Fullarton v North Melbourne Electric Tramway and Lighting Company Limited [1916] HCA 12

Fullarton v North Melbourne Electric Tramway and Lighting Company Limited [1916] HCA 12 - HCA 1916 case summary — Zoe

[108]

Co. (1). In Port Glasgow and Newark Saileloth Co. v. Cule- donian Railway Co. (2) Lord Herschell said: - 'It is now well settled law that in order to establish a case of liability against a railway company under such circumstances, it is essential for the pursuers to establish negligence. The railway having the statutory power of running along the line with locomotive engines, which in the course of their running are apt to discharge sparks, no liability rests upon the company merely because of sparks emitted having set fire to adjoining property. But the defenders although possessing this statu- tory power, are undoubtedly bound to exercise it reasonably and properly, and the test whether they exercise this power reasonably and properly appears to me to be this: They are aware that locomotive engines running along the line are apt to emit sparks. Knowing this they are bound to use the best practicable means according to the then state of knowledge to avoid the emission of sparks which may be dangerous to adjoin- ing property; and if they, knowing that the engines are thus liable to discharge sparks, do not adopt that reasonable pre- caution they are guilty of negligence, and cannot defend them- selves by relying upon their statutory power. About the law, as I have expressed it, I do not think there is any controversy." The best practicable means, of course, do not mean the latest experimental devices, but such precautions as known and reason- able experience has shown to be effective. The defendants were dealing with a powerful and dangerous agent - electricity. Said Lord Robertson, for the Privy Council, in Eastern and South African Telegraph Co. v. Cape Town Tramways Cos. (3): - "Electricity (in the quantity which we are now dealing with) is capable when uncontrolled of producing injury to life and limb and to property ; and in the present instance it was artificially generated in such quantity, and it escaped from the respondents' premises and control." 'Those observations apply exactly here. Now, when the Governor in Council empowered the promoters to make the tramway, and operate it with electricity, the con- dition was expressly insisted on to take all precautions necessary

[118]

found on that issue in favour of the defendant, and that disposes of it so far as this appeal is concerned. After the learned Judge of the County Court had completed his direction to the jury, counsel for the plaintiff (Mr. Hager) submitted that his Honor should have directed them that if they were of opinion that the plaintiff's injury was caused by an electric discharge, they ought to find a verdict for her, irrespective of the question of negligence. The contention for the plaintiff, as expressed in this submission, was that the defendant was responsible if an accident was occasioned by its use of electricity, though no defect existed in its apparatus and no negligence had occurred in its use of the apparatus. The learned Judge refused, and in our opinion rightly refused, to give such a direction: it was not relevant to the issue raised between the parties, and no amendment was asked for. An application was subsequently made for a new trial on the ground of misdirection. At Mr. Huger's request the Judge ordered the particulars of demand to be amended so as to cover the claim for damages arising from the mere escape of electricity without negligence, and refused the application for a new trial. The plaintiff appealed to the Supreme Court on the ground that a new trial should have been ordered inasmuch as his Honor omitted on the trial of the action to direct the jury to find a verdict for the plaintiff if, irrespective of negligence by the defendant, its electricity escaped from its post or wires and thereby caused damage to the plaintiff. Before the Supreme Court the plaintiff's case was again put as one of absolute responsibility by the defendant for damage done by the escape (as it was called) of its electricity ; it being said that this liability was placed upon it by the Zramways Act 1890, or was placed upon it by the common law and not removed by the 7ramways Act 1890. After argument, Cussen J. discovered that the defendant was conducting its business under the provisions of the Electric Light and Power Act 1896, and further argument was directed to its liability under that Act and an Order in Council which had been made under its provisions. The Order in Council had not been put in evidence at the trial, and the Court finally intimated that they would not express any opinion on the question of liability under

[119]

the Electric Light and Power Act 1896, and would leave the plaintiff to test that question in another action where both parties might call such evidence as they chose, and they dis- missed the appeal. We think the Supreme Court exercised a wise discretion in doing as they did. The question. formally before them was whether the learned Judge should have given the suggested direction, and that only. Had they proceeded as if the amendment made on the application for a new trial had in fact been made at the hearing, and determined whether liability, outside negligence, attached to the defendant, they must have done so on the facts and documents already proved without giving the parties an opportunity to call further evi- dence; and had they ordered a new trial without determining that question they might have done an injustice to the litigant who had succeeded on the only issue properly raised at the hearing. The plaintiff then appealed to this Court, and it was urged that there was an absolute liability either under the common law, or the Tramways Act 1890 and the Order in Council issued under its provisions, or the Electric Light and Power Act 1896 and the Order in Council issued under its provisions, or under some or all of them. We considered that we could not look at an Order in Council that had not been put in evidence, but it was suggested that even if there was not an absolute liability, the plaintiff had a cause of action because there was uncontradicted evidence that one of the defendant's ground wires had corroded, and that, except for the corrosion, the accident would not have occurred, and the case of Sadler v. South Staffordshire and Birmingham District Steam Tramways Co. (1) was said to be an authority for this proposition. If we were satisfied that, whatever may be in the Order in Council under which we know the defendant carried on its business, but of the contents of which we know nothing, and notwithstanding any other evidence which might be called in its behalf, the defendant has no answer in law to the plaintiff's claim, we should think that a new action would be unnecessary. In that case the Court could and should order a new trial so that damages might be assessed, but we are far from being so satisfied. We therefore think that the appeal should be dismissed and the

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Judgment (127 paragraphs)