Municipal Tramways Trust v Stephens [1912] HCA 46

Municipal Tramways Trust v Stephens [1912] HCA 46 - HCA 1912 case summary — Zoe

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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

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"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

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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.

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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

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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.

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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 -

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Judgment (197 paragraphs)

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