Burrum Shire v Richardson [1939] HCA 30

[38]

McLaughlin, for the respondents. The control and management of the foreshore was assumed by and was in fact exercised by the council. The foreshore includes everything that is a fixture on it. The control of the foreshore means control of those fixtures. The example of the shooting gallery is not analogous. It is a chattel, and the proprietor is in control. The control and management assumed by the council is equivalent to occupation. A better example is that of a shelter shed erected by a charitable body in a public park.. The control and management of the shed is in the council although constructed by third persons. The council never divested itself of any control or management of the enclosure. The Progress Association never attempted to gain any control or manage- ment over the enclosure. There is no evidence that any voluntary body ever acquired any right to control the enclosure. The fact that those bodies expended money does not make them liable. If in the case Glasgow Corporation v. Taylor (3) the poisonous shrub had been planted by the Progress Association at its own expense, the local authority would still have been liable. It is consistent that the control should be in the council, even though the structure has been erected by public bodies at their own expense. The bathing enclosure was merely a fence to protect bathers from sharks. It was a three-sided fence open to the land side. The council's responsibility is no different from the case of a fence erected around a public park by a voluntary association. The council is liable for its failure to keep in order the structure under its control (Borough of Bathurst v. Macpherson (4) ). Giving and refusing assent to the erection of the structure is an exercise of control (R. v. Croydon and Norwood Tramways Co. (5) ). The relief workers were employed and con- trolled by the council. The relief workers were paid from the funds of the council granted to it by the Crown for expenditure on works on lands under the control of the council. The true test is the

[41]

control of the structure. The council had the control of the relief workers, who were their servants (Donovan v. Laing Wharton & Down Construction Syndicate (1); Dewar v. Tasker & Sons Ltd. (2) ; Moore v. Palmer (3); Jones v. Scullard (4) ). The structure was - on land of which the council had control, and the jury was entitled to draw the inference that the enclosure was under the control and management of the council. The jury was dissatisfied with the evidence that the enclosure was not under the control of the council. - The voluntary bodies were either the paid or unpaid agents of the council. The council acquiesced in and took the benefit of the work of the public bodies. The authority of the public bodies came from the council. As regards the relationship of the boys to the council, the ordinary categories of invitor and licensee do not apply as they were there of right (Glasgow Corporation v. Taylor (5); Pettiet v. Sydney Municipal Council (6) ). Secs. 69 and 70 of the Local Authorities Acts put the council in the position of an owner. The council cannot divest itself of ownership, and is therefore in control. The boundary of the council area is the seashore. The sea coast is the land at the edge of water at high and low tide (R. v. Forty- Nine Casks of Brandy (7) ). Ifthe council had control and manage- ment of the enclosure, the relationship of the boys and the council was at least that of licensees. The general condition of the structure and the electrical equipment can be a concealed danger. The electric- light wires were uninsulated, and likely to become energized. It was not obvious to the boys that the wires were electric-light wires. The wires were known to the council to be electric-light wires. The wires had been sagging for some time, and were likely to become dangerous. The council ought to have known of the danger. If circumstances were such that a person is likely to know of a danger, it may be presumed that he did know of the danger. The council was aware of the nature of the structure of the electric-light installa- tion. If the relationship is as high as that of invitor and invitee, it is the duty of the council to make the premises reasonably safe

[51]

enclosure on the beach at Pialba within the municipal district of the defendant council. The enclosure consisted of a fence, open on the land side, to which wire netting for protection against sharks was attached. The enclosure was electrically lit. The boys, who were fifteen and sixteen years of age respectively, were bathing at about 8 a.m. with two companions. They were using the diving - board. The diving board was near and under the electric wires, which had sagged to within five or six feet of the board. The - sagging was due to the fact that a post, which had been insufficiently embedded in the sand and inadequately strutted, had leaned over. - The wires were bare, and the neutral wire, which should have been dead, was in fact, owing to a defect in the installation, charged with electricity. The boys in some unexplained manner came into contact with the wire and were killed. There was no defence of contributory negligence. The case was tried before Brennan J. anda jury. The jury answered a large number of questions. Some of the answers cannot be supported on the evidence. Among the findings of the jury which are important for the purposes of these appeals are the following : - It was found that the electrical equip- ment was defective in material and in construction. This finding is not challenged. The jury also found that the defendant council had the control of the bathing enclosure, that it permitted the enclosure to be constructed, and that it allowed electrical equipment to be provided upon it. The jury also found that the defendant allowed a trap or concealed danger to exist upon the bathing enclosure, that the existence of that concealed danger was known to the defendant, and that the concealed danger caused the death of each boy. Findings of the jury which either cannot be supported on the evidence, or which I regard as not material for the decision of the appeal, were to the effect that the defendant council actually constructed the bathing enclosure and caused it to be constructed, that the defendant brought electrical energy upon the bathing enclosure and provided the electrical equipment, and that the defendant failed to take reasonable care that the enclosure was safe. I discuss the appeals upon the basis of the first set of findings of the jury to which I have referred. It is necessary to determine whether there was evidence to support such findings and whether,

Burrum Shire v Richardson [1939] HCA 30 - HCA 1939 case summary — Zoe

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Judgment (140 paragraphs)