in the case of Atkinson v. Newcastle and Gateshead Water- works Co. (1), and I should certainly be disposed to think that this by-law was intended, having regard to the powers conferred

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which gives authority to the Board, by sec. 45, to break up streets, lay down pipes, conduits, service pipes, &e., and from time to time to repair, alter or remove the same. They have not only the authority to create these things, but to repair and alter as well as to remove them. The person who constructs a service pipe with a stopcock in it is dealt with by sec. 67 which provides {His Honor read sec. 67 and continued.] There is a statutory obliga- tion. See. 71 gives authority to a person who has laid down such a pipe or become proprietor of the premises to remove the pipe and, of course, the stopcock. Up to that point the purposes for which the defendants, having regard to their act in laying down the pipes, might require to take up the pavement, are the con- struction of the thing, which was obligatory, and the removal of it, which was permitted. I will now refer to sec. 72, which gives authority to break up the pavement between the house and the Board's pipe "for any such purpose as aforesaid." On closer examination I am unable to collect from the preceding sections referred to by "aforesaid," any purposes having reference to the defendants here except the purposes of laying down the pipe and stopcock and removing them. I find no authority therefore in the Act, nor any obligation, for the person who has constructed this thing under the pavement or in the pavement, to repair or alter it. It has been argued that there is an implied authority and obligation to repair, but I cannot find any trace of either. The complaint here is not of the doing of the thing, but of not doing something else afterwards, and the whole question of liability depends on whether by the express provisions of the Statute or by necessary inference there is any obligation laid upon the defendants to prevent a thing constructed by them from getting into such a condition as may cause injury to others using the footpath. Now, as the obligation to repair and the authority to repair this structure or thing are alike wanting under the Statute, it must be that the obligation contended for is based upon some common law reason; but I _ cannot find any common law reason why for mere nonfeasance - the present defendants should be made liable, any more than if

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compelled to do so by Statute, then you must find his obligations and liabilities in regard to the property so placed there in the Statute which gives him that authority. The statutory authority prevents the mere placing of private property in the highway from becoming thereby a nuisance ; the person authorized must, however, use the statutory authority with reasonable care. If he does not he is liable. But having once exercised the authority with reasonable care, his subsequent obligations depend entirely upon the Statute. Therefore in all these eases, in order to find out the obligations owing to the public by a person who under statutory authority places his own property in the highway one must look at the provisions of the Statute. There are some cases in which the Statute imposes no obligation. There are others in which, by the very terms in which the Statute gives the authority to so use the highway, the obligation is clearly indicated. The latter position is illustrated by the case of Midwood & Co. Ltd. v. Manchester Corporation (1), a case upon which Mr. Arm- strong relied as showing that, if this stopcock box became a nuisance by being out of repair, the defendants who put it there and whose property it was could not escape liability. In that case power was given to place the obstruction in the highway, with certain obligations attached to the exercise of the power. And it was expressly provided in clause 70 of the order that nothing in it should exempt the undertakers from any proceeding for nuisance in the event of any nuisance being caused by them. That is to say, that, if in the maintenance of the work, which they were authorized to place in the highway, any nuisance was caused, they would be liable, just as they would have been at common law if they had had no authority to interfere with the highway. That was what Collins M.R., described as a qualified permission, He said (2) : - " Permission is given to the defendants to do the things provided for by the order, but if, in doing them, they occasion a nuisance, they must bear the consequences. They are not given a curte blanche to create a nuisance. If and so far as they can do the thing authorized without occasioning a nuisance to any one, they may lawfully do them; but, if and so far as they cause a nuisance by doing them, they are not only

At a glance

Court

Decision date

Before

Source

Judgment (105 paragraphs)

H.C. or A. 1906.

H.C. or A. 1906.