The appellants are, therefore, in my opinion, entitled in law to a new trial, which might, however, be limited to a reassessment of damages. But it would be much to be regretted that the expense of a third trial should be inflicted upon the parties if it can be avoided. The defendants, at best, would obtain a reduction of damages and escape payment of the costs of the new trial motion. On the other hand, they might have to pay their own costs of this appeal and the plaintiff's costs of the reassessment of damages. Such a position would be eminently one for amicable settlement. But, as I understand that two members of the Bench are of opinion that the summing-up of the learned Chief Justice on this point was right, so that the Court is equally divided, the decision of the Supreme Court will stand, and the appeal must be dismissed.

I have had the advantage of reading the judgment just delivered, and I agree with it. As it appears to me to cover the ground completely I refrain from adding anything.

Several questions have been argued, but none of them presents serious difficulty.

The jury found a general verdict for the plaintiff which on the Judge's charge means: (a) that the defendants were negligent both as to the original construction of the drain through plaintiff's property and as to its maintenance; (b) that this neglect occasioned a nuisance arising from the ordinary storm water remaining on the plaintiff's land by reason of the defendants' negligence; (c) that the plaintiff had not occasioned or contributed to the nuisance by stopping up the drain or otherwise.

It was contended by the defendants (appellants) that there was no evidence to sustain these findings, or that the verdict was against the weight of evidence. It is sufficient to say, there was abundant evidence upon which a jury could reasonably find its verdict, in respect of all those questions.

Another point taken was that the jury were told that they might give aggravated damages for the sewage that was sent on to the land by private owners. In this connection it was complained that evidence had been admitted as to the sewage being allowed to pass from private residences into other public drains and channels and thence into the defendants' drain upon the plaintiff's land. When, however, the whole of the charge is looked at, it is evident that the jury were told in effect (1) that they could not find any cause of action against the defendants by reason only of the sewage in question being allowed to enter the public channels and so passing on to the land of the plaintiff, and (2) that they might give aggravated - that is, additional - damages for the contaminated condition of the storm water beyond that which they would have given if the storm water had not in fact been so contaminated. Both directions were right. As to the first: unless the private owners had been "permitted," that is, authorized expressly or impliedly, by the Council to pour sewage into the drain, so as to make the Council a participant in the act, the Council would not be liable for the mere fact that the sewage passed to the plaintiff's land (Malzy v. Eichholz[6]). As to the second: while the passage of the unauthorized sewage would not per se give a cause of action against the Council, it is quite a different matter where the cause of action already exists by reason of the Council negligently leaving storm water on the plaintiff's land so as to be a continuing nuisance and with full knowledge that it has been rendered foul, and is day after day over a substantial period of time being rendered foul, by persons pouring sewage into the drain. The water so remaining, whether contaminated or not, should have been removed by the Council. They knew, or ought to have known, of its filthy condition, and still left it. This entirely distinguishes the case from Attorney-General v. Dorking Union[7]. They are, in our opinion, responsible for the damage naturally resulting from leaving their own faultily constructed and improperly maintained drain in the state in which it was to their actual knowledge. The quantity and concentration of filth-impregnated storm water on the plaintiff's land was manifestly greater than would have been the case had the Council been altogether inactive in relation to the drain. That is not mere non-feasance. (See McClelland v. Manchester Corporation[8]). In our opinion the position as to this is simple, and does not call for any extended examination of authorities.

A further objection was made that the jury were told they could take into account the way the Council acted. It must be remembered that the summing-up of a Judge must always be taken with reference to the circumstances of the case and to the evidence (Lambkin v. South Eastern Railway Co.[9]). Assuming without deciding (see Mayne on Damages, 8th ed., p. 52) that, if nothing but mere negligence affecting property were charged, that would be sound, it must be remembered here that there is something more than mere negligence proved; it is negligence resulting in a continuing nuisance, which the Council must have known was occasioned and renewed daily for some time. The distinction between mere negligence and nuisance, however arising, is illustrated by Pwllbach Colliery Co. v. Woodman[10]. That, the jury may have thought, indicated some disregard of the comfort and even health of the plaintiff - which affects the person as distinguished from the property of the plaintiff - in not using the powers which the Council undoubtedly possessed of repressing the evil. (See Mayne on Damages, pp. 51 to 53).

Still a further objection was urged, namely, that evidence was admitted as to the condition of the premises after the date of the writ. This is answered by the note of the Chief Justice at the trial as to the basis in which this evidence was admitted[11].

As to the amount of damages: the plaintiff, if her evidence is true, and of this the jury were the proper judges, was seriously affected in health, greatly discommoded, and sustained some deterioration in the value of her property. The damages are liberal, no doubt, but not so extravagant as to come within the power of a Court to declare them excessive.

On the whole we are glad to be able to come to the conclusion that consistently with adherence to legal principles the ruinous disaster of a third trial is not imperative, and that, in our opinion, the appeal should be dismissed with costs.

With regard to costs, the Court is of opinion that where the Justices are equally divided in opinion the rule that costs should follow the event should, in general, be followed rather than the conventional rule adopted by the House of Lords that in such a case there should be no costs.

[2] [1914] HCA 7; 17 C.L.R., 524.

[4] [1852] EngR 242; 7 Ex., 407.

[5] [1904] HCA 54; 1 C.L.R., 470.

[8] (1912) 1 K.B., 118, at p. 133.

[10] (1915) A.C., 634, at p. 638.

[11] 16 S.R. (N.S.W.), 146, at p. 149.