Municipal Tramways Trust v Stephens [1912] HCA 46

the road authority shall direct, and to its satisfaction, so much of any road

June 4, 5, 6. < ae , é whereon any tramway belonging to the T'rust is laid as lies between the rails

Mernournr, of the tramway . . . and so much of the road as extends 18 inches beyond June 21, the rails on each side of such tramway." Griffith ©.3., Held, by Grifith C.J. and Barton J. (Isaacs J. dissenting), that the section Barton and A Pes ", . eee . rn imposes a positive duty on the Trust to keep in good condition and repair so

much of the roadway as is mentioned in the section, notwithstanding that no direction has been given by the road authority to do the work or as to the materials with or the manner in which the work was to be done, and that an action by a member of the public lies against the Trust for injuries caused by a breach of that positive duty.

Held, also, by the Court (Isaacs J. doubting whether there is any liability - for non-feasance), that the Trust was liable for a non-repair amounting to a breach of the statutory duty.

Decision of the Supreme Court of South Australia: Municipal Tramways Trust v. Stephens, (1911) 8.A.L.R., 40, affirmed.

An action was brought in the Local Court of Adelaide, South #. Australia, by Arthur Stephens against the Municipal 'Tramways

Trust claiming damages for injuries received by him in conse- ytuxrorpan

quence of the alleged wrongful omission and neglect of the 7 defendants to keep in good condition and repair so much of a road on which a tramway of the defendants was laid as lay between the rails of the tramway and so much of the road as extended 18 inches beyond the rails on each side of the tramway.

The action was heard before Way C.J.,and a jury and the jury found a verdict for the plaintiff. An order nisi obtained by the defendants for a new trial was discharged by the Full Court: Municipal Tramways Trust v. Stephens (1).

From this decision the defendants now appealed to the High Court.

The facts are sufficiently stated in the judgments hereunder.

O'Halloran and Cleland, for the appellants. The appellants are not liable for non-feasance within the principle laid down in Russell v. The Men of Devon (2). They ave a public corporation representing public interests or they are agents of the inhabitants charged in law with the duty of repairing a portion of the high- way. Though they are not an independent road authority they are a road authority in the sense of having a subordinate control over a certain portion of the highway. See Dublin United Tramways Co. Ltd. v. Fitegerald (3). 'The duty of the appellants under sec. 54 of the Municipal Tramways Trust Act 1906 is either a duty transferred from the road authority or is a new duty to carry out which the new body was created. Such transfer or new creation did not make the new body liable for non-feasance. The inten- tion to impose a liability for non-feasance must be clearly expressed. From the nature of their constitution the appellants are not liable for non-feasance. There is no right of action in an individual member of the public because the duty is owed to the road authority and the public at large and not to individuals or classes of individuals: Alldred v. West Metropolitan Tramway

Co. (4); Robinson v. Workington Corporation (5). The language

(1) (1911) S.A.L.R., 40. (4) (1891) 2K.B., 398, (2) 2T.R., 667. (5) (1897) 1 Q.B., 619. (3) (1903) A.C., 99, at pp. 103, 105.

of the Statute might have been sufficient to impose a liability a private corporation but is not sufficient to impose it on a pul corporation: Municipal Cowneil of Sydney v. Bourke (1). person has a right of action in respect of a neglect of a pul statutory duty unless either he is one of a class intended to benefited by the Statute, and then only if he suffers specia damage, or the Statute has used language indicating an inten to confer upon him a right of action.

only that the ante of the road 'anthoeiey to repair the could be more conveniently performed. The duty of the ro authority being discretionary, that of the appellants is also d cretionary. If there is any duty to a member of the public does not arise until a direction has been given by the ro authority, and none was given in this case. 'The legislature | substituted the opinion of the road authority for that of a re: able man as the standard of reasonable repair. A special ret has been created by sec. 100 for a breach of the Act by the app lants, and therefore this action will not lie. They also refer to Barnett v. Poplar Corporation (2); Brocklehurst v. Manches Bury, Rochdale, and Oldham Steam Tramways Co. (3); Cowl v. Newmarket Local Board (4); Young y. Davis (5); Clegg, Parkinson & Co. v. Eurby Gas Oo. (6); Johnston and Toronto Type Foundry Co. v. Consumers' Gas Co. of Toronto (7); R. Garrett (8); R. v. Croydon and Norwood Tramways Co. ( Sanitary Commissioners of Gibraltar v. Ovfila (10).

Puris Nesbit K.C. and F. Villeneuve-Smith, for the respon- dent. [They were heard only as to the question of the effect of the words "in such manner as the road authority shall direet and to its satisfaction" in sec. 54]. The fact that the authority has given no direction or expressed no dissatisfaction

(1) (1895) A.C., 433. (6) (1896) 1 Q.B., 592. (2) (1901) 2K.B,, 319. (7) (1808), A.C. 447. (3) 17Q.B.D., 119. (8) 73 J.P.

will not relieve the appellants of liability for failure to keep in H.C. or A. repair: American and English Encyclopedia of Law,2nd ed. 191% yol. 27, p. 96; Doyle v. New York Railway Co. (1); Simon Aes v. Metropolitan Street Railway Co. (2). Sec. 54 imposes on the Tease appellants an absolute duty to keep in good condition the par- %. ticular part of the road: Howitt v. Nottingham and District Ss Tramways Co. (3); North-Eastern Railway Co. v. Wanless (4).

[Isaacs J. referred to Morris v. Canterbury Tramway Co. Tid. (5).

Grirritx C.J. referred to Hertfordshire County Council v. Great Eastern Railway Co. (6).]

Apart from sec. 54 there would be a right of action in the respondent at common law, and sec. 54 has not taken away that right: Oliver vy. North Eastern Railway Co. (7); Craies on Statutes, p. 305; Maawell on Stututes, 4th ed. p. 544; Beale on Legal Interpretation, p. 317.

Cleland, in reply. As to the American cases municipal authorities in America are held to be liable for all injuries arising from defective highways: American and English Encyclopedia of Law, 2nd ed., vol. 15, p. 420. He also referred to Morris v. Canterbury Tramway Co, Ltd. (5); Oliver v. North Eastern Railway Co. (7); Brice on Tramways and Light Railways, p. 60. [Isaacs J. referred to Bristol Trams and Carriage Co. Ltd. vy. Bristol Corporation (8); Mayor &e. of Norwich v. Norwich Electric Tramways Co. (9).]

GrirritH C.J. This was an action for damages for breach of - June*!- an alleged statutory duty to keep in good condition and repair a part of a highway on which the appellants' rails are laid, by reason whereof a spring dray which the plaintiff was driving along the road was upset and the plaintiff was injured. The

(1) 58 N.Y. App. Div., 588. (6) (1909) 2 K.B., 403. (2) 29 Mise. (N.Y.), 126. (7) LK. 9Q.B., 409. (3) 12.Q.B.D., 16, (8) 25 Q.B.D., 427. (4) L.R.7 HLL., 12, at p. 15. (9) 99 L.T., 133.

particular default complained of was that the macadamized sur- face of the road had been displaced or worn down at the side of one of the rails, which consequently projected to a height variously estimated at from two to six inches. The case was tried before Way C.J. with a jury, who found that "the tramways' und taking" at the place in question "was not maintained in good condition and repair at the time of the accident and for at le ' six weeks previously, that this state of non-repair allowing the rails to project was the cause of the accident." Judgment was given for the plaintiff, and the Supreme Court discharged a rule nisi to enter judgment for defendants or for a new trial. The appeal is from this decision.

Various grounds were taken for the appellants, with which will deal in order, but I will first refer to the provisions of the Statute under which the defendants are constituted. i

The Municipal Tramways Trust Act 1906 (No. 913) consti- tuted a Trust called the Municipal Tramways Trust, consisting of eight members, of whom two were to be appointed by the Governor in Council, and the others elected by certain specified municipal authorities having control of roads in the area of the operations of the Trust. a

The Trust was required to take over certain existing tramways, - and within three years from 31st December 1906 to construct a system of tramways worked by electric power from the city of Adelaide to terminal points in eleven specified localities, and the - exclusive right to construct and work such tramways within a radius of ten miles from the General Post Office was conferred - upon it. The necessary funds were to be advanced by the Government, and elaborate provisions were made for repayment of the advances.

For the purposes of the Act the Trust was empowered by sec. 53 (inter alia) (1) to break up and open the surface of any street; (12) to carry on the business of tramway proprietors and of generators of electric power or light and to sell electric power or light, but only to the Government; (13) for the purpose of - stimulating or developing the traflic of any tram system to carry on the business of omnibus proprietors ; (14) for the like pur- pose to establish or keep and maintain, and to rent, let, lease, buy,

sell, or grant licenses in respect of public parks, gardens, H.C. or A.

restaurants, rest-houses or places of entertainment to which pas- sengers might conveniently resort. So much, as to the constitu- tion and powers of the appellants. It is obvious from what I have said that the appellants, although in one sense a municipal corporation, are a trading corporation, and come within the prin- ciples laid down in the case of Mersey Docks Trustees v. Gibbs (1).

Before referring to the provisions of the Act imposing positive duties upon the Trust I will say a few words on the general rule of law as to the obligations of such public bodies. That rule is concisely stated by Fletcher Moulton LJ. in Hertfordshire County Council v. Great Eastern Railway Co. (2): - "The law

as settled by the cases of R. v. Inhubitunts of Kent (3); R. v.

Inhabitants of the Parts of Lindsey (4); R. v. Kerrison (5), and R. v. Inhabitants of the Isle of Ely (6), practically amounts to this: that, where persons, acting under statutory authority, for their own purposes interrupt a highway by some work which

_ renders it impossible for the public to use it, an obligation is

primd facie imposed upon them to construct such works as may be necessary to restore to the public the use of the highway so interrupted, and that the obligation so imposed is of a continuing nature, involving not only the construction of such works, but also their maintenance. In order to rebut the presumption that such an obligation is imposed upon them, such persons must show that the Statute under the authority of which they were acting contains some provision amounting to an exemption from such an obligation. It is not enough, in my opinion, that the Statute is silent on the point."

Another instance in which that rule had been applied is afforded by the case of Oliver v. North Eastern Railway Co. (7) in which the defendants were held responsible for their neglect to keep the surface of the roadway at a level crossing up to the level of the rails - which is exactly the complaint in the present case. '

It is also a general and well known rule that a statutory power

(1) L.R. 1 B.L., 93. (5) 3M. & S., 526. (2) (1909) 2 K.B., 403, at p. 412. (6) 15 Q.B., 827. (3) 13 East, 220. (7) L.R. 9 Q.B., 409.

to execute work does not authorize the creating of a nui except so far as the creation of the nuisance is expressly authorized or necessarily incidental to the execution of the powers. It is on the latter ground that a distinction has so mn times been made in favour of railway authorities.

These considerations indicate the attitude of mind in which express provisions of the Act as to the duties of the Trust are be approached,

Sec. 54 provides that the Trust "shall, at its own expense, a all times, keep in good condition and repair, with such materials and in such manner as the road authority shall direct and to

belonging to the Trust is laid as lies between the rails of tramway . . . " and "(3) So much of the road as extends inches beyond the rails on each side of any such tramway." In my judgment this section at once imposes and defines extent of the duty of the Trust with respect to the repair roads, and supersedes the obligation which would otherwise have arisen at common law. So far from diminishing that obligati it extends it in two directions - first, in point of area which is no longer limited to the soil immediately adjoining the rails, and, secondly, in requiring them in the performance of their duty to obey the directions of the road authority. It is primd facie improbable that the obligation imposed by common law would either abrogated or reduced, and very clear words would required to express that intention. ¢ The appellants, however, contend that under this section no obligation to repair arises until the road authority has giv specific directions on the subject, and that as none appeared to have been given in this case no breach of duty was shown, section is a transcript of the first part of sec. 28 of the Engl Tramways Act 1870, which is printed with commas after words "repair" " direct" and "satisfaction." In the South Aus- tralian Act the comma after "direct" is omitted. But, as we had occasion to point out in a recent Victorian case (1), it is not s to rely on punctuation. I think, however, that as a matter of - grammatical construction the words " with such materials and in (1) See President, dc., of the Shire of Charlton v. Ruse, 14 C.L.R., p- 220. - [ED.]

such manner as the road authority shall direct and to its satis- H.C. or A.

faction " are parenthetical, in the sense that they do not diminish

the effect of the positive words "shall at its own expense at all ypexzorpan

times keep in good condition and repair " - at all events in the 7 absence of any express direction or expression of satisfaction - but that, as already said, they impose a further obligation, namely,

that in the discharge of their own positive duty they are to obey Sritith 0.3.

the directions of the road authority in matters of detail. To hold otherwise would, in the words of Lord Halsbury quoted by Way CJ., be to confuse the mode in which the obligation is to be performed with the obligation itself: Dublin United Tramways Oo. v. Fitzgerald (1). The question whether a compliance with the positive directions of the road authority would excuse the Trust, if after such compliance the road was left in a state of dangerous disrepair, is an interesting one, and may some day afford some difficulty. In the United States it appears to have been answered in the negative, and I am not aware that any Court has ever answered in the affirmative. But it does not arise in this case, and I express no opinion upon it.

The contention that the Trust are under no obligation to keep the specified part of the road in a safe condition until they have

received special directions from the road authority as to the

materials and manner of repair seems to me not only unsupported by authority but inconsistent with common sense. I should suppose that in the absence of specific directions a general direc- tion should be inferred that the materials and manner were to be the same as those of and in which the adjacent portions of the roadway were constructed. Thus if the road is made of wood blocks the repair is to be with wood blocks, if of granite setts with granite setts, and if of macadam with macadam, and so on. At any rate after the lapse of years, during which, as in this case, repairs have been executed in that manner, such a direction should be inferred. Mr. Cleland, indeed, did not dispute so obvious a conclusion. But he contended that there must, in addition to the standing directions as to materials and manner, be a special direction in each case to make the repair. This would involve a constant daily inspection of tramrails by the road

authority. It is well known that the constant inspection railways and tramways is an imperative necessity if they are be kept in a condition of safety. The suggestion that in addit to the duty of constant inspection which is necessarily cast up the Trust, a similar duty should also be cast upon the authority seems to me, with all respect, almost grotesque, esp cially when I remember that the most constant damage whi occurs from tramways laid upon macadamised roads arises from the wearing down of the surface adjoining the rails. If exp directions are wanted in any case it is for the tramway authority to ask for them.

The views which I have just expressed are supported by set 55, which provides that when the road authority forms any portion of the road which the Trust "is not hereby required to repair" with any other material than macadam the Trust "shall, as and when required by the road authority," and at its ow expense, form with such material and maintain and keep in good | condition and repair to the satisfaction of the road authority so much of the road as by the Act is directed to be kept in g condition and repair. As pointed out by the learned CWJ., see. 54 does not, as does sec. 55, say that the duty is to be dischar; "as and when" directed. The latter section tacitly assumes, only that when the surface is of macadam it is to be repait with macadam, but also that the Trust is to discharge the ordin: duty of maintaining and keeping in good repair without any - special direction.

It is further suggested that the Trust have no right to repair g without express direction, but this contention is answered by the words of the first of the powers which I have quoted, and also by _ see, 56, which requires the Trust "except in cases of emergency" to give three days' notice to the road authority before breaking up a road. If the filling up of a dangerous hole adjoining the - tram rail is not an emergency, I do not understand the meaning - of the word.

The contrary construction would lead to extraordinary conse- quences. If when directions are given by the road authority - eg. to repair with granite setts instead of macadam - the tram- - way authority objects to the directed mode of execution of the

work, the question would under sec. 65 have to be settled by an engineer or other fit person appointed by the parties, and in the meantime the obligation to repair would be suspended, and persons using the road would be unprotected: R. v. Garrett (1). It is impossible that any suchr result could have been intended by the legislature.

In my opinion the most favourable view that can be taken of the effect of the command to obey the directions of the road authority contained in sec. 54 is that a compliance with express directions may be - I do not suggest that it is - an excuse for what would otherwise be a breach of duty. But in that view such express direction should, in my opinion, be alleged and proved by the Trust. The contention that such directions are to be assumed to have been given when a dangerous hole in the highway has been left unfilled for six weeks is not complimentary either to the road authority or to the common sense of the tribunal to which the argument is addressed.

In my opinion, therefore, sec. 54 imposed a positive duty upon the appellants for breach of which they are liable unless some other defence can be set up. This view is consistent with all the cases that have been cited, and indeed, as I understand these cases, was taken for granted by both bench and bar. I agree

_with the learned Chief Justice in thinking that the omission from the Act of an enactment such as that contained in see. 55 of the English Tramways Act 1870 to the effect that the tramway authority shall be answerable for all damage happening through their act or default by reason of any of their works or carriages is immaterial. I doubt, indeed, whether the present case would fall within such words.

The appellants further claim the benefit of the rule that high- way authorities are in general not liable for non-feasance. The nature of that rule and the reasons for it are clearly stated in the cases of Cowley v. Newmarket Local Board (2) and Municipal Council of Sydney v. Bourke (3). It is founded, not upon the nature of the act to be done, but upon the character of the

The appellants put this argument in different ways. say, first, that they are in effect a highway authority quoad In one sense, perhaps, they are. And if so, as was pointed ou Municipal Council of Sydney v. Bourke (1), if there is a duty i can only be because it has been imposed by the legislature, I find the imposition of the duty in sec. 54 Default in perfo ance of a positive statutory duty is none the less acti because it may be called in one sense non-feasance. It is no every act of omission that can properly be deseribed by that te

Another way in which the argument was put was that municipal authority for the district still remained the high authority, and that see. 54 only prescribes a new and cony way for the discharge of their duty, so that, in effect, the in repairing the portion of the road which in the words of the "Trust is required to repair" is only acting as agent for the road authority, and has no statutory duty in the ordinary sense of the term.

In my opinion the obligation imposed by sec. 54 is part of

the legislature. Such statutory bargains are always consti most favourably to the public.

It was also contended that since the Act prescribed a p not exceeding £50 for any contravention of its provisions action will not lie at the suit of a person specially aggrieved. such cases regard must be had, as pointed out by Lord Cairns in Atkinson v. Newcastle Waterworks Co. (2) to the general s of the Act, and the nature of the statutory duty. Applying | test, I think it is clear that the ordinary rule of common law was not intended to be excluded.

In my opinion, therefore, all the defences fail, and the appea must be dismissed. :

Barron J. In the first instance it is well to point out the

defined by the Municipal Corporations Act 1890, sec. 125, wh gives these bodies permission to do any work of the kind "

liability here for what is called a non-feasance. But if a muni- cipality having the sole control of a road took it upon itself to create by its direct action an obstruction or nuisance in the high- way - for example, by laying a line of rails so as to project dangerously above the surface of the road, then it would be liable to an action at the suit of anyone who suffered special damage by reason of the nuisance, unless it were expressly empowered to do that very thing or something which involved the doing of it.

That was the position before the passage of the Municipal Tramways Trust Act 1906.

The position of bodies or individuals which, unlike road authorities, are empowered by Statute to execute works for their

_ own profit and benefit is ascertained by numerous decisions.

In R. vy. Kerrison (1), certain persons and their successors, 'appointed Commissioners for making the river Waveney navigable between certain points, were empowered by Statute to do that 'work, and to cut the soil of any persons for making any new channel, &c. Under this power and for their own profit and

benefit they duly cut a channel, in the making of which they cut through a highway and rendered it impassable. Over the cut they built a bridge, over which the public using the highway 'passed from each side. This bridge had been from time to time repaired by the proprietors of the navigation. It was held that _ the proprietors, and not the county, on which they sought to throw the burden, were liable to indictment for non-repair of the bridge. The liability to repair was a condition on which the proprietors of the navigation had been granted the right to inter- fere with the highway.

The decision in this case rested on a number of authorities, among which may be mentioned he King v. The County of Kent (2) and The King v. The Parts of Lindsey (3). Later, in The King v. The Inhabitunts of the Isle of Ely (4), a similar case, in which Patteson J., for the Court of King's Bench, delivered a very learned judgment, the previous authorities were reviewed, and those I have mentioned were followed. The learned Judge

(1) 3M. &S., 526. (3) 14 East, 317. (2) 13 East, 220. (4) 15 Q.B., 827.

they shall think proper and necessary." Clearly there is no H.-C. or A.

H.C. or A. said (1): - *It appears to us that, when the Adventurers first cut 191% the drain, and interrupted the public highway, that act, howe authorized by commissions of sewers or other power vested

Monicrpau Tramways them, was done for their own use, benefit and convenience, a

Ee eouldebe legal only on the condition of substituting anoth a highway, which could be only by a bridge as convenient for Barton). public as the old one; that the public were in truth no gainers by the change ; they were by this hypothesis merely placed in same position as before ; and that the condition which was ne a sary to legalize the first cutting of the drain was and is a con tinuing one: the instant it is broken, the indefeasible rights

the public revive, and the cut becomes a nuisance."

The cases followed, as it was observed, rested, as did this on the principle that the authority to do the act of interference is conditional only, equally whether the condition be expressed or implied. (In R. v. Inhabitants of Kent (2), already men tioned, the condition was expressed: in R. y. Inhabitants of the Parts of Lindsey (3), it was implied by the Court). The condi tion in either case continues so long as the public right is inter-

fered with. on The principle of these cases is reaflirmed in that of Hertford- shire County Council v. Great Eastern Railway Company (4), not only in the passage cited during the argument from the judgment of Fletcher Moulton LJ. (5), but also by Lord Alver- stone C.J. (6), in these words : - "In those and many other cases - the broad principle has been adopted that, where persons, acting - under statutory authority, for their own benefit interfere with some existing public convenience, such as a highway or a ford, and are by the Statute bound to provide some substitute for the convenience so interfered with, such persons, although there is no express provision in the Statute to that effect, are, neverthe less, under the further obligation of keeping the substituted con- venience in repair, as for instance in the case of the structure of a bridge erected in substitution for a public ford." : It was contended that the principle extended only to establii

(1) 15 Q.B.D., 827, ab p. 844. (4) (1909) 2 K.B., 403. (2) 13 Bast, 220. (5) (1909) 2 K.B., 403, at p. 412, (3) 14 East, 317. (6) (1909) 2 K.B., 403, at p. 409.

the liability of corporations or individuals to indictment in such cireumstances, But that this is not so is established by the case of Oliver v. North Eastern Railway Co. (1), where a rail- way company had constructed their Jine across a highway on a level under the sanction of an Act of Parliament. he plaintiff was driving along the highway, and where the railway crossed it, the hind wheels of his dog-cart were caught in the rails by reason of their being too high above the level of the road, and the vehicle was torn in two. It was argued for the company that, they having laid down the rails, it was the duty of the surveyor of highways to see that the roadway was kept up to the level of the rails, and if this were not done the company was not responsible. This contention did not prevail; the plaintiff held the verdict he had obtained at the trial for the damage to his vehicle. Cockburn C.J. said (2) : - *the principle of the case of R. v. Kerrison (3), and the other cases cited, clearly applies to

• this case"; and Blackiwrn J. said (4) : - "In RB. v. Kerrison (3)

it was held that where persons were authorized by Statute to create what would otherwise amount to an indictable nuisance, such as making cuts across a highway, they were bound without any express enactment to put and keep up for the public a proper substitute for the old way, such as a bridge. The prin- ciple of that case is expressly in point."

It is convenient now to inquire whether the Tramways Trust is a body of the class of those held liable in the line of cases to which R. v. Kerrison (3) belongs. That is to say, does it exer- cise its statutory powers for benefit and profit to itself? The Treasurer is authorized to advance, and no doubt has advanced, the funds requisite for purposes of purchase, construction and maintenance, which advances the Trust is to repay in manner prescribed by the Act. Its revenues consist wholly or mainly of the charges made to the public for the use of the tramcears; by see. 53 (12), (13) and (14) it may carry on, as it is doing, the business of tramway proprietors, and of dealers in electric power or light (selling power and light, however, only to: the Govern-

ment); and the business of omnibus proprietors; and may estab-

(1) L.R. 9 Q.B., 409. (3) 3M (2) L.R. 9Q.B., 409, at p. 411. . (4) L.R.

lish or maintain, and let, or buy or sell, or grant licences certain kinds of places of recreation and refreshment for th of passengers, &. It seems to me to be clear that the carries on its authorized operations as a business and for pi and this is no less true whatever the ultimate destination of profits may be. See Mersey Docks Trustees v. Gibbs (1). It is in my judgment a body under the same duty as the Navigati Company, the Conservators of the General Level of the Fens, t Railway Companies, &., whose liability has been established the cases cited. That, I mean, would be the duty of the in the absence from the Statute of any provision express] imposing it. There is, however, express provision in the Act. See. 54 is in the same terms as sec. 28 of the English Tramways Act 1870. At the outset of the endeavour to arrive at the full meaning o such a provision, the question is not whether a new liability imposed where none existed before, but whether a previo existing right has been abrogated without an equivalent b given to the public as individuals. And where the learned Chi Justice of South Australia spoke of a right being or not b "taken away" he used, I think, an accurate expression. approaches the consideration of sec. 54 and its context with t duty to discover whether this right has in truth been taken away or whether an equivalent for it stands in the Statute. And ther is an important consequence of this position, namely, that when the question is whether a right has been taken away from the public, clear words are necessary to justify an answer in the affirmative. If the words are doubtful or ambiguous the con- struction against the right will not be adopted. But so far from the words themselves being clearly itil ie such a right I think they affirm it - indeed, they extend it, since the Trust has a duty laid upon it as to a larger width of the road than it would have to keep in order under the duty implied as continuing condition of its statutory powers, for the imp! duty would be only as to so much of the road as might be affected by its works, eg. by the rails projecting above th surface dangerously. But this greater width it is to "keep in

good condition and repair" and "at all times." Those words are H.C. or A.

if taken by themselves an affirmance of the pre-existing duty. But it is said that the words which follow, "with such materials and in such manner as the road authority shall direct and to its satisfaction," give the section quite a different standpoint. With- out laying much stress on the direction as to manner and material in this particular part of his argument, the appellant contends that as the work of keeping in good condition and repair must be done to the satisfaction of the road authority, it is to that authority and not to the public that it owes its duty. I am of opinion that the direct force of the words "shall, at its own expense, at all times keep in good condition and repair" is not to be got rid of in that fashion. The whole section appears to me to be the expression of a special form of the duty that would otherwise arise by implication, and I do not think that the legis- Jature has done such a strange thing as to bar that implication without leaving in its place some defined right to the public to have their highway kept as it was before the Trust was author- ized by Statute "to create what would otherwise amount to an indictable nuisance," namely, the breaking up of the road and the laying of rails on its broken surface.

Authority supports the view that a duty to the public remains. The question in Howitt v. Nottingham and District Tramways @o. Ltd. (1), was upon sec. 2 of the English Tramways Act 1870, which corresponds with sec. 54, and upon sec. 29 of the English Act, corresponding with sec. 61, of the appellants' Act. That decision was approved by the Court of Appeal in Alldred v. West Metropolitan Trams Co. (2). In Barnett v. Poplar Cor- poration (3), those cases were followed. There a tramway com- pany had made a contract with the defendants, a road authority, under sec. 29 by which that authority had undertaken the repair of the portion of the road which, under sec. 28, the tramway company were bound to repair. The plaintiff was driving along the highway when his van struck against a rail of the company's tramway, projecting above the level of the street, owing to failure on the part of the defendants to keep the street in proper repair,

(1) 12Q.B.D., 16. (2) (1891) 2.Q.B., 398. (3) (1901) 2 K.B., 319.

as they had agreed with the tramway company to do. It was held that the liability for injuries caused to persons using the road for non-repair of this part of it had been transferred to th road authority. If there had been no duty of the company to the individual under the section there would have been no liability to be passed on to the road authority. But the case of Dublin United Tramways Co. v. Fitzgerald (1), is conclusive as to 'this. argument. It is clear then that a duty to the individual exists since the enactment of sec. 54. Of course there is also a duty to the road authority to obey its directions as to manner and material and to repair to its satisfaction. But that does not relieve the Trust of its duty and resultant liability to the people using the highway. '

But, it is further urged, "If there is any duty to the publi on our part, it does not arise until we receive a direction from the road authority," Pressed on this, the appellants' counsel admitted that in sustaining their proposition they would have to go to the length of contending that they were entitled to leav the prescribed portion of the road in even dangerous disrepair for" months or years until a direction came from the road authority though in the meantime frequent injury to persons and vehicles, and even death, might occur by reason of the disrepair. That the proposition necessitated such a monstrous contention was not thi fault of counsel who had to maintain it. But the necessity is - enough to show that the proposition itself is utterly untenable." It is possible that the Trust might have protected itself in this" case had it, before the accident, repaired the road by the direction, as to manner and material, and to the satisfaction, of the road - authority, although the repairs might have been in fact utterly insufficient to prevent the accident, I say that might have been so - without saying that it would. But to maintain that in the - absence of such a direction, or of any effort to obtain it, and in . the absence of anything to show satisfaction on the part of the road authority; the appellants are immune as if all these things" had been pleaded and proved, is to suspect the tribunal of. boundless simplicity. ae

What, then, is a reasonable construction of sec, 54 in 'this z

regard? The part of the road described is to be kept in repair H. ©. or A.

"at all times " - not merely after such intervals as may elapse between infrequent and casual visits of an inspector of the road authority. If the tramway officials are without a visit from such an inspector, they must still keep it in repair at all times ; which, I will for a moment suppose, means " at all times possible within reason." They must not risk accidents by leaving the road in a dangerous state. If a direction is necessary, or if they want one, they should ask for it. They must not wait for it till disaster happens. Not only do the words "at all times" suggest this meaning, but there is more. The Trust has power, for the pur- poses of the Act, to break up, open; and alter the surface of any road (see. 53 (1) ), or temporarily stop traffic upon any road (2); in cases of emergency (and was not this such a case ?) they are "as soon as possible after the work has been begun, or the neces- sity for the same has arisen," to give notice to the road authority, ie. that they are opening or breaking up any road or stopping any traffic (see. 57). I say "are opening," &c., and not "are about to open," &c., because the notice contemplated in this sec- tion is one that may have to be given after the repair or other work has been begun - a very different thing from three days' notice under sec. 56. These two sections show that repairs can and should be begun, in some cases at once, in other cases after as little as three days' notice, according to urgency. This goes far to explain the words "at all times" in sec. 54, and to show the appellant is not to wait for directions, but must obtain them when he needs or wants them - if he can. But, indeed, if a direc- tion of the road authority is a condition precedent to the obliga- tion "at all times" to "keep in good condition and repair," we have almost a contradiction in terms. How can a road be kept in good condition and repair at all times, if a direction is to be waited for till any time to which the road authority may choose to defer directions - the road falling into disrepair all the while ? Directions or no directions I think the Trust is to keep that road in repair "at all times." In one case the danger may be such that it must repair at once - in another it may be safe to wait days and then give three days' notice, or even more. The Trust must use judgment, and exercise the discretion of a reasonable

person. But to leave dangerous ruts along the rails, causing them

to project as in this case, certainly two, perhaps as much as six"

inches, above the road, and to leave this danger in existence for six weeks, cannot be an observance of the statutory duty.

I am clearly of opinion that the true construction of see. 54 is_

not that which the appellant propounds. Its duty to repair is a continuing obligation. It is incident to this duty that it

should use the materials and repair in the manner directed by -

the road authority - if it obtains or receives any directions - and to the reasonable satisfaction of that authority. Never- theless it owes a duty to the public - of the same nature as, though more closely defined than, that which in the absence of express direction it would have had - to keep the described part of the road in good condition and repair. The evidence and the

verdict show that it has committed a breach of that duty to the"

damage of the plaintiff. I would add that I think such a breach of duty inaccurately deseribed by the term non-feasance, which is not usually applied to a breach of a distinct statutory man- date.

A few words will suffice to dispose of the contention under sec. 100. A consideration of the scope and purview of the Act shows that it is distinctly of the class of Statutes authorizing the

execution of work for the unsanctioned performance of which the

subject would ordinarily have a remedy if he suffered damage. Holding the view I have expressed of the meaning of sec. 54 as a distinct formulation of a duty the breach of which is actionable, I find neither in see. 100 nor elsewhere in the Act an intention that the person injured by a breach of sec. 54 should be deprived of all remedy except such as he may obtain by a complaint under sec. 100.

For these reasons I am of opinion that the respondent should hold his verdict and that the appeal should be dismissed.

Isaacs J. read the following judgment: - With regard to the question of liability for non-feasance amounting to a breach of duty, I acquiesce with doubt, in the view that the Trust are liable in such ease.

My doubt arises priucipally from the following considerations:

• (1) Seeing that the Trust is substantially a municipal organiza- tion and whatever damages it pays are so much less for the con- stituent corporations, it is improbable that without some specific provision the municipalities were indirectly to be made liable for a class of liability to which the law did not expose them.

(2) No such specitic provision exists ; but on the contrary, sec. 66 of the general Tramways Act 1884 corresponding to sec. 55 of the English Act has been omitted from the Municipal Tram- ways Trust Act 1906.

(3) In that section the word " works" apparently includes the "works" of repair referred to in the concluding paragraph of sec. 11 of the Act of 1884 that paragraph being also omitted from the Municipal Tramways Trust Act 1906.

On the other hand, the duty whatever it may be is a distinct one, and is not affected by the historical reasons concerning sur- veyors of highways, except to the extent that the municipal nature of the Trust introduces it. Further, the obligation has not in any case been rested expressly on sec. 55, and there is the decision in Barnett v. Poplar Corporation (1). On the whole, therefore, though with hesitation, I think the liability exists.

But those elements creating doubt are of importance in decid- ing how far the new duty extends, and assist me in arriving at my conclusion on that point, which is that this appeal should be allowed.

The alleged cause of action is omission and neglect to keep in order the road as distinguished from the tramway itself. No complaint is made in respect of the rails, except that, by reason of the adjacent road material having disappeared, the rail was left higher than the varying surface of the adjacent depression. This appears very clearly from paragraph 2 of the statement of claim, the evidence of Wellington, the constable called for the respondent, and the first few lines of the judgment of Gordon J. The jury's finding must be understood accordingly - otherwise there is no evidence to support it. I need not therefore state the facts as to this in greater detail.

In the present case there was no direction by the road authority as to material or manner of repair, or at all, and that

H.C. or A. has been admitted throughout. Way C.J. says that in econtra-

1912, distinction to Dublin United Tramways Oo. v. Fitagerald (1) : - Muntcreaz "In the present case no such direction was given by the road : Tramways authority, the District Council of Campbelltown, nor was any

oa direction asked for by the defendant Trust." That is borne out ; STEPHENS.

by Mr, Goodman's evidence, which is to the effect that until after wesJ. the accident in this case, no communication passed between the bodies, as to see. 54, and as to the eastern (the relevant) part of the line, none has ever passed.

The respondent's whole case, then, depends upon whether the law imposes an absolute unconditional duty on the Trust, not one of reasonable care, but a duty to be observed at its peril, to keep the road between its rails and for 18 inches on each side of the outer rails in good order and condition. he direction of the learned Chief Justice to the jury in substance was, as stated by Gordon J., that if they found the road was out of repair owing to the negligence of the Trust it was liable. Reading both the judg- ments together it appears that the direction stated that an abso- lute statutory duty of continuous repair lay upon the Trust, and that is the decision appealed from. If that is so, it seems to me no question of negligence presents itself; it is either performance or non-performance of the required duty, whatever that may be. See Sadler v. South Staffordshire and Birmingham District Steam Tramways Oo. (2). "The duty is to see the thing done"

• per FitzGibbon LJ. in R. v. Clure County Council (3). The appellants deny any duty so absolute and unconditional, and say that the duty is simply to comply at all times with the road authority's directions, and to its satisfaction.

The respondent, however, contends that the absolute duty exists by reason of sec. 54 of the Act, and also contends that independently of any express statutory provision there exists a common law liability to repair the road as distinguished from the rails. The learned Chief Justice of South Australia disposed of the asserted common law liability very summarily. He said : - "There was no original common law obligation upon the Muni- cipal 'Tramways Trust to keep the strips of the road in question

(1) (1903) A.C , 99. (2) 23 Q.B.D., 17. (3) (1904) 2 LR., 569, at p. 583.

in repair." I entirely agree with him; but as the contrary view H. was pressed it will have to be shortly examined.

The Trust is a corporation specially created by Parliament to yy, carry out a statutory scheme consisting in the first place of an ™ arrangement between the Government and certain municipalities; and the powers conferred upon it, at all events so far as they relate to the line of tramway with which we are now concerned, and which, as Way C.J. observes, at once vested in the Trust under the Act, are imperative. See especially secs. 7, 28, 33 and 34, and note the omission from see. 54 of the " abandonment" part of see. 11 of the General Tramways Act 1884 (No. 309).

The present case falls within the category of which The London, Brighton, and South Coast Railway Co. v. Trwman (1) is a type, and in what Lord Selborne there calls a "direct con- trast" with Metropolitan Asylum District v. Hill (2), and I may add with a private company, as Lord Halsbury described the Dublin company. Lord Watson, for the Judicial Committee in Canadian Pacific Railway v. Parke (3), adverts to and acts on the distinction. Consequently the mere fact of the rails impeding traffic cannot in the absence of negligence or the omission of some legal duty constitute an unlawful obstruction.

It was urged on behalf of the respondent that there was a common law obligation by reason of the rails being above the level of the road as shown by the case of Oliver v. North-Eastern Railway Co. (4). That was cited in the case of Neilsen vy. Bris- bane Tramways Co. (5), recently decided by this Court, and in this respect not distinguishable from the present one; but it was held that no such common law obligation existed. And I am still of the same opinion. The respondent has misunderstood Oliver's Case (4). There the complaint, as charged and argued, was that the rails were left too high, not that the defendant was bound to raise the level of the road. The defendant urged in defence that the road authority should have brought the road up to the level of the rails, as the rails themselves were originally properly laid. But the Court held on the principle of R. v. Kerrison (6) that, as

(1) 11 App. Cas., 45. (2) 6 App. Cas., 193. (3) (1899) A.C., 535, at p. 547.

was said by Blackburn J. (1), the rails were a " substitute," that is, of course, for the portion of the way formerly occupying the - position of the rails the substituted portion - the rails and not the adjacent road - should have been lowered to keep pace, so to speak, with the rest of the way. The whole principle is fully explained by Lord Alverstone C.J. in Hertfordshire County Council v. Great Eustern Railway Oo. (2), where the liability is rested wholly on the doctrine of substitution. The reference to R. v. Kerrison (3) has no other meaning. See also Lancashire and Yorkshire Ruilway Oo. v. Bury Corporation (4). Any other view of Oliver's Case (5) would run counter to such cases as Thompson v. Brighton Corporation (6) and Chapman vy. Fylde - Waterworks Co. (7).

This leaves as the only question the true construction of sec. 54 - whether there is the absolute statutory duty to repair and _ keep in repair atall times, at all hazards, and in all circumstances, and independently of any requirement of the road authority, or its satisfaction ; or whether it is a duty to repair and keep in repair in accordance with the direction of the road authority, and to its satisfaction. In my opinion the House of Lords has already settled the question in favour of the latter view, but as there is as much difference of opinion with respect to the interpretation of the judgments in that case as there is with regard to the words of the section, it will assist to lead up to that decision by a con- - sideration of the matter apart from authority.

Prior to the Act, the control of the roads and the power as well as the right to repair them, were exclusively vested in the road authorities. See District Councils Act 1887 (No. 419), secs. 272-290 ; and Municipal Councils Act 1890 (No. 497), sec. 125.

That control power and right still remain unimpaired, being specifically preserved by secs. 64 and 82 of the Municipal Tram- ways Trust Act 1906. And under such municipal powers not merely may the road authority re-make the whole road - other than the rails - but even though the work may prejudicially affect the Trust's expenditure, and though the Trust objects, it

(1) L.R. 9 Q.B., 409, at p. 410. (5) L.R.9Q.B., 409. (2) (1909) 2K.B., 403, at pp. 408-9. (6) (1894) 1 Q,B., 332. (3) 3M. &S., 526. (7) (1894) 2. Q.B., 599.

may be proceeded with without resort to the arbitration powers H.C. or A.

of the Municipal Tramways Trust Act. This is shown by Bristol Trams and Carriage Company Ltd. v. Bristol Corpora- tion (1). Lindley LJ. uses these important words (2) : - <'The question in this case is whether the defendants, who are the road authority, and upon whom the duty of repairing and maintaining the road in the interests of the public is imposed, are, in the exercise of their powers and the discharge of their duty to the public, subject to the restriction contended for in the interest of the tramway company." »

In Dublin United Tramways Co. Ltd. v. Fitzgerald (3), Lord

Halsbury says the road authority "has jurisdiction over the

whole of the highway." The Croydon Case; R. v. Croydon and Norwood Tramways Co. (4), was relied on by the respondent.

A private Act required the Company to pave the street to the satisfaction of the Council with wood or such other paving as the Council might approve and should at all times keep it in good repair. Nothing was said about the Council's direction. The Act itself gave the direction, and the obligation to repair was unqualified. But the case is instructive, as distinguished in the Bristol Case (1), to show the difference between a power exer- cised by the Council under the Zramways Act controlling the Company and one exercised under the ordinary municipal Statute; and taken together these cases show that the two dis- tinet sets of municipal powers co-exist. For this purpose the Croydon Case (4) is important.

The road authority here may under the Municipal Tramways Trust Act decide to direct the Trust to repair the road and keep it in repair. It may do so by general order, which always operates until rescinded or modified; or it may do so by a specific order limited to place or time, or varied as to locality. If such a direction is given it must, unless varied on arbitration, be obeyed, the Trust must conform to it, or otherwise be guilty of a contra- vention of the Act, and suffer either civilly or criminally (sec. 100), or in both ways. As the liability in either case is not for negligence but for breach of duty to "keep in repair," it is only

(1) 25 Q.B.D., 427. (3) (1903) A.C., 99, at p. 103, (2) 25 Q.B.D., 427, at p. 447. (4) 18 Q.B.D., 39.

just and reasonable and indeed practically necessary, unless the

obligation of insurance is imposed, with criminal penalty attached, that the 'Trust should know beforehand with some degree of accuracy what work it is required to do, that is as regards the public; and equally so with regard to the Council, whose satisfaction is demanded. On the other hand, it may be that the _ Council may prefer to do the work itself under its general powers, - and at its own expense, rather than incur the delay or trouble of a dispute and arbitration ; or it may consider such a course the - more just, as, for instance, if damage 'were done to the road by a heavy corporation steam roller ; or if the road fell into bad eon- dition through some engineering mistake of the Council itsel{ - all of which it would be hard on the Trust to be accountable for. It would certainly be an additional hardship if the Trust were responsible for the bad condition of 'the road, through the misfeasance of the Council itself; but if there is the direct absolute obligation to the public which is insisted on, this - would necessarily follow, because no "direction" is given which would exonerate the Trust. The position cannot be denied - that according to the respondent there exist at the same time, in respect of the same thing, two diverse, independent, and possibly - conflicting jurisdictions. The Council under the Bristol Case (1), and it has the sanction of Lord Halsbwry in the Dublin Case (2), may repair or remake the road as it pleases and when it pleases, regardless of the Tram Company's wishes; and the Tram Company may, because by the hypothesis it must without any direction from the Council, proceed to repair, whenever repairs, as it ultimately appears in the opinion of a jury, have become necessary. Even a direction by the Council not to repair would not, if the respondent be correct, suffice to exonerate the Trust ; nor even a mere prohibition as to certain materials, because there is no general requirement to obey the Council's directions, positive or negative. The requirement is to obey positive instruc- tions as to materials and manner. So we may suppose two co-ordinate bodies, neither directing the other, but in conflict as to the materials and manner in which they shall respectively, at their own individual several expenses, repair the public highway.

The only control which the Council has over the Trust is to H.C. or A.

But if their natural construction be given to the words of sec. 54, this absurd result is avoided. The Council, which is entrusted with the duty and power of controlling the Trust, in the interests of the general public, of which for this purpose it is the natural and statutory guardian, may either do the work itself, or at its option give directions which must be followed if given and unappealed from. This view harmonizes all the legislation, pre- serves the complete control of the municipality, compels the Tramway Trust and all similar companies to repair in the first instance if so required, and avoids a conflict of duties and powers, and establishes complete justice to all. It has been said in the course of this case, that the Tram Company ought not to shelter itself behind the remissness of the District Board. That is true, but the necessity for shelter must first be shewn, and there is none unless an absolute statutory duty is created. The hardship on an individual is not sufficient to create the liability; or the injuries from similar acts of non-feasance would long ago have changed the law. The simple question is: Has Parliament laid down an absolute duty at all hazards, and under all circumstances; and does the mere fuct of the road being at any moment out of condition or repair constitute a breach of duty involving penal and other consequences? This must be determined by a careful examination of its actual language, and not by an a priori con- clusion that justice requires the creation of that duty, or that such must have been the object of the legislature. It should not be forgotten, however much one may sympathize with a person who has met with a severe accident, that the road is not that of the Tramway Trust. It was not constructed by the Trust, and it is under municipal charge, and the obligation put upon the Trust is an exceptional one, inserted, no doubt, in the interests of the general body of ratepayers, but, as a new statutory duty, it ought not, in my opinion, to be enlarged beyond the fair meaning of the words. The intention, giving them their fair natural meaning, is to enable the road authority to relieve itself of expense in respect of the portion of the road referred to, by compelling the Trust to

do what the road authority thinks necessary. I can discern no VOL, Xv, 9

• shall at all times keep all its undertaking in good repair a

special intention to expose the Trust to liability to individu whether the road authority avails itself of its option or not.

language of the legislature, however regarded, leads me to th conclusion. There are three sections which should be looked together. One is sec. 66, which is in these terms: "The Trust,

working order." That is a simple absolute duty, which the - legislature knew how to create and how to express, when it - wanted to. f

language is remarkable. It says : - "'The Trust shall, at its own expense, at all times keep in good condition and repair, with - such materials and in such manner as the road authority shall direct and to its satisfaction," the parts of the road specified. The definition of the duty there includes every member of the sentence, and the measure of obligation is the combined effect of | each portion of the definition. Every part has its meaning and value. (1) " At its own expense" would be meaningless if the duty existed independently of any direction, because there coul be no pretence that anyone else could be called upon to bear expense. A direction, however, might be thought to give room for controversy, and so this initial phrase was inserted. Then (2) "at all times " indicates that the duty to obey the direction is" always and continuously existing ; it is not exhausted by a single direction. Then (3) " Keep in good condition and repair" imposes - the duty of first putting the road into good condition, if it is not already in good condition - see Payne v. Haine (1). But the word " maintain" which is at this point in the English Act and also in sec. 11 of the South Australian General Tramways Act 1884 No. 309, 47 & 48 Vict., is omitted from sec. 54 and as will be seen, designedly. So far as this omission has effect, it indicates an intention, even more distinct than in the English Act, that the original condition of the road is not to be the - standard of material or manner of keeping in good condition and repair. It leaves those matters entirely uncertain, and in need of the exercise of judgment. Then (4) " with such materials and in such manner as the road authority shall direct" is both

grammatically and practically an essential part of the statutory H.C. or A.

definition of the duty. With what materials is the work to be done? Is it with such as the Trust thinks suitable? No; with such as the Council shall direct. Is it in such manner as a jury may consider proper? No; such as the Council shall direct. This is a condition precedent so as to enable the Trust to proceed with the knowledge of what if properly done will or ought to satisfy the Council. In principle it is the same point as was decided in Coombe v. Greene (1) and Hunt v. Bishop (2). I did not understand any admission that absence of direction for years amounted in time to an actual direction. The very contrary was pressed. The mere fact that the Trust may have done more than their duty previously does. not enlarge that duty. The last member is (5) "to its satisfaction" - this is a condition subsequent. It is vital to note that this condition is not a mere matter of exculpation by which the Trust may be excused from a breach of duty. The non-fulfilment of the condition is an essential part of the breach of duty itself. R. v. Garrett (3) demonstrates this. That is a view which appears to me not to receive its full weight in the opposite conclusion. As to this of course if directed work be not done at all no protection can be claimed, unless the Trust disputes the reasonableness of the direction, for then the satisfac- tion of the Council is impossible. But the non-performance of work that a jury may think necessary, is in a different situation, because the absence of direction - a condition precedent - dis- closes a fatal flaw in the alleged duty to perform the work The difficulty cannot be bridged by saying that a jury can say whether the Council ought in a given situation, where no direc- tion is given, to be satisfied, because as shown by the Croydon Case (4) and R. v. Garrett (3), that is a function which the legis- lature has committed to the arbitrator. 'The respondent's position involves the possible conflict of opinion between the jury and the arbitrators.

Now we come to sec. 55 which strongly supports the view just presented. It contemplates the case of the municipal authority determining to have the whole road paved with some special

(1) 11M. & W., 480. (3) 73 J.P, 188. (2) 8 Ex., 675, at p. 679. (4) 18 Q.B.D., 39.

material other than macadam - say wood. Still, it is assumed, it will not use the municipal funds for the whole road, but only for such part as lies outside sec. 54. In that case it may, "as and when" it will, require the Trust to pave the portion within sec. 54 with wood also, that is with "such material" and again "at its own expense " and as to this no arbitration is permissible.

The Act settles that point definitely. And thereafter so long as

that material is not changed, that is the material selected and

directed by the Council, the case requires no further "direction"; and as the manner necessarily accompanies the original direction, - it is clear that as to providing for future repair, according to this

standing direction, all that the section needs to do is to prescribe,

as it does, that the Trust shall "maintain and keep in good con-

dition and repair to the satisfaction of the road authority." Here

the word "maintain " is inserted, obviously for the purpose above

referred to. The conclusion reached by the mere inspection of

the words is helped by a consideration of what might easily

The 'Tramway Trust may on the assumed absolute duty proceed without a direction to put the road into a certain condition of repair which is thought good. Well, supposing the Council examining the road is satisfied, and gives no order because it is satisfied, is there still a duty, merely because no "direction" is given, to satisfy a jury also at the peril of paying damages? I cannot think so. If the Council were, after an adverse verdict, to direct the Trust to do the very thing the jury had condemned, it is conceded the Trust would be free. How can this inconsist- ency exist? As to see. 53, the whole of the powers including the power in sub-sec, (1) to break up the road is governed by the words "for the purposes of this Act," and those purposes have first to be determined before that sub-section can be applied. See per Lord Esher M.R., in Chapman vy. Fylde Waterworks Co. (1); and per Kay UJ.(2); and per Lord Alverstone CJ. in Grand June- tion Waterworks Co. v. Rodocanachi (3). Sec. 56 is a qualification of the generality of powers previously created, and the emergency means an emergency of right or power otherwise established. It

(1) (1894) 2 Q.B., 599, at p. 605. (2) (1894) 2 Q.B., 599, at p. 607. (3) (1904) 2 K.B., 230, at p. 238.

cannot mean that an emergency of any kind however created, H.C. or A.

and in all circumstances, creates a duty. Therefore those sec- tions carry the matter here in debate no further. The Trust is not called upon to serve two masters, and if the duty be to act on its own responsibility, until direction, and then to alter what it has done when a direction is given, it is a highly arduous, harass- ing, expensive, and indefinite duty to discharge, attended with a highly perilous and indefinite liability, and one which with all respect I venture to think the legislature has not imposed. The inconsistency may still further be demonstrated. A direction may be given, and, on arbitration, the decision may be that nothing need be done. Nothing is done, and yet according to the respondent the Trust is liable if a jury differs from the arbitrator and thinks that no council could reasonably be satistied. For my part I cannot see how on such a basis the Trust can with any security to itself or its constituent corporations carry on its functions.

This is how the matter stands apart from specific authority. As to the authorities - first in importance and as I think in definiteness is Lord Halsbury's lucid statement in Dublin United Tramways Co. Ltd. v. Fitzgerald (1). Throughout his Lord- ship's judgment the direction given by the City Corporation plays a prominent part, and this notwithstanding the section in the private Act the expansive language of which accounts for some of the wider expressions. The most important passages in the judgment of the Lord Chancellor are first that on p. 104 where he says the defendants are "directed" to act under the superintendence of the road authority, and next that on p. 105, beginning : - "I read the Statute," and ending "and if you do that your obligation is discharged." The substance of that is: the Tramway Company is not an independent road authority, that is it is under the control of the ordinary road authority, but it has a primary duty of repair, that is the Council may direct the Tramway Company to do what the Council would otherwise be bound to do, viz., to repair, and the Trust must do it, and also perform the consequential work of keeping the road in the same good condition, and if it obeys the direction its statutory obliga-

tion is discharged. Lord Halsbury is too great a master of English language and law to mean that an absolute duty is discharged by performing a limited one.

Lord Davey (1) also states the duty under sec. 28 as one to that portion of the roadway in good condition and repair with such materials and in such manner as the road authority shall direct. Lord Shand's judgment is more fully reported in 87 LT, 532, at p. 534, and 51 W.R., 321, at p. 323, and is in consonance. It is clear that what the House was called upon to determine was" the duty as to "condition" as distinguished from mere structural "yepair," and it was held, as I read the judgments, that the good condition in which the material was when the direction was first' obeyed should be preserved and maintained, and that this really flowed from the direction itself. How it should be so preserved - was a matter of engineering, and even that was simplified by the direction in fact to use sand. But it never seems to haye - been doubted that as to materials and manner of repair some direction of the road authority was necessary. It is to be observed - that no British Court has ever said the obligation is absolute. On the contrary Howitt v. Nottingham and District Tramways Co, Ltd. (2) and Alldred v. West Metropolitan Trams Co. (3) state the exact opposite. In the latter case Bowen LJ. says (4): - _ "Can it be said that they have failed to do what is imposed by the Statute, viz., to keep the road in repair to the satisfaction of the road: authority ?" The respondent here substitutes for or adds to road authority "a jury." Lord Esher MLR. (5) reads the whole composite statutory definition of the duty and says: - "I i do not think that the view taken as to the primd fucie liability _ of the tramway company went further than that." The point of | the case is shown by the argument of Mr. McCall Q.C. (4) that - "the tramway company are to keep the roadway in 'good con- dition and repair, as well as to the satisfaction of the road authority," and therefore the duty was not transferable. The Court rejected the argument, and held as above mentioned. That case is clearly inconsistent with any notion of absolute duty, even -

(1) (1903) A.C., at p. 107. (4) (1891) 2. Q.B., 398, at p. 400. (2) 12 Q.B.D., 16. (5) (1891) 2 Q.B., 398, at p. 401.

"prima facie," to use Lord Esher's words. Then the opinions of H. C. or A.

Lord Alverstone C.J. and Walion J. in R. v. Garrett; Ex parte

London United Tramways (1) ave distinct that the obligation is yexrcrran

not absolute, and that the allegation of want of satisfaction of the ™

Trust road authority is necessary to constitute even a primd facie v contravention of the statutory duty. I refer particularly to the nae Isaacs J.

passages in the Lord Chief Justice's judgment (2) beginning "Then section 12 provides" and ending "referred to arbitration under section 33," and at the end of p. 540 and beginning of p. 541.

The question came directly into consideration in the case of Morris v. Canterbury Tramway Oo. Ltd. (3). The views of Denniston J. are the same as those of Lord Halsbury in the Dublin Case (4). I am tempted to quote a short but most appropriate and convincing passage from the judgment, observing first that the language of the New Zealand Act is also that of the English Act. Denniston J. says (5): - "Is the road to be kept in good condition and repair, and to the satisfaction of the local body, or is it to be in good condition and repair to the satisfaction of the local body ?- Grammatically, I should be inclined to refer the 'and' before the words' to their satisfaction' to the subsidiary paragraph beginning with 'such materials' and not to the prin- cipal paragraph. I think a consideration of the rest of the section supports this. Supposing the local body required the company to repair the road on some new-fangled method, which turned out to be unsafe, could it refuse? and if the result of the compliance was to leave the road unsafe - that is, not in good condition - could the company be liable? Similar considerations, I think, apply to repairs. The Corporation must determine what is to be the relative adjustment of road to rail, and other details, Too high might be as dangerous as too low. And if the local authority itself did the work under the proviso in section 27, would the company be liable if it were improperly done?"

For sec. 27 in the last sentence I would here substitute the ordinary powers under the general Municipal Statutes, because

(1) 100 L.Y., 533 ; 73.0.P., 188. (4) (1903) A.C., 99. (2) 100 L.T., 533, at p. 540. (5) 10N.Z. L.R., 524, at p. 528, (3) 10.N.Z. L.R., 524.

the proviso to sec. 27 is omitted here, as the Trust is as certain to obey directions as not to abandon the work altogether. That case was approved by Williams J. in Dunedin City and Suburban Tramway Co. v. Ross (1), where a depression similar to the one in the present case was allowed to exist, but the Council's inspector said he was satisfied. The assumption here is that the Council's expression of satisfaction would be immaterial because nothing was done to repair a palpable depression obviously dangerous. If it would, the whole argument for the respondent rests on an illusion. Some American references quoted from a text-book were relied on. The strongest apparently is a New York case of Doyle v. N.Y. Railway Co. (2). This is not procurable here, but if its effect be as stated, it is not only contrary to the British decisions I has mentioned but is also apparently opposed to the view of the final Court of Appeal. See Conway v. City of Rochester (3). If then a direction be necessary before the obli- gation to repair is called into activity the case for the defendant is clear, because, as already stated, there was none.

(1) 13. N.Z, L.R., 366, (2) 58 N.Y. App. Div., 588. (3) 157 N.Y., 33, at p. 38.