Buckle v Bayswater Road Board [1936] HCA 65;

Buckle v Bayswater Road Board [1936] HCA 65; - HCA 1936 case summary — Zoe

[45]

The road where the accident took place lies in the district of the Bayswater Road Board which is the defendant in the action and the respondent in the appeal. It is called Garratt Road. Until recently it was a blind street ending on the north or right bank of the Swan River to which it ran from the Old Guildford Road, a distance of six or seven hundred yards. The fall of the land is towards the river, but it is gradual and the road runs through places that are low-lying and boggy. There are some springs in adjoining land. The locality is not populous and the dwellings straggle out and practically cease before half the distance to the river is traversed. Where the last house but one stands on the north side an unmade road, called Frinton Street, runs off at right angles. It contains no houses and bears no regular traffic. Garratt Road is a chain road but only a width of about twelve feet in the centre had been constructed by the road board. On each side of the road, about fourteen feet from the constructed surface, open drains were cut leading to the river. The purpose, according to the secretary of the road board, was to keep water from the foundations of the constructed road. About seven or eight years ago parts of the open drain on the north-east side were converted into an agricultural drain composed of porous earthenware pipes, nine inches in diameter, laid with spaces between them. The agricultural drain passed the mouth of Frinton Street. In 1931 it was found that it had been broken at that point and the road board substituted at the crossing some cement piping with glazed earthenware pipes at the ends nine inches in diameter. They were covered with soil, perhaps twelve inches deep. Garratt Road remained in this condition until 1934 when, under the authority given to him by sec. 94 of the Public Works Act 1902-1933 W.A., the Minister of Works erected a bridge across the Swan River at the end of Garratt Road. The work was done by the Commissioner of Main Roads, who, when so desired by the Minister, constructs works (sec. 19 (a) of the Main Roads Act 1930-1932). The erection of the bridge made Garratt Road a main artery of traffic and the work to be done by the commissioner included the construction in that street of a roadway with a bituminous surface eighteen feet wide. The work was completed in April 1935, except that the embanked approach to the bridge, about 250 feet in length, was left unsurfaced so that it might completely settle. While the Commissioner of Main Roads was making the centre of Garratt Road, the traffic was turned on to the unmade north-eastern side and necessarily passed over the agricultural drain. The traffic consisted of, or at any rate included, the commissioner's trucks carrying as much as four tons of sand, rubble or stone. In consequence the greater number of the pipes was broken. At Frinton Street the commissioner's truck smashed in the top of the glazed earthenware pipe. It lay next to the cement pipes in a position about eight feet further on than the produced fence alignment of the western side of that street. The pipe was two feet long. By 6th October 1935, when the plaintiff put his foot in the hole and fell, there was a cavity there of almost that length and about eight inches wide and eight or more inches deep. It was more or less hidden by grass which grew luxuriantly at the sides of the bitumen way. The bottom of the pipe was unbroken, but it contained roots of grass and debris.

[55]

But while a road authority owes to the members of the public using a highway no duty to undertake active measures whether of maintenance, repair, construction or lighting in order to safeguard them from its condition, on the other hand it possesses no immunity from liability for civil wrong. It is, of course, a civil wrong to cause particular damage by obstructing a highway, or by making it unsafe or dangerous. Interferences with a highway which in themselves would be unlawful in a stranger are as a rule authorized acts when done by a road authority. But a road authority in doing them must take due care for the safety of those using the highway and is not protected if it creates dangers which reasonable care and skill could avoid. Because the road is under its control, it necessarily has an opportunity denied to others for causing obstructions and dangers in highways. But when it does so, the road authority is liable, not, I think, under any special measure of duty which belongs to it, but upon ordinary principles. These principles include the rule that to render the highway unsafe is to commit a nuisance, and that to execute authorized works without due care and skill for the safety of others leaves an action to anyone who suffers a consequential injury. It is evident that even if what otherwise might be an obstruction or danger is created on the highway, it may be made relatively harmless by the use of some additional precaution, such as guarding or lighting. If the precaution is discontinued, consequences may ensue which up to that time had been intercepted. For these consequences the road authority will be liable in damages. But it will be liable not on the ground that it failed to exercise its powers so as to prevent them, but on the ground that it was the active agent in causing an unnecessary danger in the highway. This is well illustrated by observations made in the course of the judgments in Sheppard v. Glossop Corporation[40]. Immediately after saying, in the passage I have already quoted, that to discontinue lighting was no breach of duty, Scrutton L.J. said: "That is, of course, subject to this; that if they place an obstruction in the highway they must by lighting or warning, or by watchmen or fences or other reasonable means, guard against the danger they have themselves created"[41]. Bankes L.J. said: "I think it will be found that wherever a plaintiff has succeeded in establishing a liability it has been not for merely omitting to light a part of the district but for making it dangerous unless it is sufficiently lighted, and then leaving it unlighted"[42].

[65]

So far I have dealt with the liability of a road authority only, that is, an authority exercising powers for the construction, maintenance, repair and control of highways. A marked distinction exists between the position of such an authority in relation to the defective condition of a road, street, bridge, footpath, or other place over which there is a public right of passage and the position of a water, sewerage, gas and other like authority in relation to the defective condition of any parts of its undertaking, which, under statutory authority, it maintains in a highway so as to form part of roadway or pathway used by the public. The liability of such a body depends, of course, ultimately on the effect of the statute under which it acts. But if its powers of interference with the roadway extend to maintenance and repair of the object it has placed there, then, as a rule, it will be liable for the consequences if that object is negligently allowed to fall into disrepair. The reason for this liability in the case of such a body may be found in its ownership or control of the structure in the highway, or in the implications discoverable in the statute. In Frencham v. Melbourne and Metropolitan Board of Works[51], where a sewerage authority was held liable for failure to repair a sewer covering in a street, Cussen J. said: - "I think the cases decided as to municipal corporations" (i.e., road authorities), "which from time to time alter or are empowered to alter the highway, have no application. There, when they have finished their work on the highway, it is still the highway, and that is the highway a member of the public is entitled to use. The position is entirely different when for its own purposes another body not the general road authority is permitted to construct a structure, and to have portion of that structure representing for the time being the surface of the road.". The distinction rests on the difference in the nature of functions and does not depend on the separate identity of the bodies that perform them. Water supply and other services are often conducted by the same corporation as constitutes the road authority. When that is so, the body incurs or may incur a civil responsibility for the condition of so much of the road surface as it provides as water authority which it does not incur for the general surface provided by it as road authority. The decided cases steadily maintain the distinction, but a failure to bear it sufficiently in mind in applying them can lead to much confusion. For instance, White v. Hindley Local Board[52], which was relied upon by the plaintiff, contrasted the position of the local board as surveyor of highways with its position as sewer authority. In its capacity as owner of the sewers, it was held liable for an accident caused by a horse thrusting its foot through a grid two bars of which had been left broken for over six months. The grid or grating was one of a series placed at intervals along the road for the purpose of conveying surface water off the paved portion of the road into a sewer running under it. The court conceded that, as highway authority, the local board would not be liable for non-repair of the grid, but decided that as the board had two capacities and as one of the purposes of the grid was to keep the hole over the sewer from being dangerous, it was under an obligation as proprietor of the sewers to keep the grids in due order. In the same way, in Blackmore v. Vestry of Mile End Old Town[53], the liability of the vestry for the slippery and dangerous condition of a worn iron flap to a water box was placed exclusively upon the ground that they had put it in the highway as water authority. "The defendants did not lay this iron plate in their capacity as surveyors of the highway, but in that other capacity of theirs which gave them power to water the streets, and it is in that capacity that they are liable in this action" (per Brett L.J.[54]).

[69]

The actual decision in the much explained Borough of Bathurst v. Macpherson[60] seems now to have found a sound justification under the same head. The municipality, which was also the highway authority, made on a public road an open brick drain five feet in width and reaching a depth of four feet where it ran into a covered barrel drain. The bricks of the drain broke away and the rain tore away the soil and left a hole into which the plaintiff's horse fell. It is apparent that the drain served some other purpose than merely taking the surface water of the road. Indeed the first ground relied upon in the judgment of the Board delivered by Sir Barnes Peacock is that the case resembles White v. Hindley Local Board[61]. Referring to that case, his Lordship says: "Without saying that the defendants" (the local board) "would be liable as surveyors of highways, the court held that as the sewers were vested in them, they were liable at all events in their capacity of owners of the sewers"[62]. He then proceeds: "In the present case the barrel drain, even if the property of it did not belong to the appellants, was not only made by the appellants, but the sole control and management of it were by the statute vested in them; and in their Lordships' view these circumstances threw upon them a duty of a similar kind to that which was held to exist in the case cited."In Skilton v. Epsom and Ewell Urban District Council[63], Borough of Bathurst v. Macpherson[64] is dealt with as deciding the liability of a body performing functions besides those of road authority. Slesser L.J. says of it: "There one authority had a duty under one specific Act, namely, the local Act of the Dominion from which the appeal was brought, to construct a street and maintain it, and also they were responsible for the drains, gutters or sewers"[65]. Romer L.J. said: "There the municipality of Bathurst were held liable for something that they had done on the highway which was properly done at the time it was done, but by reason of neglect on their part had got into such a state that it occasioned a nuisance to the highway. They were held liable although they happened also to be the highway authority"[66].

[73]

In Unger v. Shire of Eltham[81] a road authority was held liable for damage sustained through a hole in a broken culvert over a drain across a country road. There was no negligence in the original construction, but the jury found negligence in allowing the culvert to become rotten and unfit for traffic, and in allowing the hole to remain in the culvert without repair and without giving notice to persons using the road. The ground upon which the court held the defendant shire liable was that it had made a drain across the highway which, unless covered, would be a nuisance and a duty was thus imposed upon it to maintain the covering. The question was decided upon a special case which contained no statement of the nature or purpose of the drain, but it may be suspected that its sole purpose was to carry off surface water from the inner guttering of a hillside road, and that it formed an ordinary incident in the construction of a mountain road. If this were so, the decision was, in my opinion, incorrect. On the other hand, if the defendant had made the drain, not as road authority but for some other purpose, as, for instance, a drainage scheme foreign to road construction, the decision might be supported. It is a mistake to suppose that simply because a thing such as a covered drain or gutter is of such a nature that it will, when it falls into disrepair or dilapidation, cause a dangerous condition of the highway, it is incumbent on the road authority which put it there to take active measures to prevent or remove that condition. If the drain or gutter forms part of the road construction and is put there to serve a purpose arising out of its character as a highway, as for example to carry off the surface water, or to drain off seepage and protect the road base, the road authority incurs no civil responsibility by allowing it to fall into a condition of danger, unless in the first instance it acted improperly in placing it there. If the road authority showed a want of care or skill or took an unreasonable??? in the adoption of such an expedient or in the design or execution of the work, neither lapse of time nor the use in the interval of some additional precaution which while it was practised had prevented any ill consequences ensuing would relieve the road authority of civil responsibility for damage ultimately caused by the work. But, given due care and skill and proper regard for the public safety in the first instance, the road authority does not lose its immunity from liability for damage arising from its failure to uphold, maintain and repair because the work that it has done for highway purposes may, or even probably will, under the influence of wear and tear and the stresses of use, give rise to a defective or dangerous condition. To speak of the resulting state of the road as a nuisance in the highway may be correct enough. There is, of course, always a risk in applying the word to the physical thing instead of to the act or omission constituting the wrong of nuisance. But, apart from that, the question is not whether a nuisance has been caused. A highway authority might be indictable for a nuisance arising from its failure to repair. But it was not liable for the particular damage which an individual suffered from the indictable nuisance. When the highway authority acts in that capacity the question is whether, by the negligent exercise of its statutory powers or otherwise without statutory justification, it has been the active agency in causing the nuisance. It is for this reason that I expressed the view that it was of little importance in the present case whether the road at the time of the accident should be considered as still under construction or as under repair by the Minister. For, on the one hand, if the drain had been put in Garratt Road, not for road purposes, but for some foreign purpose, as, for example, if it had been a sewer, it would remain under the control and responsibility of the authority which put it there whether road board or some other authority and would not be part of the subject matter which the Minister might construct or repair under sec. 86 (1) of the Public Works Act 1902-1933 W.A. considered alone. On the other hand, if the drain formed part of the road construction undertaken for road purposes, the road board's liability depends upon the propriety of its original act, and the subsequent failure to repair amounts only to a step in causation. To whichever authority the care of the road belonged for the time being, the result would be the same. The causation would be complete.

[90]

This immunity is limited to the respondent's failure to perform its statutory duties. It does not cover any act or omission in breach of a common law duty. In the much discussed case of Borough of Bathurst v. Macpherson[86] the Judicial Committee did not consider it necessary to determine whether the Act under which the borough carried out its functions did upon its true construction impose a civil liability on the borough for mere neglect to maintain the roads which were placed under its care and management. In that case the borough had lawfully in the exercise of its statutory powers and with due care and skill constructed in the road a brick drain which becoming defective caused a hole to open in the road. The drain was in their control and they had full power to repair it or to deal with it so as to eliminate the danger which it caused to exist on the road. The conclusion which their Lordships reached was that in these circumstances "the duty was cast upon them of keeping the artificial work which they had created in such a state as to prevent its causing a danger to passengers on the highway which, but for such artificial construction, would not have existed, or, at the least, of protecting the public against the danger, when it arose, either by filling up the hole or fencing it"[87]. By the relationship which the statute had created between the borough and the drain a duty was cast on the borough to prevent that artificial work which they had constructed from becoming a source of danger to users of the road. This was quite a different duty from the borough's duty to repair the road along which the drain was constructed. In illustrating this duty their Lordships gave an instance which exhibits no substantial difference from the facts in the present case: "Supposing the top of the barrel drain across Hope Street had fallen in, leaving a dangerous hole in the middle of that street, it would surely have been the duty of the appellants to take steps to prevent persons falling into the trench which they had originally dug; and there would seem to be no substantial difference in the liability between a hole which had been directly made by them, and one which is the indirect but natural consequence of the artificial work they had created and had not properly kept"[88]. For the purpose of explaining the ratio decidendi of the judgment, the Judicial Committee in Bourke's Case[89] made the following statement of the material facts in the earlier case: - "It appears that the borough of Bathurst had constructed a barrel drain under or in proximity to the highway. For what purpose and under what authority this had been done is not stated, and is not material; the construction of the drain was no doubt lawful. The drain having fallen into disrepair, a portion of the highway subsided into it, leaving a hole into which the plaintiff's horse fell as he was riding along the roadway, with the result that he sustained personal injuries." After reviewing the grounds of the decision their Lordships continued: - "The ratio decidendi was that the defendants had caused a nuisance in the highway. It was entirely independent of the questions whether there was an obligation to keep the highway in repair, and whether any person injured by the breach of such a duty could maintain an action. The case was not treated as one of mere non-feasance, and indeed it was not so. The defendants had created a nuisance. Having made the drain, and failed to keep it in such a condition that the road would not fall into it, they were just as much liable as if they had made the excavation without constructing the drain, and the road had consequently subsided and become founderous. If any person other than the defendants had lawfully made the drain, and the same result had ensued, such person would undoubtedly have been liable to an action just as much as if he had dug a hole in or placed an obstruction on the highway, and his liability would have been the same whether the municipality were or were not bound to repair the highway. The owner of land adjoining a highway has been held liable to an action if he digs a hole so close to the highway as to create a nuisance to passengers lawfully passing along it. Why should the municipality be less liable than any other person, in respect of the same acts, merely because the road is vested in them and certain powers or duties in relation to its repair are committed to them? A study of other parts of the judgment in Borough of Bathurst v. Macpherson3(1879) 4 App. Cas. 256. renders it clear that the decision did not in any way depend on the question whether the defendants were liable to an action in respect of the non-repair of the highway, which is the only question in the present case"[91]. It is true that some of the dicta were disapproved but no doubt is left that the ratio decidendi of the case is sound.

[91]

The drain which the respondent introduced into the road did in situ become a source of danger and the appellant was injured by it. Like the appellant in the above-named case, the respondent had the care, management and control of the road in which the drain was laid and it had the power to remove the broken drain and either to replace it or to fill up the trench along which it had conducted the drain. If the drain is an artificial work and not part of the road, it follows that the accident was not occasioned by mere non-feasance and the case is governed by the ratio decidendi of the Bathurst Case[92]. If on the other hand the drain is part of the road the default on the part of the respondent to repair it so as to render the road safe for the public is a non-feasance for which the respondent is not liable in damages although the non-feasance occasioned the injury suffered by the appellant (Municipal Council of Sydney v. Bourke[93]). The term "artificial work" is not defined in either the Bathurst Case[94] or Bourke's Case[95]. In applying it to an open brick drain constructed near the highway the Judicial Committee had no regard to the purpose which it served or the authority which built it. "For what purpose and under what authority this had been done is not stated, and is not material" (Bourke's Case[96]). The criterion for determining whether anything placed in the road is an artificial work must be the nature of the thing itself. It seems clear that the term should not be applied to a road or a section or a layer of road or its foundation made of artificial materials or of both artificial and natural materials (Cf. Moul v. Thomas Tilling Ltd. and Croydon Corporation[97]). The expression, as I understand it, denotes a structure which is appurtenant or subservient to a road but not a component part of the road fabric. The earthenware pipe ran underneath the surface of the road but was not a part of the road or of its foundations and in my opinion had the character of an artificial work.

At a glance

Court

Decision date

Before

Source

Judgment (117 paragraphs)

Buckle v Bayswater Road Board [1936] HCA 65; (1936) 57 CLR 259 (15 December 1936)

Parties

Legislation Cited (3)

Cases Cited (1)