The injuries of which the plaintiff complained were alleged to have been occasioned by (1) the want of reasonable care in the original construction of the drain, in that it was not large enough to carry off the water which fell upon the area drained by it; (2) default on the part of the defendants in cleaning and maintaining the drain; (3) default on their part in not increasing the capacity of the drain so as to make it large enough to carry off the water flowing into it from time to time.

It appeared in evidence that on several occasions in the years 1905, 1906, 1907, 1908 and 1909 the drain failed to carry off the water flowing to it, by reason of which the plaintiff's premises were injuriously affected. It also appeared that in 1873, when the drain was originally constructed, and up to 1882, the date of severance, the drainage area was substantially in a state of nature, but that since that time it has become more populous, several streets and water channels having been constructed by the municipal authority of Melbourne, and that in consequence of the altered conditions of the surface the water flowed off it much faster than at first, so that the drain, whether it was or was not originally sufficient, is no longer able to carry off all the water flowing into it.

In support of the third ground of claim the plaintiff maintained that under these circumstances the defendants were bound to enlarge or reconstruct the drain so as to make its capacity sufficient to carry off all the water now or hereafter flowing to it. The defendants denied that they had been guilty of negligence in the original construction or of any default in maintenance, and contended, further, that they were not liable for any loss occasioned by the increase of the flow of water to the drain caused by the building and street-making operations within the adjacent Melbourne municipal district.

There was evidence to show that, according to present ideas, based upon a more accurate knowledge of the rainfall in that part of Victoria and the rapidity of its discharge upon a sloping surface, the capacity of the drain was in fact originally insufficient to carry off all the rain falling upon the area which it served, but that according to the best opinion and advice procurable in 1873 it was reasonably sufficient for the purpose, having regard to the then present conditions and reasonable expectations of the future.

The learned Judge found that the original capacity was in fact insufficient, but that the defendants were not guilty of any negligence in its design or construction.

As to the insufficiency he appears to have relied in part upon complaints supposed to have been made in 1875. But on more careful examination of the evidence it appears that the supposed complaints related to damage done to the drainage works themselves by a heavy fall of rain, which was immediately repaired by the appellants. There was no evidence of any further accumulation of water by reason either of insufficiency of the drain or of damage to it until the year 1905, a period of 30 years. This is, however, in my judgment, immaterial in view of the finding as to negligence. But the learned Judge thought that the case was concluded against the appellants by the decision of the Judicial Committee in Hawthorn Corporation v. Kannuluik[1], which, as I understand his judgment, he took to mean that it is not a defence to a municipal authority to show that works constructed by them were sufficient at the time of construction, if at any subsequent time they prove, by reason of altered circumstances, to be insufficient. He thought, therefore, that the defendants were liable as for pouring the water from the Melbourne area upon the plaintiff's land. But upon a careful consideration of Kannuluik's Case[2], and in particular of the judgment of Holroyd J.[3], with which the Board agreed, it appears that in that case the additional flow of water which occasioned the damage complained of was caused by the defendants themselves, or others for whose acts they were responsible, who had, after the construction of a drain originally sufficient, constructed other drains discharging into it, which so increased the flow of water that it was no longer sufficient.

The judgment under appeal is not, therefore, supported by this decision. No other authority has been cited in support of the argument that when a work authorized by Statute is carried out by a public body without negligence either in design or execution, it can become actionable as against the constructors by reason of subsequent events over which they have no control.

Such a contention is, indeed, negatived both by principle and authority. When a public body undertakes in the exercise of statutory powers to construct a work of public utility, it is bound to use reasonable care both as to design and execution, and if from want of such care injury is caused to an individual he can maintain an action for damages. But in the absence of such negligence the construction of the work is a lawful act, which cannot afterwards become unlawful as against the constructors except by reason of their own subsequent unlawful acts or omissions. They are not liable for mere inaction, or, as it is called, non-feasance, unless the legislature has imposed upon them the duty of action. The remedy, if any, in such a case is to be found in the Statute which authorized the work. If none is to be found there, the persons injuriously affected have no cause of action, whatever other means may be open to them of obtaining redress: Hammersmith and City Railway Co. v. Brand[4]; Raleigh Corporation v. Williams[5].

If, therefore, there were no more in the case, the appellants would be entitled to judgment. But the learned Judge also found that in 1910 the outlet of the drain was very seriously obstructed by a compacted mass of material, which, according to the evidence, diminished the capacity of the outlet by about one-half. He did not make any express finding as to the existence of this obstruction at the times when the floodings complained of occurred. But upon the evidence there was reason to believe that the accumulation of the mass had been going on for some years, and it appeared that the defendants' officers had since 1905, when a complaint was first made on the subject, given instructions to clear out the drain periodically. There was, therefore, evidence fit for the consideration of a jury to show that the floodings complained of were occasioned in part, if not altogether, by this obstruction. If the case had been tried with a jury who had been directed to the effect of the learned Judge's judgment, there must have been a new trial. To grant a new trial in the present case, where the damages awarded were only £100, would be oppressive. On the other hand, it is undesirable for this Court, or, indeed, any Court of appeal, to exercise the functions of a Court of first instance in determining facts which have not been found by the Court appealed from. The parties have, however, agreed that if the Court is of opinion that upon the evidence the injuries to the plaintiff were caused in part by the obstruction I have described, but that the defendants were not liable for damage which would have accrued if there had been no such obstruction, judgment shall be given upon that footing without a new trial.

In my opinion the damage was, in fact, on some at least of the occasions of flooding, largely increased by such obstruction.

It was contended for the appellants that they were not liable for any loss occasioned by the increased, or, indeed, any, flow of water from the Melbourne district, or bound to keep the drain clear so as to allow of its discharge. In my judgment they were bound to maintain the drain as originally constructed in efficient condition and clear of obstructions so as to allow, to the extent of its capacity, the flow of such water as they knew was actually likely under existing circumstances to flow into it, no matter whence it came. But I think that they are not liable for any damage which would have occurred if the drain had not been obstructed. The parties have agreed that this damage shall be taken at £50, which must be deducted from the £100, leaving a sum of £50 for which the appellants are liable.

But for the question of negligent maintenance, I should be of opinion that judgment ought to be entered for the appellants.

The original construction of the drain, which was made in 1873 under Act No. 359 (1869) was found by the learned primary Judge to have been free from negligence. So that no liability can arise from that source.

When the evidence is carefully examined, there is none to support the finding of actual insufficiency to meet the requirements of 1873, or even of 1882. One of the minutes of the Essendon Council discloses damage by a flood, apparently an extraordinary occurrence, and at all events not shown to be an event which should reasonably have been anticipated. Another of those minutes refers to damage done, not to the respondent's property, but to the drain itself, and arising from the same cause - the flood. But it was upon those minutes alone that the learned primary Judge founded his conclusion of actual insufficiency, and there is no other evidence to support it. On the other hand, there is great negative force in the fact that for over 30 years no instance appears of any interrupted or unsatisfactory working of the drain. That finding, therefore, cannot be supported. Even if it could, it would not be sufficient to impose the full extent of liability declared in the judgment appealed from. For that judgment is based upon the supposition that even if the drain were ample to carry off all the water which would flow down according to its working capacity as existing in 1882, when the severance took place, yet the Essendon Council is responsible for all additions to that water overtaxing the drain's capacity, not contributed by itself or with its consent, but caused by new works or altered conditions in the adjoining municipality. The position cannot be sustained.

The question is: What burden or obligation remained upon Essendon in respect of this drain after the severance had taken place? The Order in Council severing the Flemington and Kensington Ward from the defendant municipality gave no directions as to the matter.

The necessary implication is that the municipality of Essendon rested under these obligations: (1) to receive from the new municipality water along the drain up to its constructional capacity at the date of severance, and (2) to exercise care in maintaining and cleansing the Essendon portion of the drain so as to preserve that capacity.

But it was not under the obligation of receiving from the neighbouring municipality any further drainage. As to such further drainage beyond the 1882 capacity of the drain in a proper state of maintenance, Essendon was in the same position as if there had been no drain at all.

The learned Judge thought Kannuluik's Case[6] laid down the principle that the mere fact of not preventing a neighbouring municipality from sending down excess drainage rendered the recipient municipality liable for consequent injury in its territory. But in that case Hawthorn either itself constructed the works conveying water into the main drain from the adjoining municipalities, or consented to their construction.

The Privy Council was careful to say[7], as the basis of their judgment: "A number of subsidiary channels have since been made by the municipal authorities of Hawthorn, or with their permission, for the purpose of running off the storm-water and sewage into the main drain. The result is that the water and sewage from the upper parts of Hawthorn and from the parts of Kew and Boroondara which drain through Hawthorn are concentrated and poured into the main drain with great violence."

But here there was no such action and no such permission on the part of Essendon. We have not now to determine whether Melbourne would be liable for the excessive outpour, but while holding Essendon not responsible for the unpermitted act of another, I by no means assert that the private individual injured would be without remedy.

The Essendon Council could not have physically stopped the surplus flow; an action might conceivably have been brought to restrain it, but, for the reasons stated by Jessel M.R. in Attorney-General v. Dorking Union[8], the omission to bring such an action does not constitute an actionable wrong, nor does it in my opinion necessarily amount to a permission, in the necessary sense of authority, to do the objectionable act.

It is submission rather than permission. And the submission may have arisen from the fact that the municipal property is not injured - private persons being left to their remedy, if any, against the real actor. There is consequently no parallel between this case and Kannuluik's Case[9].

Here it is not the defendant who directly or indirectly has been repeatedly pouring water into a receptacle or channel proved over and over again to be insufficient to hold and pass it on.

Up to that point the action fails. But there remains the question of negligent maintenance, by which the drain was kept in a condition making it really a nuisance so as to fall within the principle stated by Lord Hobhouse in Pictou Municipality v. Geldert[10], and by Lord Herschell L.C. in Sydney Municipal Council v. Bourke[11].

For a breach of its obligation to cleanse the drain within its own territory, Essendon, on ordinary principles, must repair any damage arising by reason of the consequent overflow of water reasonably anticipated, up to the limit of the drain's capacity.

That there was such a breach the learned Judge found, and there is evidence to support his conclusion. The debris reduced the discharging capacity of the drain by about two-fifths.

There is also strong evidence that some of the damage would have been caused even if the 1882 limit of capacity had not been exceeded. The assessment of damages, however, cannot be upheld, because it included compensation for the excess beyond the 1882 limit - namely, for water brought down by the very extensive accretions since 1902, made by the Melbourne corporation, for which Essendon is not responsible.

In the absence of consent, a new trial would have been inevitable, but the parties have wisely agreed to the amount being fixed at £50.

I concur in the judgment proposed by the learned Chief Justice.

Appeal allowed in part. Damages reduced by consent to £50. Appellants to pay costs of appeal.

[3] 29 V.L.R., 308, at pp. 317 et seq; 25 A.L.T., 97, at pp. 101 et seq.

[10] (1893) A.C., 524, at p. 531.

[11] (1895) A.C., 433, at p. 441.