Gorringe v Transport Commission

Gorringe v Transport Commission - [1950] HCA 6 - HCA 1950 case summary — Zoe

[7]

The commission in relation to the road in question is a highway authority only. It has no other functions or powers, for example, in respect of drainage. The culvert was plainly part of the road. It was constructed simply for the purpose of carrying the road over the natural stream which existed before the road was made. The plaintiff did not challenge the general proposition that a highway authority is not liable for mere non-feasance but is liable for misfeasance or malfeasance (Buckle v. Bayswater Road Board [1] ) where the leading authorities are considered. It is argued, however, that s. 8 (2) imposed an absolute obligation upon the commission to maintain all State highways, and that therefore the commission does not enjoy the immunity from responsibility for the consequences of non-feasance which the law gives to highway authorities. In my opinion this argument should not be accepted. In the first place, one would expect much clearer language if Parliament intended to alter in relation to the Transport Commission a well-established legal principle of such great importance. In the second place, the argument for the plaintiff goes too far. Section 8 (2) provides that the Transport Commission shall cause highways to be "maintained." In the principal Act, the Roads and Jetties Act, 1935, s. 3, the following provision appears: - " "Maintenance," in relation to a road, means the reconstruction, improving, widening, diverting, altering, or repairing thereof." It would be quite unreasonable to construe s. 8 (2) of the Roads and Jetties Act, 1944 as imposing an imperative absolute duty upon the commission to reconstruct, to improve, to widen, to divert, to alter and to repair all State highways and subsidiary roads. Thirdly, full effect can be given to s. 8 (2) by regarding it as prescribing the authority which is to do the work of maintenance. It was so held by the Full Court of Victoria upon an indistinguishable provision in Edgar v. Shire of Seymour [1] . Finally, I call attention to the fact that s. 8 (2) provides that, except as otherwise provided, the Transport Commission shall cause highways and roads to be maintained "as it shall direct." The latter words show that it intended to confer upon the commission authority to maintain roads in such measure, degree and manner as the commission shall determine. The section creates a power. It does not impose a duty. Accordingly I agree with the learned trial judge and the Full Court that the relevant statutes do not show any intention to alter the law with respect to non-feasance in its application to the Transport Commission as a highway authority.

[11]

The plaintiff strongly relied upon what was said by Lush J., in McClelland v. Manchester Corporation [1] : - "You cannot sever what was omitted or left undone from what was committed or actually done, and say that because the accident was caused by the omission therefore it was non-feasance. Once establish that the local authority did something to the road, and the case is removed from the category of non-feasance. If the work was imperfect and incomplete it becomes a case of misfeasance and not non-feasance, although damage was caused by an omission to do something that ought to have been done." In the statement quoted, Lush J., was referring to the facts of the particular case which was before the court, where the evidence showed [2] that a road authority had made and lighted two streets in such a way as to lead anyone to suppose that there was a continuous thoroughfare, whereas in fact there was an unfenced ravine running across the end of one of the streets. The apparent continuity of the lighting constituted a grave danger and was created by the corporation itself. Accordingly there was more than mere non-feasance. There was the negligent exercise of a power. The words "Once establish that the local authority did something to the road and the case is removed from the category of non-feasance" ought not to be read as purporting to state a general principle that if a highway authority once does anything at all to a road, then the authority becomes liable for damage arising from the non-repair of the road, whether or not that which the authority did had any relation to the resulting damage. Reference may be made to the comment in Sheppard v. Glossop Corporation [3] upon the quoted statement. But the following statements by Lush J., in McClelland's Case [4] are recognized as an accurate statement of the law: - "It is, I think, clear law that when a local authority undertakes and performs a duty, whether they are bound by statute to do so or whether they have an option to perform it or leave it unperformed, however it arises, they are bound to exercise proper and reasonable care in its performance, and that there is no difference in this respect between a public body and a private individual who does an act which if carelessly done may cause injury to others if a duty is undertaken and improperly performed, and actual damage is occasioned thereby, the person injured has, as I have already stated, a perfectly good cause of action."

[15]

The question for determination in this appeal is whether the plaintiff in an action against a highway authority for damages caused by the condition of a highway under its care and management was entitled to have his case submitted for the consideration of the jury. The plaintiff asserted that the defendant was under a statutory duty to cause the highway to be maintained but he also placed his case upon an allegation that the defendant had been guilty of negligence in the actual maintenance of the highway. The Transport Commission is the defendant because the road in question, the Lyell highway, is a State highway. State highways are under the control of the commission. The plaintiff appellant was a carrier of goods. In the course of his business his employees drove his motor trucks laden with goods over the Lyell highway. In the early hours of the morning of a wet night in August 1947 one of his trucks plunged into a cavity that had appeared in the road and it burst into flames. The driver was killed and the truck and the trailer attached to it and the load were destroyed. The plaintiff paid workers' compensation to the driver's widow and he seeks in the action to recover the amount he so paid and the value of the truck and the trailer and of the goods destroyed. The place where the disaster occurred is about a mile short of Ouse on the journey from Hobart. At that place the road goes over a natural water course. A culvert had been placed over the stream, which was ordinarily a small one, and above that the road had been built up with filling to a height of twelve feet above the surface of the decking. At the surface, the road was about twenty-one feet wide. To a distance of about three feet from the edge of the embankment on each side the surface was macadamized. The walls of the culvert were of masonry. Across it six-inch timbering was placed upon the masonry and transverse decking was placed upon the timber. The filling rested upon this construction in direct contact with the wooden decking. The width of the culvert was six feet five inches and its length fifty-two feet nine inches. Its depth from the decking to ground level was two to three feet. The form of construction had been practised for a very long time but the culvert was rebuilt in 1928.

[21]

The first contention depends upon the statute law of Tasmania governing the powers and duties of the Transport Commission with reference to State highways. The Transport Commission was established by the Transport Act 1938. An earlier statute (the State Highways Maintenance Act 1929) had authorized the Governor in Council to declare roads to be State highways. It had vested State highways in the Crown and placed them under the control of the Minister. It had enacted that the Minister should cause all State highways to be maintained as he might direct. This statute was repeated by the Roads and Jetties Act 1935. Part II of the latter Act dealt with State highways. Among other things it dealt with a trust fund that had been established by the former Act for their upkeep. By s. 9 it repeated the provision vesting them in the Crown and placing them under the control and direction of the Minister. By the same section it again provided that the Minister should cause all State highways to be maintained as he might direct. When three years later the Transport Commission was set up by the Transport Act 1938, that Act charged the commission with the administration of the Roads and Jetties Act 1935 and authorized the commission to exercise the powers which the latter Act conferred on the Minister (s. 9 (1) VII (c) and s. 10 (1) III). The Transport Act also provided that all works authorized or directed by the commission to be effected under or for the purposes of the Roads and Jetties Act should be constructed, carried out and effected by the Director of Public Works: s. 37. Finally, by the Roads and Jetties Act 1944, s. 8 of the Roads and Jetties Act 1935 was replaced. The new s. 8 pursued the policy embodied in the Transport Act. It provided that State highways should be vested in the Crown but that they should be under the control and direction of the Transport Commission. By sub-s. (2) it enacted that except as otherwise provided the Transport Commission should cause all State highways and subsidiary roads to be maintained as it should direct. The plaintiff appellant claims that this provision imposes a duty to maintain State highways with a correlative right in a person injured by a defect in the highway to complain of the failure in the duty.

[25]

The second ground upon which the plaintiff's appeal was supported amounts to an assertion that there was more than a failure upon the part of the defendant Transport Commission to maintain or repair the culvert and the superincumbent filling or embankment and surface constituting the highway; that the commission entered upon or undertook the exercise of its powers or fulfilment of its general duty to remedy the dangerous or improper condition of the highway at that place and negligently performed the function by doing no more than repeatedly placing gravel or the like in the depression in the travelled surface. The basis of the contention is to be found in a passage often cited which occurs in the judgment of Lush J., in McClelland v. Manchester Corporation [1] . His Lordship, having said that if a highway authority leaves a road alone and it gets out of repair, no action can be brought, although damage ensues, proceeded as follows: - "But this doctrine has no application to a case where the road authority have done something, made up or altered or diverted a highway, and have omitted some precaution, which, if taken, would have made the work done safe instead of dangerous. You cannot sever what was omitted or left undone from what was committed or actually done, and say that because the accident was caused by the omission therefore it was non-feasance. Once establish that the local authority did something to the road, and the case is removed from the category of non-feasance. If the work was imperfect and incomplete it becomes a case of misfeasance and not non-feasance, although damage was caused by an omission to do something that ought to have been done. The omission to take precautions to do something that ought to have been done to finish the work is precisely the same thing in its legal consequence as the commission of something that ought not to have been done, and there is no similarity in point of law between such a case and a case where the local authority have chosen to do nothing at all." This passage is of course to be read with the facts of the case which when considered with the findings of the jury showed that, a road ending dangerously in a ravine having been dedicated to the public, it was taken over by the corporation and made up, paved, kerbed, sewered and furnished with side walks. But the ravine was not fenced in and apparently the place was not properly lit. The jury found that the road as made up and constructed was a danger to persons using it and the ravine was a hidden trap to them. They further found that in opening the road to the public after making it up and in maintaining it proper care was not taken to warn the public of the danger. The case has been discussed a good deal and it is necessary to read with it the observations made upon it in Sheppard v. Glossop Corporation [1] . But whatever may be the correct view of the decision clearly the case contemplated by Lush J., in his statement of principle was that of an entire piece of work, namely, the preparation for the use of traffic of an unmade road set out in such a way that it would be dangerous for traffic to use unless the preparation was completed with fencing and perhaps lighting. It has no application to the facts of the present case. Here what was left undone and what was done are not only severable, they are in my opinion unconnected. The caving in of the road so as to form the pit into which the truck fell was caused by the action of water from beneath, rendered possible, as the jury might find, by the decay and failure of the decking of the culvert and perhaps by some additional weakening of the bank. The repairs effected by filling in the depression concerned only the running surface of the road. The question whether it is possible that any consequential effect was produced upon the stability of the bank by moisture which the filling of the depression retained is the subject of the third contention and that question is yet to be dealt with. But plainly enough the placing of the gravel, &c., in the depression was not in the least directed to the security of the embankment or the condition or sufficiency of the culvert or the safety of that part of the roadway. It was directed only to the levelling of the travelled surface. Even if the proper inference for the patrolman or the engineer to draw from the existence of the depression was that a collapse of part of the culvert had occurred, it would still be true that the patrolman on behalf of the commission took no positive or active step in the matter. The levelling of the surface was not in any way connected with it. To fill in the depression with earth or gravel did not mean that traffic could pass over the culvert while without the filling it could not. With or without it the road was passable. It meant only a more level surface. I do not say that the result would have been different had it been otherwise. But it cannot be said that the commission's employees did anything that would amount to throwing an unsafe road open to traffic afresh or providing a place for traffic not otherwise available that was unsafe.

[28]

The third ground put forward on behalf of the plaintiff appellant is that on the evidence it was open to the jury to infer that by repeatedly placing gravel, earth, &c. in the depression there had been a concentration of moisture at that point which had contributed to the weakening of the bank or filling so that it was more likely to collapse when support from beneath was withdrawn by the disappearance of portion of the decking of the culvert and by the influence of water. Having regard to the manner in which the case was presented below it is doubtful whether this contention is now open to the appellant. But, however that may be, I do not think that it is a case which the evidence supports. The foundation upon which the case is built is the suggestion that if the embankment or filling were dry it would or would be likely to hold together, having been once consolidated, notwithstanding that it lost the support in part of the decking of the culvert. It would form something in the nature of an arch, it was said. On the other hand, if the filling became moist there would be little or no friction between the particles of earth of which it was composed and it would tend to collapse. It may be conceded that the jury could adopt so much of the theory upon which the contention depends. But the theory then goes on to attribute a moistening or wetting of part of the embankment to the process of filling up the depression with gravel and clay. It is of course evident that unless a substantial portion of the upper part of the embankment twelve feet high was moistened its collapse could not be explained in this way, whether as a decisive cause or a contributing factor. There is, I think, no evidence that any substantial part of the bank was made wet or moist independently of the action of the banked-up water of the stream and the rain. There is some evidence that the earth and gravel in the depression was wet and muddy in wet weather and retained moisture and it was possible for the jury to treat the description of a quagmire as applying to it. But it would be unreasonable to treat the presence of the earth and gravel in the depression as a reason for supposing that moisture seeped therefrom into the substance of the bank so as really to weaken it and make it more likely to collapse.

[41]

I think that the "tetralogy" of cases which I have been considering finally established two principles of law. These are (1) that at common law no person or persons, corporate or unincorporate, is or are subject to any duty enforceable by action to repair or keep in repair any highway of which, whether at common law or by statute, he or they or it has or have the management and control, and (2) that if a duty to repair or keep in repair a highway or highways is imposed by statute on any such person or persons, that duty is not enforceable by action unless the statute makes it clear by express provision or necessary implication that the duty is to be enforceable by action at the suit of a person injured by its breach. With regard to the first rule, it may well be said that it would have been entirely out of character if the common law had imposed a positive duty to repair enforceable by action for damages. With regard to the second, the distinction drawn in Young v. Davis [1] between Couch v. Steel [2] and the case there before the court demands a moment's consideration. In each case the statute said that a person in the position of the defendant "shall" do a specified thing. The distinction actually taken was that in the one case the duty was imposed for the benefit of a class of persons of which the plaintiff was a member, whereas in the other the duty was imposed for the benefit of the public at large. A further and perhaps more practical distinction suggests itself. In Couch v. Steel [2] the statutes (7 & 8 Vict., c. 112 and 13 & 14 Vict., c. 93) required the keeping on board ship of "a sufficient supply of medicines suitable to accidents and diseases arising on sea voyages" in accordance with a scale to be issued by the Board of Trade and published in the London Gazette. What was required to be done was a specific ascertainable thing, and the master of the ship could do that thing or refrain from doing it. In Young v. Davis [1] the duty was "to repair and keep in repair," a duty which by its very nature involved considerations of degree and discretion such that it would be very unlikely that the legislature would intend to impose an absolute duty subject to the sanction of a civil action. It is indeed not surprising that the courts in the early highway cases were influenced by the probability of a "multitude of actions," whereas in Couch v. Steel [2] the court expressly said that no such deterrent consideration arose.

[43]

But after Gibson v. Mayor of Preston [3] there remained, I think, a fifth step which need not necessarily have been taken but which was in fact taken. Although negligence was mentioned in the declaration in M'Kinnon v. Penson [4] nothing was, I think, decided except that there was no duty to repair enforceable by action. By this time it had become a common form of statutory enactment to provide that an authority should have the "care and management" or "care and control" or "control and management" of its highways. Now a duty to repair enforceable by action for damages for omission to repair is one thing. A duty to exercise care in control and management enforceable by action for damages for negligent omission to remove a danger known to exist is another thing. The first rule, which I regard as having been established by the first four steps, does not of itself exclude liability for negligence in control and management. Negligence can be a characteristic of an omission as well as of an act, and the first rule, as I have stated it, is quite consistent with the existence of a duty to take reasonable care that a highway shall be in a reasonably safe condition. Taking the facts of the present case as a starting point, let it be supposed that the defendant knew of the existence of the chasm, fourteen feet across, interrupting its road, that it did nothing either by way of warning or by way of repair, and that a night or two later another lorry crashed into the chasm with similar consequences. It would clearly be open to a jury to find that there had been negligence in the "management and control" of the highway. A plaintiff need not allege a duty to keep in repair: he could allege a duty to exercise reasonable care in the management and control of the highway. Or suppose, going back to the accident which is the subject of the present case, that any reasonable inspection of the embankment at the place of the accident would have disclosed a dangerous condition of the road for some time before the accident, and that the defendant made inspections but failed to discover the dangerous condition, or, having discovered it, decided, with full knowledge of the probable consequences, to do nothing. Would it be possible in either case for a person in the position of the plaintiff in the present case, or the widow of the driver of the lorry, to recover damages from the defendant?

[45]

Both these questions must, in my opinion, be answered in the negative on the basis of the law as it has stood since 1890. It is, I think, very curious that this is so. It is to be remembered that the law of negligence was undergoing considerable development in the last quarter of the last century. Heaven v. Pender [1] was decided in 1883. Before 1890 support for an affirmative answer, at least in the former of the two supposed cases, would have been found in Borough of Bathurst v. Macpherson [2] . This case might have been thought in effect to have preferred Hartnall v. Ryde Commissioners [3] to Parsons v. Vestry of St. Matthew, Bethnal Green [1] . But in 1890 the Privy Council decided the case of Sanitary Commissioners of Gibraltar v. Orfila [2] . The Sanitary Commissioners, despite their somewhat misleading name, were an incorporated highway authority. They were sued for negligence in the management and control of a road, which wound round the side of a mountain, and which had collapsed after heavy rain, doing serious damage to a property lying below the road. At the trial of the action negligence was found against them. The Judicial Committee was of opinion that there was no evidence of negligence, but the actual ground of the decision against the plaintiff was that, as there was no misfeasance, they would not be liable even if there were negligence in management and control. When the House of Lords decided Cowley v. Newmarket Local Board [3] in which again negligence in management and control was alleged, the two highest tribunals seem to have finally clinched the matter, although the Privy Council was called upon to decide substantially the same point in Municipality of Pictou v. Geldert [4] and Municipal Council of Sydney v. Bourke [5] . By 1895 it seems to have been beyond question that a highway authority, if it did anything, must do it carefully, but, if it did nothing, could be indifferent to the consequences of its inaction. The theorem that there was no duty to repair enforceable by action acquired a corollary. There was no duty enforceable by action to be careful in control and management. It is only in such circumstances as are described by Dixon J., in Buckle v. Bayswater Road Board [6] that a highway authority can be made liable. Dixon J. said [7] : "While a road authority owes to the members of the public using a highway no duty to undertake active measures whether of maintenance, repair, construction or lighting in order to safeguard them from its condition, on the other hand it possesses no immunity from liability for civil wrong." If it does exercise its powers, it must exercise them with reasonable care. If it constructs a road negligently or repairs a road negligently, it will be liable to one who suffers damage through its negligence. If it was "the active agent in causing an unnecessary danger in the highway," it will be liable to one who suffers damage through that danger. These things are, as it is said, misfeasance.

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Before

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Judgment (59 paragraphs)

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