Commissioner of Railways (WA) v Stewart [1936] HCA 51;

Commissioner of Railways (WA) v Stewart [1936] HCA 51; - HCA 1936 case summary — Zoe

[10]

The railway embankment in the present case is a physical feature of the land, constituting a chief cause of the flooding on its western side. The escape of pent-up waters at the northern end of the embankment, occurring, probably, at some time shortly after nine o'clock in the evening, was the direct and actual cause of the inundation of places on the eastern side where some of the plaintiffs dwelt. It is, I think, quite clear that openings in the embankment might have been provided which would have discharged during heavy rainfall a quantity of water many times greater than that flowing through the existing culverts. If the capacity of the opening had been thus multiplied, a great part of the imprisoned water would have escaped without contributing to the damage of which the plaintiffs complain. What is the minimum capacity which would have satisfied the obligation resting upon the commissioner of exercising due care to provide for the escape of water may be difficult to determine. But I have no doubt that the actual provision falls far short of that minimum. Prima facie, therefore, the insufficiency of the waterways left by the railway is a cause of the damage suffered. In arriving at the conclusion that an authority charged with the construction or maintenance has failed to provide a sufficient waterway, a court is not bound to undertake the difficult engineering task of specifying precisely what flow of water should be allowed for and what means should be adopted for letting the water pass under or through the works constructed. No doubt before such a conclusion is reached, some opinion must be formed as to the catchment, the rainfall to be expected, the run off and also as to the practicability of dealing with the flow of water. In the present case, the most important consideration, that upon which views most differed, is the run off to be provided against. In my opinion the ten per cent run off allowed for by the railway engineers is shown to be a mistaken estimate. The source of error probably lies in a failure to allow for intensity of downpour supervening upon a period of rainfall in which the ground has become saturated.

[15]

Further, I agree with the view that the outburst of water through the northern end of the embankment, where it crosses a road called Macartney Street, did not account for the water held back across the course of the channel leading from the railway culverts. The water discharged by the break in the bank at that point, in my opinion, could not have contributed to the damming back. Again, I do not think that this contention of the commissioner is met by the fact of the discharge of water through the two cattle pits which stand respectively over and somewhat north of the culverts in the middle of the embankment. That discharge involved no destruction of the embankment and no sudden outburst of pent-up water. The rate of discharge from the cattle pits could not exceed the rate of intake into the basin on the west. Consequently, although operating at a higher level than the additional culvert, the cattle pits may be considered as really serving the purpose of affording just such a means of allowing waters to pass under the railway line as the commissioner should have provided at a lower level in the embankment. Nevertheless, I do not think that the operation of the conditions east of or down stream from the embankment relieves the commissioner from responsibility for any of the damage. So far as it affects the plaintiffs on the west, it does not do so because, in my opinion, the additional two feet by which the water might have been raised by such conditions cannot be regarded as an independent cause of the inundation they suffered. If the conditions downstream had not existed and a completely satisfactory discharge for all water sent under the railway had been maintained, the water in the westerly basin would have risen to the same height. This is shown to be the case by the outburst of water at Macartney Street which accounted for a great volume and by the continued flow through the cattle pits. I do not think that the commissioner can claim that, even if he had fulfilled his duty of care, yet if no corresponding reform had been made by the road authority some damage would or might have been suffered, when in fact the situation was that his actual means of taking off the water were insufficient to prevent the water rising to the full height of his embankment and so doing the very same damage as occurred even if conditions downstream had caused no rising of the waters on the westerly side.

[22]

Culverts of the dimensions which the respondents' witnesses said were demanded by all the factors necessary to be considered would not, it was pointed out by the appellant's counsel, have coped with the waters which came down the water courses on this occasion and spread to the plaintiffs' properties. But again it is not shown that the inadequacy of the culverts did not cause a big enough accumulation on the western side and a sufficiently concentrated flow over Macartney Street, where the water did not naturally flow, to cause damage to the plaintiffs on both sides of the embankment. It was not a necessary consequence of the exercise of the statutory authority under which the works were constructed that this damage should follow. This damage could have been avoided by the provision of a sufficient outlet for the waters which would be reasonably expected to flow against the railway works that had been erected. There was no duty of absolute insurance against damage arising from the exercise of the power but there was a duty to exercise it with due prudence and caution. I agree with the conclusion that the rainfall on 8th March was not a deluge of such magnitude and intensity that it should be classed as an "act of God." The culverts should have been capable of dealing with the most prolonged and intense downpour of rain which in the climate of Western Australia might be expected, though perhaps rarely, to occur; the rain on this occasion did not exceed this standard (Cf. Great Western Rail. Co. of Canada v. Braid[12]). Prima facie the damage done to the respondents was the reasonable and probable result of the default of the constructing authority in the observance of its duty to provide sufficient culverts, and the appellant has not discharged the onus of showing that the damage was due to other intervening causes. In any event it would not be possible to distribute the damage due to the default and the damage, if any, due to other causes beyond the reasonable prevision of the responsible authority (Cf. Fry J. in Nitro-Phosphate and Odam's Chemical Manure Co. v. London and St. Katharine Docks Co.[13]).

At a glance

Court

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Before

Source

Judgment (30 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (2)

Commissioner of Railways (WA) v Stewart [1936] HCA 51; (1936) 56 CLR 520 (4 November 1936)