High Court of Australia|1979-04-05

Cartwright v McLaine & Long Pty Ltd [1979] HCA 16; (1979) 143 CLR 549 (5 April 1979)

CARTWRIGHT v. McLAINE & LONG PTY. LTD. [1979] HCA 16; (1979) 143 CLR 549

Gibbs A.C.J.(1), Stephen(2), Jacobs(3), Murphy(4) and Aickin(5) JJ.

GIBBS A.C.J. On 30th May 1968, at about 9 p.m., the appellant was walking slipped and fell. He had failed to see that the footpath was covered with oil - it was that which had caused him to slip. As a result of his fall he sustained personal injuries and in March 1973 - about five years later - he began proceedings in the District Court to recover damages from the respondents. Judgment was given for the respondents and an appeal by the appellant to the Court of Appeal was unsuccessful. He now appeals to us by special leave. (at p551)

2. The oil had flowed on to the footpath from land which I shall for convenience describe as No. 287 Darlinghurst Road. On the portion of that land which adjoined Darlinghurst Road there was a service station, but it had been unused for at least a year and was in May 1968 derelict. On the rear portion of the land, behind a retaining wall, and facing another street, was a terrace of houses which were in process of demolition. The only evidence as to the source of the oil and the nature of its flow was given by a police officer, Inspector Bourke, who went to the scene on the night of the accident. He found that the footpath was covered by an oil slick about 20 ft long and extending over the whole width of the footpath. He described the oil as motor oil, and said that it made the footpath very slippery. The oil was flowing from under a pile of rubbish which stood near the retaining wall. The land sloped down in the direction of the road, and the oil flowed on to the footpath, where it spread out to form the slick, and then into the gutter. The pile of rubbish from which it flowed was about 21/2 to 3 ft high and covered an area of about 3 ft by 6 ft. It included pieces of corrugated iron, brickbats and piping and was interlocked so that Inspector Bourke could not move it. For that reason he could not see what was underneath it. However he said: "It was not feasible to think that the oil was coming from the container in the rubbish because it would not be big enough to hold it, so that it must have been coming from somewhere under the rubbish." By "the container" was no doubt meant "a container", for there was no evidence that there was a container in the rubbish. Inspector Bourke had frequently driven along the road on earlier occasions, but had not previously seen any sign of oil spillage. He could not recall subsequently visiting the site. (at p552)

3. The land was owned by the second respondent ("Property Syndicates") which had acquired it during 1967. On 23rd April 1968 Property Syndicates had entered into a contract to sell the land to the first respondent ("McLaine & Long"), but the contract had not been completed by 30th May 1968, and on that date McLaine & Long was not entitled under the contract to possession of the land, and had not in fact taken possession. Nevertheless an agent acting for McLaine & Long had, without the authority of Property Syndicates, arranged for a wrecking company to demolish the buildings on the land, and the work of demolition had begun on 16th May and continued on other days during that month but had not concluded by 30th May. There was evidence, which the learned trial judge apparently believed, that the demolition work had been done on the terrace houses but not on the service station, and that no material from the demolition either fell or was placed on to the site of the garage. The learned trial judge said that he was unable to accept that the pile of rubbish had been placed on the land as a result of the activities of the workmen employed by the wrecking company. This finding was not challenged, and the wrecking company, which was a defendant in the action, was not made a respondent to this appeal. (at p552)

4. The land was visited from time to time during the early part of 1968 by Mr. Long, a director of McLaine & Long, and also by Mr. Farquharson, a director of Property Syndicates. It was then obvious that the garage was derelict and that there was rubble on the land. Mr. Long said that there was "some old rubble and stuff" at the back of the garage, in a position which seems to correspond with that in which Inspector Bourke saw the pile of rubbish. I am prepared to assume that the appellant is correct in submitting that Mr. Long in fact saw the pile of rubbish described by the inspector. There is no evidence that Mr. Farquharson saw the pile, but the condition of the land must have been obvious to anyone walking over it. (at p553)

5. The contention on behalf of the appellant was that the appellant was injured by reason of a nuisance which arose out of the condition of premises adjoining the public highway. It was submitted that the proper inference to be drawn from the facts is that the oil must have been contained in an underground receptacle which had been covered by the pile of rubbish, and that the rubbish in some way (e.g., by collapsing, or by its sheer weight) either ruptured the top of the receptacle or displaced the oil under it, causing it to flow out on to the roadway. Alternatively, it was suggested that the receptacle was in, rather than under, the pile. Another possibility, of course, is that on the night in question a trespasser dumped a large quantity of motor oil on the vacant land - that the oil was poured by the trespasser into the pile of rubbish whence it flowed on to the footpath. Notwithstanding the unsatisfactory nature of the evidence, and with considerable hesitation, I am prepared to assume, in favour of the appellant, that it could reasonably be inferred, rather than merely conjectured, that the oil had not been recently brought on to the land by a trespasser, but had been placed there when the land was in use as a service station and had remained there during the years 1967 and 1968 until the pile of rubbish caused it to flow out over the footpath. (at p553)

6. The presence of slippery oil on the footpath constituted a public nuisance. However neither respondent caused the nuisance - neither of the respondents brought either the oil or the pile of rubbish on to the land or authorized either of those things to be done. In those circumstances the respondents could only be made liable if they were occupiers of the land. An occupier of land upon which a nuisance has been created by another will not be liable unless he has continued the nuisance, and he continues a nuisance "if with knowledge or presumed knowledge of its existence he fails to take any reasonable means to bring it to an end though with ample time to do so" (Sedleigh-Denfield v. O'Callaghan [1940] UKHL 2; (1940) AC 880, at pp 894, 904-905, 913, 919 ; Torette House Pty. Ltd. v. Berkman [1940] HCA 1; (1940) 62 CLR 637, at p 657 ). Those authorities were both cases of private nuisance but exactly the same principle is applicable in the case of public nuisance. (at p554)

7. McLaine & Long was not an occupier of the land on 30th May 1968. That company was not then entitled to possession and had not in fact taken possession of the land. Although it had, by its agent, engaged a wrecking contractor to demolish buildings on the land, the activities of the wrecking contractor had been confined to that part of the land on which the terrace houses stood. If it be right to say that McLaine & Long had sufficient control of that portion of the land on which the wrecking operations were being carried out to constitute it an occupier of that portion of the land, it does not follow that McLaine & Long had assumed actual, although unauthorized, control of the whole of the land. For that reason alone it appears that McLaine & Long was not an occupier and could not be made liable for the nuisance. However I do not need to rest my judgment on that conclusion. Property Syndicates was of course both the owner and an occupier of the land at the relevant date. (at p554)

8. In my opinion it should not be held that either respondent had knowledge or means of knowledge of the existence of the nuisance on 30th May 1968. Clearly, on the assumption that I have made as to the source of the oil, both respondents had means of knowledge, if not actual knowledge, of the existence of the pile of rubbish, but neither had actual knowledge of the existence of a receptacle of oil. The question then is whether an occupier of the land, if exercising due diligence, ought to have known of the existence of a potential nuisance. The obvious presence of the pile of rubbish was not in itself sufficient to provide means of knowledge that there existed a potential danger to users of the highway. A heap of rubbish may constitute an actual or potential nuisance in various ways - it may be likely to collapse on to a passer-by; it may harbour vermin; it may contain filth. None of these considerations was relevant in the present case. The potential nuisance lay in the possibility that the pile of rubbish would in some way cause oil to flow from a container in or under it. However there is no evidence that such a possibility could reasonably have been foreseen or that a reasonable inspection of the premises would have revealed the existence of any such container. It seems to me impossible to decide on the evidence whether the receptacle which I assume to have existed was in the pile or under it. The quantity of the oil which emerged suggests that the receptacle must have been under the rubbish, since it is unlikely that a pile of the size in question would have held a receptacle large enough to provide as much oil as had flowed and continued to flow from it when Inspector Bourke saw it. On the other hand, it is difficult to imagine what would have caused the oil to flow in such quantity from an underground receptacle. Any conclusion one way or another would in my opinion be no more than conjectural. If the receptacle was underground, it might well have been necessary to move the entire pile of rubbish in order to discover it. It seems to me that the duty of an occupier to take reasonable steps to prevent the continuance of a nuisance created by someone else does not require him to remove every heap of rubble on ground where demolition is taking place, on the off chance that it may hide a potential nuisance when there has been nothing to suggest that it does so. The fact that the land had formerly been used as a service station was not enough to give the occupier presumed knowledge that the pile of rubbish might cover a receptacle filled with motor oil. There was nothing about the nature of the pile of rubbish, or its history, that would have indicated to a reasonable man that it was likely to cause any public nuisance. For all these reasons in my opinion it was not proved that either respondent knew, or should have known, that there existed on the land a nuisance or potential nuisance - that is, that there was a reservoir of oil in or under the pile of rubbish which, in certain circumstances, might overflow on to the footpath causing danger to persons passing along it. (at p555)

9. It follows that neither respondent can be held liable unless the case can be brought within an exception to the general rule that an occupier is not liable for a nuisance which he did not create unless he continued it with knowledge or means of knowledge of its existence. Such an exception was recognized in Wringe v. Cohen (1940) 1 KB 229, at p 233 , where the English Court of Appeal said:

"In our judgment if, owing to want of repair, premises on a highway become dangerous and, therefore, a nuisance, and a passer-by or an adjoining owner suffers damage by their collapse, the occupier, or the owner if he has undertaken the duty of repair, is answerable whether he knew or ought to have known of the danger or not . . . On the other hand, if the nuisance is created, not by want of repair, but, for example, by the act of a trespasser, or by a secret and unobservable operation of nature, such as a subsidence under or near the foundations of the premises, neither an occupier nor an owner responsible for repair is answerable, unless with knowledge or means of knowledge he allows the danger to continue."

The reasoning on which this decision was based has been strongly criticized by some academic writers, and the rule which it states has been said to be inconsistent with the general principles of the law of nuisance as laid down in Sedleigh-Denfield v. O'Callaghan [1940] UKHL 2; (1940) AC 880 . However the case has been followed in Heap v. Ind Coope and Allsopp Ltd. (1940) 2 KB 476 and Mint v. Good (1951) 1 KB 517 and it was mentioned without apparent disapproval by Dixon J. in Torette House Pty. Ltd. v. Berkman (1940) 62 CLR, at p 657 . I may assume, without deciding, that the decision should be followed in Australia. The principle for which it is authority applies only when danger has been caused by a want of repair, and is not applicable when the nuisance was caused by the act of a third party. This was made clear by the concluding passage of the judgment of the Court in Wringe v. Cohen where it was said (1940) 1 KB, at pp 248-249 :

"If premises become dangerous as the result of something done by an occupier and they cause damage, the occupier is liable although he did not know of the danger and was not negligent in not knowing. That principle is in harmony with the principle laid down in Tarry v. Ashton (1876) 1 QBD 314 , that if premises become dangerous as a result of failure to repair and cause damage the occupier is liable, although he did not know of the danger and was not negligent in not knowing. Positive acts and neglect of duty are thus placed on the same footing. On the other hand, if premises become dangerous, not by the occupier's act or neglect of duty, but as the result of the act of a third party, or of a latent defect, the occupier is not liable without proof of knowledge or means of knowledge and failure to abate it."

In Cushing v. Walker & Son (1941) 2 All ER 693, at p 699 Hallett J. said that if the gravamen of the complaint is the causing of the nuisance, in particular by a breach of a duty to repair, it is irrelevant whether the defendant knew, or ought to have known, that the nuisance had in fact been caused, but that the position is different where the gravamen of the complaint is the continuance of a nuisance caused by another. In Spicer v. Smee (1946) 1 All ER 489, at p 494 Atkinson J. (who delivered the judgment of the Court of Appeal in Wringe v. Cohen (1940) 1 KB 229 ) said: "That case only dealt with nuisance arising from want of repair." Assuming that the rule in Wringe v. Cohen is accepted, it should be confined to cases where the nuisance has been caused by the defendant's failure to repair premises for whose repair he was responsible. (at p556)

10. The present is not such a case. Of course the buildings of the old service station were in a state of considerable disrepair, but that had nothing to do with the escape of the oil. There is no evidence that the receptacle in which it is assumed that the oil was contained was in disrepair. It is said that the nuisance was caused by the effect of the pile of rubble on the receptacle. However, the pile of rubble was not put on the land by either respondent. On the hypothesis advanced by the appellant, the nuisance was due to the act of some third party, whether a trespasser or a previous occupier, in placing the pile of rubble in its position. In those circumstances the case is not within the special rule created by Wringe v. Cohen (1940) 1 KB 229 and the respondents were only liable if they continued the nuisance, that is, if they knew or ought to have known of its existence and neglected to remedy it. As I have already held, they did not know of the existence of the potential nuisance, and should not have become aware of it by the exercise of ordinary and reasonable care. It was not suggested that either of them adopted the nuisance, that is, made use of it. They were not liable for the damage suffered by the unfortunate appellant. (at p557)

STEPHEN J. In May 1968 the plaintiff, then sixty-five years old, fell and fractured his hip while walking one evening along Darlinghurst Road, Sydney. His feet had slipped suddenly from under him as he was walking along the pavement past the site of a derelict service station and he had fallen heavily. On being assisted to his feet he found much of his clothing stained by an oily liquid which he then noticed was covering the pavement, making it extremely slippery. He reported the condition of the pavement at a nearby police station, was taken to hospital by the police and spent the next four months in bed in a nursing home. It was only in November 1968 that he was able to resume his work as a watchman. (at p557)

2. It was not until 1973 that the plaintiff began proceedings for damages in the District Court, the trial taking place in April 1976, some eight years after the accident. This long delay, a dramatic change in the physical character of the locality soon after the accident and the absence of any sufficient investigation into the accident soon after its happening all played their part in denying to the primary judge any adequate evidence of relevant circumstances. (at p557)

3. The only investigation which was undertaken consisted of a cursory inspection of the area by a police inspector on the night of the accident. Very soon afterwards much of the service station site was filled and graded as part of a plan of demolition and redevelopment which, at the time of the accident, was already being carried out on land adjoining the service station and in the same ownership. Thereafter several years passed without, so it seems, any further investigation and without any claim being made against those who were ultimately to become defendants. (at p558)

4. The police inspector's inspection, of which he gave evidence, disclosed that it was oil, flowing slowly over the footpath, on which the plaintiff had slipped and fallen. This oil which the inspector identified as "motor oil", was flowing from under a small pile of old building materials and rubbish lying some distance inside the boundary of the service station site. It covered some twenty feet of the pavement and was flowing into the adjoining gutter. The pile was some 3 ft high and covered an area of about 3 ft by 6ft. The inspector said that he had tried to move the pile aside to discover the source of the flow but its entangled nature prevented this. This flow of oil was, apparently, an isolated incident: it had not, it seemed, flowed out from the site over the pavement in the past; nor did it, presumably, long continue to flow after causing the plaintiff to lose his balance and fall, although the only direct evidence of what occurred after the accident is that sand was spread by the municipal authorities on the pavement later that evening or on the following morning. (at p558)

5. The inspector's evidence went one step further. He said that, having regard to what he took to be the considerable amount of oil which he saw running slowly from the pile across the site, over the footpath and into the gutter, it must have been coming from some source below, rather than within, the pile, which was itself of too small a size to have contained a receptacle large enough to hold that much oil. (at p558)

6. This was the substance of the evidence upon which the plaintiff sought to make good his claim against the three defendants whom he ultimately sued: a demolition contractor who had been working in the vicinity of the service station site, the registered proprietor of the site and the purchaser of the site from that registered proprietor under a contract of sale entered into before but not completed until some time after the happening of the accident. (at p558)

7. The plaintiff failed as against each of these defendants. He did not appeal against the verdict in favour of the demolition contractor. His appeal to the Full Court of the Supreme Court of New South Wales against the verdicts in favour of the two other defendants, the respondents to this present appeal, failed. It is unnecessary to examine in detail the causes of action relied upon as against each of these three defendants since the present appeal concerns a quite narrow point, whether either of the present respondents is liable in nuisance for the injury to the plaintiff. (at p559)

8. The primary judge found that none of the defendants knew of the existence of any accumulation of oil on the service station site. The site had not been in active use as a service station for some time before the registered proprietor purchased the large parcel of land of which it comprised a part, long before the purchaser from the registered proprietor appeared on the scene. The plaintiff does not challenge this finding of fact but claims to succeed against one or other of the respondents upon the ground that he was injured on the highway as a result of the non-repair of a structure adjacent to the highway the condition of which constituted a nuisance, one or other or both of the respondents being in occupation and control of that structure and having either a duty to keep it in repair or, to put it another way, being liable to him if he should be injured in consequence of its state of disrepair. (at p559)

9. It is at this point that the critical importance to the plaintiff of what I have described as the further step in the inspector's evidence becomes clear. It is upon that evidence, that the source of the oil was from somewhere below the pile of rubble, that the plaintiff's case rests. By that evidence the plaintiff seeks to establish the existence of a structure, adjoining the highway, whose state of disrepair constituted a nuisance causing injury to the plaintiff. Apart from it, there is no other evidence of any relevant structure at all, let alone of a structure in disrepair. The plaintiff contends that this evidence of the inspector gives rise to an irresistible inference that beneath the pile lay some underground container full of oil, part of the contents of which was displaced by some subsidence into it of part of the pile or of the container's lid, fractured by the weight of that pile. How otherwise, it is said, could so much oil come from so small a pile of rubble? (at p559)

10. As I have said, no other evidence was tendered at the trial as to the existence of such an underground container. By then the point at the site of the service station from whence the oil was said to have come had long since been covered over in the course of the general work of demolition, filling, grading and redevelopment of the whole parcel of land of which the site formed but a part. This work, already in progress elsewhere on the land when the accident occurred, continued undisturbed by the accident, of which the purchaser of the parcel, who was undertaking that redevelopment, was quite unaware and so remained for some years afterwards. (at p559)

11. It is, then, upon this evidence that the plaintiff constructs his contentions of law. For the latter he relies upon that line of cases of which Wringe v. Cohen (1940) 1 KB 229 is the most noteworthy and Mint v. Good (1951) 1 KB 517 the most recent. He says that here was a structure, the underground container, which was adjacent to a highway and which, for want of repair, became dangerous in the sense that it released part of the oil which it contained: it was therefore a nuisance. The plaintiff, a passer-by, was injured in consequence and the occupier is in those circumstances "answerable whether he knew or ought to have known of the danger or not" (Wringe v. Cohen (1940) 1 KB, at p 233 ). (at p560)

12. There are several features of this submission which would provide opportunity for lengthy debate: whether any case of want of repair is made out when what happens is that liquid in a tank is displaced either by solid matter falling through the lid of the tank or by the fall of fragments of the lid itself, the entire event perhaps occurring at one moment of time, without there being any pre-existing want of repair; whether the principle sought to be invoked applies when the plaintiff's injury is not directly caused by the defective structure, as by its falling upon him, but is due to the consequential escape from that structure of a substance which proves to be injurious to him; whether the near-absolute liability imposed by the principle in Wringe v. Cohen (1940) 1 KB 229 forms part of the law for Australia; whether the highly speculative fact situation here in question may not include factors which would afford a defence recognized under the Wringe v. Cohen principle, e.g. the placing of the pile over the assumed lid of the assumed tank by someone other than the defendants being the unforeseeable act of a trespasser or the fall of solid matter into the tank being "a secret and unobservable operation of nature". (at p560)

13. The primary judge did not advert directly to any of these aspects, apparently because the case was presented before him upon a somewhat different basis of liability. There is therefore little in the way of findings of fact relevant to such of these issues as may turn on matters of fact. In any event I do not think it appropriate to embark upon a consideration of any of them and this for the same reason as that which the primary judge regarded as decisive of the matter when the case was argued before him upon a rather different basis. That is, that the plaintiff failed to prove that the source of the flow of oil was any accumulation of oil in an underground tank on the service station site. Without proof of such a source there can be no question of liability of either respondent under the principle in Wringe v. Cohen, for there will be no structure to be kept in repair and no tortious breach of duty by the occupier of the land. (at p561)

14. The existence of an underground tank containing oil was wholly dependent upon the acceptance not only of the police inspector's evidence of what he saw but also of the inference which he drew. That inference depended upon two factors, an assessment of the amount of oil which spilled and of the inability of the pile of rubble to hold within it a container large enough to spill out that quantity of oil. Each involved a combination of observations of fact and estimations of quantities and capacities. The inspector saw oil on the ground, estimated its quantity (presumably on some assumption as to duration of flow) considered the dimensions of the pile of rubble and from all that material arrived at his conclusion and hence at his inference. He gave no evidence of particular expertise in these areas and was speaking from his recollection of a scene witnessed at night some eight years earlier, a recollection unrefreshed by reference back to any contemporaneous notes and concerning an accident to which he seems, at the time, to have attached little importance: he neither took any action to put a stop to the flow of oil which he saw, the spreading of the sand by the municipality not being a result of any action on his part, nor did he trouble to re-visit the scene in daylight so as to resolve the question of the source of flow of the oil, although he frequently passed by the site. (at p561)

15. There may be thought to be other difficulties involved in accepting the inspector's inference. If the volume of oil which spread over the site and pavement was more than could be contained in one or more drums lying in the pile of rubble, at least an equal volume of rubble cum lid must have subsided into the tank so as to displace that oil; if the tank were not brim full the volume of subsiding rubble would have to be the greater. However the inspector does not seem to have observed anything of note about the shape of the pile to suggest that part of it had subsided. Again a subsidence, unless gradual, might be thought to be inconsistent with a spill of oil from one side only of the pile, as depicted by the inspector's rough sketch, without any splashing of oil all around the pile; but this may be only a question of inaccuracy of observation, of recollection or of depiction on the sketch. The inference also probably involves the collapse of some lid or cover over the tank, due to the weight of the pile; one might have thought that a tank in the driveway of a service station, near the bowsers, would be strongly covered, to withstand traffic over it. (at p562)

16. I mention all these matters not for the purpose of canvassing them but rather to show that ample grounds existed for the ultimate conclusion at which the primary judge did arrive, namely that the inspector's inference as to the existence of an underground storage of oil should be rejected. His Honour expressed this conclusion somewhat obliquely since he was apparently concerning himself with the question of an accumulation of oil for the purposes of the principle in Rylands v. Fletcher (1868) LR 3 HL 330 rather than with the existence of a structure; however it is, I think, clear that that was his conclusion. Having remarked that on the evidence one thing was clear, that no representative of any defendant knew of any accumulation of oil upon the land, his Honour went on to say that " . . . the state of the evidence is such, I think, (that) to draw the inference that there had been and was an accumulating of oil amounts to speculation . . .". (I have supplied the word "that".) In its context the reference to "an accumulating of oil" does not here refer to the act of any defendant in accumulating oil; this his Honour had just negatived. It refers, rather, to the resultant state of oil having been accumulated, that is, to the existence of a large quantity of oil on the land such as would lead to the inference that it must have been contained in an underground tank. (at p562)

17. That this was his Honour's meaning is apparent from earlier portions of his judgment. Having recounted the inspector's evidence and his inference that the oil "must have been coming from somewhere under the rubbish", his Honour referred to aspects of the inspector's evidence upon which the latter's recollection was uncertain, remarked that "it is to be noted that the evidence of (the inspector) and the limited evidence of the plaintiff is the only evidence adduced as to the source of the flow of oil" and said that the oil flow occurred "for a reason the evidence does not disclose unless one may infer that a subsidence of the rubbish caused it to flow from a below ground level container previously existing on the site" (emphasis added). (at p562)

18. His Honour then recounted other relevant facts and, having done so, stated that "my difficulty, however, stems from the lack of evidence relating to the quantity of oil apparently on the site on the night in question" (emphasis added). Then after referring to the principle in Rylands v. Fletcher and to the accumulation of a dangerous substance on the land, his Honour returned again to this inference, saying: - "On behalf of the plaintiff it is submitted that the only reasonable inference is that motor oil had been accumulated in a sump apparently below ground level." His Honour then stated the plaintiff's theory as to displacement of oil by rubble, referred to "The principles to be applied in determining whether proof has been established . . .", cited authority and then proceeded immediately to the passages which I have earlier referred to, acquitting the defendants of knowledge of any accumulation and describing as "speculation" the inference that there was in fact any accumulating of oil upon the land. There then immediately follows a passage in which his Honour says "and I am therefore of the view that liability has not been established for this reason against either the second or third-named defendants" (being the present respondent). (at p563)

19. The inference here in question depended for its validity exclusively upon the acuity of observation and accuracy of recollection of the inspector, as to which the primary judge was, of course, in the best position to judge. I have endeavoured to suggest considerations which his Honour may well have had in mind in reaching the conclusion he did. Not only was that conclusion clearly open to him; it was, in my view, at least as acceptable as any view to the contrary, and this for the reasons which I have stated. (at p563)

20. If the inference be rejected there is, in my view, no factual foundation upon which any basis of liability on the part of either respondent can be established. Without the inference there is no ground for supposing any want of repair of a structure which either respondent might, as occupier, be obliged to keep in repair. (at p563)

21. It is, perhaps, as well to point out that if the inference be unacceptable it not only destroys the formal basis of the plaintiff's case: it also demonstrates upon a quite practical level the plaintiff's failure to make out a case against either respondent. If there was no underground tank then, for all the evidence tells us, the oil spillage might be the result of a trespasser having emptied the contents of a large drum of waste sump oil on the pile of rubble shortly before the plaintiff passed by, using this unfenced and abandoned garage site as a convenient waste disposal area. Or, again, a quantity of oil escaping from a smaller container hidden in the pile of rubble might suffice to give such an appearance of oil spillage as was spoken of by the inspector from his recollection of eight years past. No doubt there are other possible explanations of the spillage, of varying degrees of probability, no one of which would involve either respondent in liability. (at p563)

22. In conclusion I should make brief reference to what I understood to be a minor variant of the plaintiff's argument. Instead of adopting, as the object of which there was want of repair, the supposed underground tank there was substituted for it such remaining service station structures as still remained standing on the land at the time of the accident. If any there were, it may be conceded that they were undoubtedly in a dilapidated state. Their state of disrepair was then sought to be linked to the accident by inferring that it was debris falling from them that formed, or at least added to, the pile from under which the oil flowed and may have been the debris which, falling into the tank, displaced the oil in it. This is but a variant of the main argument in so far as it relies upon the inferred existence of an oil-filled underground tank. Were it to forsake that inference, the debris being, instead, thought of as falling upon and thus crushing some oil drums, with resultant spillage of oil, it would encounter other difficulties, the principal one being evidentiary: the evidence of the sergeant is inconsistent with any view that the pile he saw was formed by debris falling down from some standing structure on the site. (at p564)

JACOBS J. The appellant was injured when he slipped and fell on the footpath of Darlinghurst Road, Darlinghurst. His slipping was caused by what was described as an "oil slick" which covered the whole footpath in the area for a lenght of about 20 ft and made it very slippery. The substance was motor oil and it was observed to be coming from the site of a disused and dilapidated, perhaps partly demolished, service station. There was so much oil that it could be described as "flowing" from the site into the gutter of the roadway. Evidence of these facts was given by Inspector Bourke who also stated that he went on to the site of the disused service station and found that the oil was flowing out from under a heap of rubbish, including corrugated iron, brickbats and piping which measured about 6 ft by 3 ft in area and 21/2 ft to 3 ft in height. He tried to move the heap in order to find the exact source of the oil but it was too interlocked for him to move it. (at p564)

2. The appellant sued three defendants alleging negligence and nuisance. He sued a demolition contractor, Lockney Demolition Pty. Ltd., who was demolishing houses on an adjoining area which was in the same ownership. The trial judge found it not established that the pile of rubbish described by Inspector Bourke was placed on the old service station site as a result of the activities of employees of that building contractor and he found no basis for a finding of liability in that defendant. This finding has not been the subject of appeal. It was not claimed that the demolition contractor was an occupier of the site of the service station. (at p565)

3. At all relevant times the service station site (together with adjoining houses) was owned by the second respondent, by whom it had been owned for about a year at the time of the accident. At the time of purchase the service station had ceased to operate and the site was abandoned. Contracts had been exchanged on 23rd April 1968 for the sale of the whole of the land to the first respondent. This sale was completed in July 1968, some time after the appellant's injury. There was evidence from a director of the first respondent and from an employee of the selling agent, L.J. Hooker Pty. Ltd., that at the time of the contract in April 1968 there was rubble or debris or rubbish on the service station site and that the structure was partly collapsed. (at p565)

4. The demolition work on the houses was done pending completion of the contract of sale. It was arranged by the selling agent on behalf of the purchaser but apparently with no actual consent of the vendor. The circumstances were unusual and no doubt explain this unusual course; for the premises were the subject of a council demolition order and the first respondent requested the agent to arrange for the demolition. However, the demolition had not advanced as far as the service station site. There was no occupation of that site by the demolition contractor and therefore there was no basis upon which the first respondent (regarded as the employer of the services of the building contractor) could be found to be the occupier of the service station site. The fact that the selling agent had on behalf of the first respondent arranged to have the structures on the whole site demolished did not make the first respondent de facto occupier of the whole site. At the most it would have become occupier of that part of the site on which the demolition contractor was doing its work and that did not at the material time extend to the service station site. The only possible liability of the first respondent would be as an occupier of the land from which the oil flowed and, as it was not an occupier, it could not be found liable. I agree with the conclusion of Judge Muir in this respect, and the appeal to the Court of Appeal in respect of this respondent was correctly dismissed. (at p565)

5. The occupier of the service station site was the second respondent, as Judge Muir found. He also found that there was no liability in that respondent to the appellant for the injuries which he suffered. An appeal against this finding was dismissed by the Court of Appeal. (at p566)

6. Though Judge Muir stated that the allegation against the defendants was in nuisance, he appears to have concentrated his attention upon the principle enunciated in Rylands v. Fletcher (1868) LR 3 HL 330 , and to have examined the question whether there was evidence that oil, as a dangerous substance, was accumulated on the land and whether the occupier knew of the accumulation. But liability in nuisance is not primarily related to accumulation within the Rylands v. Fletcher principle. In the New South Wales Court of Appeal and to a considerable extent before us the appellant's argument has been concerned with the application of the principle enunciated in the much debated case of Wringe v. Cohen (1940) 1 KB 229 , and cases which have followed it. However, it must be borne in mind that in Wringe v. Cohen the principle was enunciated that in certain circumstances an owner or occupier may be liable for a nuisance (not actually created by him) of which he neither knew nor ought to have known, that is to say, of which he had neither actual or presumed knowledge. It is that aspect of the case which has been the subject of criticism. See Winfield in the Law Quarterly Review, vol. 56 (1940), p. 1 and Friedmann in the Modern Law Review, vol. 3 (1940), p. 305. Before one reaches the disputed ground in the Wringe v. Cohen line of authority, it must first appear that the occupier had neither actual nor presumed knowledge of the defective condition of the premises, that is to say, that the defect was one of which he neither knew nor ought to have known. See Sedleigh-Denfield v. O'Callaghan [1940] UKHL 2; (1940) AC 880, at pp 904-905 where Lord Wright said:

"Though the rule has not been laid down by this House, it has I think been rightly established in the Court of Appeal that an occupier is not prima facie responsible for a nuisance created without his knowledge and consent. If he is to be liable a further condition is necessary, namely, that he had knowledge or means of knowledge, that he knew or should have known of the nuisance in time to correct it and obviate its mischievous effects. The liability for a nuisance is not, at least in modern law, a strict or absolute liability. If the defendant by himself or those for whom he is responsible has created what constitutes a nuisance and if it causes damage, the difficulty now being considered does not arise. But he may have taken over the nuisance, ready made as it were, when he acquired the property, or the nuisance may be due to a latent defect or to the act of a trespasser, or a stranger. Then he is not liable unless he continued or adopted the nuisance, or, more accurately, did not without undue delay remedy it when he became aware of it, or with ordinary and reasonable care should have become aware of it. This rule seems to be in accordance with good sense and convenience. The responsibility which attaches to the occupier because he has possession and control of the property cannot logically be limited to the mere creation of the nuisance. It should extend to his conduct if, with knowledge, he leaves the nuisance on his land. The same is true if the nuisance was such that with ordinary care in the management of his property he should have realised the risk of its existence."

This statement of principle bears out the enunciation of principle which had been made in Barker v. Herbert (1911) 2 KB 633, at pp 636-637 , where Vaughan Williams L.J. said:

"In my judgment there can be no liability upon the part of the possessor of land in such a case, unless it is shewn either that he himself, or some person for whose action he is responsible, created that danger which constitutes a nuisance to the highway, or that he has neglected for an undue time after he became, or, if he had used reasonable care, ought to have become, aware of it, to abate or prevent the danger or nuisance."

See also per Fletcher Moulton L.J. (1911) 2 KB, at p 643 . There is nothing to the contrary of these statements in Torette House Pty. Ltd. v. Berkman [1940] HCA 1; (1940) 62 CLR 637 . The finding in that case was that there was a duty to exercise care and skill in the supervision of the condition of the premises but that there was no evidence that the duty had not in the circumstances been breached. See particularly per Starke J. (1940) 62 CLR, at p 651 and Dixon J. (1940) 62 CLR, at pp 657-658 . (at p567)

7. An occupier, it is true, is not liable for damage caused by latent defects in the condition of his property. But that is not the same as saying that he is only responsible for damage caused by defects of which he knew. Actual knowledge is not the test of whether a defect is latent or patent. A latent defect is one of which the occupier did not know and which would not have been discoverable by the exercise of reasonable care in the inspection of the premises in order to ascertain their condition. (at p567)

8. Thus there is in this respect a close relation between negligence and nuisance. The occupier is liable in respect of a public nuisance if he is negligent in the performance of his duty to inspect the condition of his premises with the result that damage is caused to a person on an adjoining highway by a public nuisance arising from the condition of his premises. See Street on Law of Torts, 6th ed. (1976), p. 179:

". . . an action in nuisance, derived from public nuisance, often lies at the instance of those injured on a highway as a result of harmful conditions on adjoining land. Because of this historical anomaly, in a large number of situations a plaintiff may now sue either in negligence or in nuisance (or, as often happens, in both) for personal injuries; and yet the law is the same whichever tort is relied on. So, in several House of Lords cases, it has been a matter of indifference whether the case was decided in negligence or in nuisance, both of which were pleaded."

Since an occupier has a duty to take reasonable steps to inspect premises and to repair or remove any defect in their condition revealed by the inspection, he is liable for damage caused by a defective condition which would have been revealed by an inspection which ought to have been made because, if he had carried out his duty, he would have known of the defective condition. It was so held by the New South Wales Court of Appeal in Kavouras v. Flanagan (Unreported; 23rd October 1972). That was, like the present case, one of personal injury to a person on a public highway as a result of the emergence on to the highway of material (in that case falling glass) from adjoining premises occupied by the defendant. (at p568)

"The general rule is that merely being in occupation of land from which a nuisance emanates is not sufficient for liability, and that liability does not attach where, without knowledge that anything is wrong, a man has failed to inspect and repair premises."

The first, but not the second, part of this sentence correctly states the law. (at p568)

10. The oil which spread across the footpath and caused the appellant's injury came from premises occupied by the second respondent. It constituted a public nuisance. The second respondent was liable in damages for personal injury to the appellant if it ought to have known that the condition of its premises was such that the public nuisance might occur if no action was taken by it. It had a duty to inspect its premises in order to ascertain that there was nothing in their condition which a reasonable inspection would reveal and which might cause a public nuisance of the kind which in fact occurred. For the appellant to succeed two questions need to be answered affirmatively. First, did the second respondent take reasonable steps to inspect the premises in order to ascertain their condition? Secondly, would such an inspection have revealed that condition of the premises which led to the flow of the oil on to the highway? The answer to the first question causes no difficulty. Though it had owned the premises for twelve months, it carried out no inspection of a kind which could reveal a defect of the kind which led to the flow of oil. The answer to the second question causes more difficulty but in my view the evidence itself sufficiently establishes that if the second respondent had inspected the premises and taken reasonable steps to ensure that the premises were not in a condition which might lead to a public nuisance the existence of the oil would have been revealed. The second respondent knew that the premises were the site of a disused service station. For at least part of that year there were heaps of rubbish on the site. There was no evidence as to when the oil was brought on to the site in such a quantity as the evidence disclosed but I find the inference irresistible that the oil was a relic of the service station operations. Its container, whether it was above or just below ground level, was covered by heavy debris which Inspector Bourke could not move when he came to the site. Whether or not all this debris was a relic of the service station it is not possible to say but I do not think that that matters. In my opinion the second respondent, when it commenced to occupy the site, was under a duty to carry out such an inspection of the premises as would as far as could reasonably be done ensure that the premises in their dilapidated condition did not contain relics of their previous use which could become a nuisance to persons on the highway. If the overlying debris was not there during the whole of their occupancy an inspection would more probably than not have revealed the presence of the oil container. If the debris was left there unexamined during the whole of their occupancy then there was a failure to ensure that the premises were in a condition which would not be the source of a public nuisance. No evidence was given of any steps taken to ensure that the premises were in a condition where such a nuisance was not likely to occur. It has been submitted that there was no evidence that the presence of the oil would have been revealed by the exercise of reasonable care in the inspection of the premises. However, I do not think that it can reasonably be assumed that the oil was in some unspecified way sealed off below the ground and only escaped because the ground surface was broken and the oil forced out by the falling of debris into an underground excavation. The quantity which flowed from the premises would belie such an assumption. (at p569)

11. Further, there is the fact that the oil flowed from the premises creating the public nuisance. Such an incident, standing unexplained, is not in ordinary experience likely to occur unless there has been a failure upon the part of an occupier to take reasonable care to inspect his premises and to keep them in a reasonable state of repair, and once that is found as a fact the plaintiff has the benefit of that finding. See per Dixon J. in Torette House Pty. Ltd. v. Berkman (1940) 62 CLR, at p 652 . He is not bound to prove the negative fact that a trespasser had not brought the oil on to the premises in circumstances where it is not reasonable to have expected the occupier to have known of that fact. In the light of this fact and of the evidence that the second respondent as occupier had wholly neglected the derelict and dilapidated premises, there was evidence of a want of care for the condition of the premises sufficient to make the second respondent responsible for damage suffered by a person on an adjoining highway as a result of a public nuisance emanating from the premises. (at p570)

12. For these reasons I would in respect of the second respondent allow the appeal to this Court and set aside the order of the New South Wales Court of Appeal. I would allow with costs the appeal to that Court and set aside the verdict and judgment in the District Court in favour of the second respondent and in lieu thereof order verdict and judgment in favour of the appellant against the second respondent in the amount of damages assessed by the District Court, namely, 6,000 pounds. In respect of the first respondent I would dismiss the appeal with costs. (at p570)

MURPHY J. The appellant, an elderly man, whilst walking at night along a footpath in a suburb near the centre of Sydney, slipped on a slick of oil, fell and was injured. The appellant sued three defendants in the District Court of New South Wales for damages in negligence and nuisance and was unsuccessful against all three. He appealed to the Supreme Court against these two respondents only, but was unsuccessful. He now appeals by special leave. (at p570)

2. The slick of oil was about 20 ft wide and flowed across the footpath from under a pile of rubbish on the adjoining property which was owned and occupied by the respondents. The property, on which there was a disused service station and terraced houses, was derelict; it was open to the public road and for some time before the accident members of the public used to enter the property and remove materials. The terraces were lived in by persons described as derelicts. (at p570)

3. It may be, as Professor Street suggests, that it is a matter of indifference whether the case is treated as one of negligence or one of nuisance (Law of Torts, 6th ed. (1976), p. 179). (at p570)

4. In my opinion, strict liability is applicable to both respondents. In many cases, the law applies a strict liability because the solution suggested by the balancing of the social values involved is that any loss should fall on the defendant without proof of negligence. This balancing is seen clearly in, e.g., Rylands v. Fletcher (1868) LR & HL 330 (strict standard where non-natural user); Rickards v. Lothian [1913] UKPCHCA 1; (1913) 16 CLR 387; (1913) AC 263 (refusal to apply strict standard to domestic water supply); and see generally Fleming, Law of Torts, 5th ed. (1977), pp. 322-323. Since the strict liability decision in Rylands v. Fletcher its scope has been restricted by a narrow meaning given to the concept of "non-natural user". For example, in Rickards v. Lothian (1913) 16 CLR, at pp 400-401; (1913) AC, at pp 279-280 , the Judicial Committee said: "It must be some special use bringing with it increased danger to others not merely the ordinary use of land or such a use as is proper for the general benefit of the community". (at p571)

5. Taken at face value, this restriction would exempt many dangerous uses such as acid plants and high voltage electricity plants from the Rylands v. Fletcher (1868) LR 3 HL 330 principle because they are for the general benefit of the community. However, even where strict liability is not applicable and the general rule of negligence applies, a high standard of care is required where dangerous substances are stored or used or dangerous operations are carried out. What is reasonable care often becomes such a high standard that it amounts virtually to strict liability. In one sense, strict liability is but another aspect of negligence, both being based on the responsibility for the creation of an abnormal risk (see Fleming, op. cit., p. 316; Prosser, Selected Topics on the Law of Torts (1954), ch. 3). (at p571)

6. The application of strict liability is often desirable because of the chances of harm arising from a defendant's activities if a high standard of care is not observed, or even if a high standard of care is observed. The storage of petroleum products falls into this class and strict liability is applicable to the escape of oil from a service station whether used or disused. (at p571)

7. When a service station becomes disused, steps should be taken to remove, fill or otherwise ensure that no danger can come from the presence of structures such as above and underground oil tanks, pipes and their contents. It is well known that such structures may fracture through earth or other movements or may degenerate resulting in leakage or seepage of their contents. If the premises are not rendered harmless from cave-ins, leakages or explosions, there is a reasonable anticipation that harm may result to others. In view of the statutory requirements in the various Australian States for submission of plans to, and approval by public authorities of such structures, there should rarely be difficulty in ascertaining their presence. (at p572)

8. In my opinion, these considerations justify the application of strict liability to both the owner and occupier. The owner is included because otherwise the occupation of disused dangerous premises could be placed in the hands of a straw man. I infer from the evidence that the oil which caused the injury was oil which had been left when the service station ceased operation. It follows that, even without proof of negligence, both respondents should be held liable for the damage caused. (at p572)

9. The respondents contended that the damage may have occurred because of the intervention of a third person dumping oil on the heap of rubbish. There is a high potential for mischief arising from the existence of unsupervised or inadequately supervised derelict premises in the midst of a city. The rational development of the common law should require that in these circumstances, strict liability be applicable to the owner and the occupier for damage resulting to others from the state of the derelict premises or the reasonably anticipated behaviour of persons living on or coming to the premises. This case is distinguishable from one where the owner or occupier cannot reasonably guard against the acts of trespassers or others (see Rickards v. Lothian (1913) 16 CLR, at pp 402-403; (1913) AC, at pp 281-282 ). In the circumstances, I would apply strict liability even if the escape were due to the act of a third party and even if this were malicious. It may seem incongruous to refer to reasonable anticipation in the context of strict liability, but it is necessary to fix some limits to the liability; the liability is strict but not unlimited. In practice it should make little difference whether strict liability is attached or whether an injured plaintiff must prove negligence to which I now turn. (at p572)

10. If strict liability is not applicable, but a lesser standard is, the owner and the occupier should still be held liable. A person in occupation of premises adjoining a public road is liable for failure to exercise reasonable care and skill in the supervision of the premises so that those on or passing along the road will not be harmed. This extends to anything falling or escaping from the premises. In Torette House Pty. Ltd. v. Berkman (1940) 62 CLR, at p 651 Starke J. said: "In my opinion the respondent and his co-owner owed a duty to their neighbours to exercise reasonable care and skill in the supervision of the pipes under their control and management, so that if water escaped they should not be damaged." That standard has not been met. Reasonable care and skill in the supervision of the tanks and pipes which obviously might exist in a disused service station was not taken. The possibility of the existence of a tank or a pipe containing oil was at the least a real one in these circumstances, yet nothing was done by either respondent to ascertain the presence or absence of such structures or even to see that, for example, heavy equipment belonging to the demolition contractor (a defendant in the original action) did not disturb such structures. I infer that the lack of reasonable care and skill in the supervision of the property led to the displacement of oil from an underground tank or pipe by seepage, displacement or fracture. (at p573)

11. The respondents also contended that the cause of the oil flow was unexplained. Even if that were so, the plaintiff should succeed. Common experience is that if sulphuric acid flows out of a used or disused sulphuric acid plant, and the cause is unknown, it is more likely than not that it is due to the negligence of those in charge of the premises. Similarly, common experience is that if oil flows out of a used or disused service station, this is more likely than not due to negligence on the part of those in charge of it (see Dixon J. in Torette House Pty. Ltd. v. Berkman (1940) 62 CLR, at p 652 ). In Byrne v. Boadle (1863) 2 H & C 722; (159 ER 299) the successful plaintiff was injured by a barrel of flour falling onto him from a warehouse when he was passing by on a road. The accident would have spoken just as eloquently of negligence on the part of those in charge of the warehouse if the warehouse had been disused, or if he were injured by a cascade of oil, or by a flow of oil at ground level. Here the inference, based on common experience, is that the flow of oil was, more likely than not, due to the negligence of those in charge of the premises from which the oil came, that is, the two respondents. (at p573)

12. Even if it were proved that the oil which caused the injury was dumped on the property by a third party, that would not in the circumstances of this case, be a defence. This was the very kind of happening which could be expected from the respondents' lack of supervision of the property. Starke J. in Hoyt's Pty. Ltd. v. O'Connor [1928] HCA 7; (1928) 40 CLR 566, at p 584 said:

". . . The duty of an occupier is . . . 'to keep his property from being a cause of danger to the public by reason of any defect either in structure, repair, or use and management, which reasonable care and skill can guard against' (Pollock on Torts, 11th ed., pp. 526-527, 512-513; cf. Latham v. R. Johnson & Nephew Ltd., per Hamilton L.J. (1913) 1 KB 398, at p 413 ; Noble v. Harrison (1926) 2 KB 332 ). The duty, as Sir Frederick Pollock says, is impersonal rather than personal (Penny v. Wimbledon Urban Council (1899) 2 QB 72 ). Again, the occupiers may be answerable for the neglect of the duty, as Hamilton L.J. (now Viscount Sumner) points out in Latham's Case (1913) 1 KB, at p 413 , 'even though but for the intervening act of a third person or the plaintiff himself' the 'injury would not have occured'. 'No doubt each intervener is a causa sine qua non, but unless the intervention is a fresh independent cause, the person guilty of the original negligence will still be the effective cause, if he ought reasonably to have anticipated such interventions and to have foreseen that if they occurred the result would be that his negligence would lead to mischief.' . . ."

See also Rickards v. Lothian (1913) 16 CLR, at pp 402-403; (1913) AC, at pp 281-282 . It is absurd in this case to consider whether reasonable care and skill was taken in the supervision of the premises to avoid the harm, because the evidence is overwhelming that no care at all was taken. (at p574)

13. This case is determined by common or decisional law, that is, the law which is made and developed by judges. A law which gives no remedy to a plaintiff in these circumstances is unjust. (at p574)

14. The appeal should be allowed against both respondents. (at p574)

AICKIN J. I have had the advantage of reading the reasons for judgment of my brother Stephen. For the reasons which he gives I agree that the appeal should be dismissed. (at p574)

Cartwright v McLaine & Long Pty Ltd [1979] HCA 16;

At a glance

Court

Decision date

Source

Judgment (76 paragraphs)

Cartwright v McLaine & Long Pty Ltd [1979] HCA 16; (1979) 143 CLR 549 (5 April 1979)

Parties

Cases Cited (4)