Cox Brothers (Australia) Limited v Commissioner of Waterworks [1933] HCA 50

Cox Brothers (Australia) Limited v Commissioner of Waterworks [1933] HCA 50 - HCA 1933 case summary — Zoe

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withstand the pressure of the water or the pressure had become very much higher than the respondent believed. The respondent is liable for the damage done without proof of negligence. The outburst of the water was a nuisance and a trespass without proof of negligence (Midwood & Co. v. Manchester Corporation (1) ; Charing Cross Electricity Supply Co. v. London Hydraulic Power Co, (2)), Owing to the water being thrown on to the plaintiffs' premises for such a long time the damage was greatly magnified. There is no doubt that what occurred was both a nuisance and a trespass and the defendant is liable unless he can show that he was authorized either expressly or impliedly, and he must prove that what he did was a necessary consequence of what he was authorized to do (Ogston v. Aberdeen District Tramways Co. (3) ). The question is, was the defendant authorized by statute to do what was done (Municipal Tramways Trust v. Stephens (4); Geddis y. Proprietors of Bann Reservoir (5) ). If the statute authorizes the doing of this act, the onus of establishing the justification lies on the defendant and not on the plaintiff (Metropolitan Asylum District v. Hill Os Manchester Corporation v. Farnworth (7) ). These cases show that it lies upon the defendant to establish the absence of negligence. The defendants must show that the flooding of the plaintifis' premises _ was a necessary or inevitable consequence of the exercise of theit powers. In this case there is actual evidence of negligence and that consists of two branches - (a) negligence prior to the outburst, and (b) negligence subsequent to the outburst. This element of negligence is quite independent of the liability for nuisance and trespass (Mose v. Hastings and St. Leonards Gas Co. (8)). No inspection was ever specially made of these pipes since they were laid down in 1908. There must have been a deterioration in the pipes as they were tested up to a pressure of 344 Ibs. to the square inch when they were put in and the maximum pressure at the material time was only 84 lbs. per square inch. The only precaution taken to prevent an outbreak was to prevent the water pressure

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Ricu J. Mr. Cleland presented his argument in support of the appeal under two divisions. He urged first, that negligence was unnecessary to his cause of action, and if it entered into the matter at all must be negatived by the respondent in order to make out its statutory justification ; and secondly, that in any event negligence was conclusively established. I think his first position fails upon reason and authority. The injury complained of did not arise from the installation or establishment of the undertaking or from anything in the character of the apparatus of which it is composed. It arose from the bursting of a pipe in the operation of the undertaking. Just as negligence must be proved in a railway accident so it must be proved when what is complained of is the manner in which the undertaking is conducted or maintained. So far as authority goes the cases which are collected and discussed in the Irish case of Burniston v. Corporation of Bangor (1) are decisive. The second question raised by the appellants' argument itself raises two separate questions, both, I think, of fact. The first is whether in the manage- ment and maintenance of the undertaking the respondent omitted any reasonable precaution which, if taken, might have averted the damage altogether. This, in substance, means, did the pipe burst through negligence? I agree with Piper J. in the opinion that no want of care on the part of the respondent has been proved which would have prevented the pipe bursting or the column of water ascending and inflicting some damage upon the appellants. The second question is whether by an exercise of proper care the respon- dent might by his servants have reduced the column of water at an earlier time and by doing so averted any substantial part of the total damage. This I think is the pinch of the case. The facts were examined during the argument and, indeed, are summarily but adequately set out in the judgment appealed from. I am impressed by the fact that from the time the column of water first began to do damage until it ceased to do so forty minutes appear to have elapsed. Of this no more than ten minutes were required to perform the actual operation of opening the scour and turning the valves. Can the flow of the water during any substantial part of

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the part of the respondent. But I have less confidence as to the answer to the question, whether, by the exercise of proper diligence on the part of the respondent, the time might not have been shorten during which the discharge of water was received by the plaintit premises. Piper J. has made exact findings of the times which are material to this question and these findings are supported by evidence Water was rising to the surface of the road by 11.15 p.m. It wa then obvious that the main was leaking. Within a minute or so of 12.30 a.m. the water ascended in a column menacing the neighbouring premises. At about 1 a.m. a turncock in the respondent's employ arrived and began at once to close the valves in order to stop the water. By 1.10 a.m. the discharge of water had been reduced so that it did no further harm. It is probable that the column at first shot up perpendicularly and that it did not enter the plaintiffs premises until it assumed, some minutes afterwards, a different direction. The bore of the main was ten inches and the pressure was probably almost 84 lbs. to the squareinch. It appears that withi the Metropolitan area of Adelaide mains burst upon the average over twenty times a week, but, although worse bursts have been known, none has cast up so thick a column of water, or caused such disaster. What leaks or escapes are comprised in the average of more than twenty a week is not stated. The Metropolitan area is divided into twelve districts for each of which there is a turncock, who knows where the valves are and how to close them. A ten inch main containing water at such a pressure as 84 Ibs. to the square inch must be closed gradually and the turncocks are instructed to care in shutting off any valve and not to do so too rapidly. The ten minutes occupied, between 1 and 1.10 a.m. in the process of reducing the discharge of water was not shown to be excessive. The question is rather whether the process of shutting off the water would not, if proper precautions had been adopted, have commenced at an earlier time so that some of the damage would have been avoided. No system of patrol is practised for the purpose of finding escapes, but a small reward is given to every member of the publie who first Teports one, and, among the " emergency telephone calls" shown on the page of the telephone directory, the " Water Supply " offic number appears. At night a caretaker attends this telephone, ani

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upon the report of any outburst, he telephones to the appropriate turncock. For every two districts one turncock is "'on duty" at night. He may sleep at his own home, but must respond to a telephone call. The learned Judge finds that the outburst was reported to the office by telephone " within a few minutes " after the leak became dangerous, which occurred "' within a minute or so of 12.30 a.m." The caretaker experienced a little delay in calling the telephone number of the turncock because of the many inward calls he was receiving reporting the occurrence. But by 12.40 a.m. the turncock received the call. He was in bed, but he dressed at once. Against such an emergency he had a bicycle prepared with lamp and keys, and, by this means, he arrived at Pulteney Street by la.m. His house was a mile and a half away. Piper J. found that neither caretaker nor turncock was guilty of negligence or delay and no sufficient reason exists for questioning the correctness of this finding. But a serious attack is made upon the sufficiency of the arrangements of the respondent for learning of an outburst and for quickly turning off the water. No very practical suggestion has been made for a means of ascertaining that an escape has commenced other than the existing reliance upon voluntary reports from those who become aware of it, including, of course, the police. The respondent can hardly be expected to establish a systematic patrol of every street at frequent intervals. On the other hand, the respondent's arrangements for quickly turning off the water, after news of an escape is received, are obviously open to improvement. A direct telephone to turncocks, a greater number of them, a speedier means of transportation, and a requirement that, when on duty, they shall be always awake and clothed, are suggestions which throw no very grievous burden on the respondent, and would, no doubt, lead to an earlier cessation of such a water spout as damaged the plaintiffs' premises. But it does not follow that failure to adopt these expedients amounts to negligence. The respondent is called upon only to take reasonable precautions to avert damage to others, which, otherwise, is likely to arise from his undertaking. Whether reasonable prudence to prevent harm to others dictates such measures is a question of fact depending upon various matters of degree, of which the nature of the consequences to be apprehended from their

At a glance

Court

Decision date

Before

Source

Judgment (124 paragraphs)