Nielsen v Brisbane Tramways Co Limited [1912] HCA 21

Nielsen v Brisbane Tramways Co Limited [1912] HCA 21 - HCA 1912 case summary — Zoe

[22]

The position of the centre line of the tramway is prescribed by sec. 28 which provides that: - "The Company shall not, except with the consent in writing of the council, alter the levels of any street." That means, I suppose, that they are to take the street as they find it. It is to be remarked that in a new country where municipal councils and local authorities have not unlimited funds it very often happens that the level at which the roadway is first formed is not the permanent level of the street. The council may not be able to afford to make up the street to that level, to raise up the lower parts of the surface and cut off the elevations so as to make a really good road, but they do the best they can. Very often perhaps they will cut off a piece from the top of a hill and with the material fill up the adjoining hollows, and from year to year, as their funds increase they gradually improve the street, until, at last, they have made a street such as, for instance, Queen Street, which used to be a series of hills and hollows, and is now a tolerably level roadway. The Company, then, is not to alter the levels - that is, they are to take the street as they find it. Then it is provided by sec. 32 that : - * The tramway shall be constructed and maintained in the manner following" : - First the distance between the rails is prescribed. Then it is provided that "The uppermost surface of each rail shall be on a level with the surface of the street." Sees. 36 and 39 define the duties of the Company as regards the breaking up of the surface. The legislature were aware, as was everybody else, that it was necessary to dig holes in the street to put down the foundations of the tramway and fill the holes up again. In view of that necessity the meaning of the direction I have just quoted is apparent. When the rails are laid down they will be uncovered; the sleepers will be uncovered ; and the foundations will be uncovered. The Company must cover all that up and do it in such a manner that the surface of the street and the sur- face of the rails will be on a level. That is the duty as to con- struction. Then the next section, sec. 33, provides that the tramway shall be so constructed and maintained as not to impede or obstruct the ordinary traffic of the street. It seems to have been sometimes assumed in argument that the only way in which a tramway can obstruct the ordinary traffic of a street is by the

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been default in the maintenance of the road. So long as sec. 50 applied to them they were bound to maintain it, and it may be that, apart from see. 50, they would have been under some obli- gation to maintain it in such a way as to prevent the rails from becoming dangerous. But the legislature has thought fit to pre- scribe by sec. 50 a definite rule governing their obligations in that respect, and has also provided that the Governor in Council may suspend those obligations, and in this case they have been suspended. Under sec. 79 that suspension cannot be made except either on an application by a local authority, or on a petition signed by no less than one-third of the owners or occupiers of the rateable property fronting the street, or a petition from the com- pany itself. Notice is required to be given in the Gazette, objec- tions may be made, and finally the Governor in Council may exercise his discretion in the matter. he result of suspending the obligation of that section is, of course, that the Company are no longer under a statutory obligation to do the very thing that is here complained of as not being done. It is true that the statutory obligation is to do rather more than to keep the rails level with the road where they join, and it was contended that when they are relieved from the larger obligation they are still subject to the smaller one. That argument impressed me for some time. But it loses sight of the consideration that sec. 50 both declares and delimits their obligations. The subject of the complaint is, as I have said, that the Company have not kept the road in good repair. Upon whomsoever the duty may lie of maintaining the road, that duty has not been performed, but it does not lie upon the defendants. I think, therefore, that under those circumstances it cannot be said that the defendants have been guilty of any breach of any duty imposed upon them by the Statute. I have already pointed out that what is com- plained of here is not a failure to maintain the tramway in such a manner as not to impede or obstruct the ordinary traffic in the street, but a failure to maintain the roadway as distinguished from the fabric of the tramway. Of course, in one sense, the tramway was not maintained in such a manner as not to impede the ordinary traffic of the street, because if the tramway had not

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break up the street for the purpose of constructing, maintaining, or renewing the tramway. That is to say it may break up the roadway where it has to do something by way of either building, or keeping up, or laying the tramway as distinct from the street. By sec. 36, when the Company require to break up the street they are to give the council seven days' notice of their intention, specifying the time when they will begin operations and deserib- ing the portion of the street intended to be broken up. They can of course only break up the street for the purpose of either laying down the tramway in the first instance or maintaining it, or making renewals of any parts of it. In other respects they have nothing to do with the street. As far as the maintenance of the street for ordinary traffic is concerned that is the duty of the council, under the Local Authorities Act. Sec. 60 of that Act charges the council with the construction, maintenance, manage- ment and control of all roads, and other necessary public works within the area. 'To what extent then are the Jocal authorities relieved of that duty by this tramway Statute? Well, the tram- way cannot be laid without interfering with the surface of the street, and the surface has to be restored by some one. To that extent construction or rather renewal of the street is cast upon the Company. They cannot construct their tramway without doing that much work on the street; but, apart from the require- ment of sec. 30 in certain special cases, the Statute has not cast upon them any duty of keeping up the streets along which the tramways pass, except by sec. 50, which binds them to maintain in good condition and repair the street between the rails and also a space of 18 inches on each side. Now, as already pointed out, we have in sec. 30, apart from the mere construction of the tramway itself, the only duty of constructing roadway itself cast upon the tramways Company ; and that section enters into this case only for purposes of interpretation, as the street in which the accident happened is not such a street as is contemplated in that section. In sec. 50 the duty of the Company with respect to street repairs is expressed, and that section is suspended by Order in Council. Then we have this state of things, that the Company, having to a certain extent by Statute the power of interfering with the roadway for the purpose of constructing the tramway, have

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case. The proper construction of the tramway is admitted. The Company's duty with regard to repairing the roadway, as it existed under sec. 50, which is obviously substituted for any common law liability of the Company as for a nuisance, is dor- mant. The question is whether, notwithstanding these facts, there is a duty of maintenance of roadway cast upon the Com- pany by sec. 33 (1), which duty they have not performed? That is the duty which is alleged by Mr. Macrossam under sec. 33 (1), and it is, of course, if it exists, a duty the breach of which may be committed by allowing the traffic to impair the roadway with- out maintenance or renewal on their part. Well, the distinction between roadway and tramway being, as T have stated, so clearly drawn in the Act, not only in the section to which I have referred, but in other sections, we come then to the consideration, in another aspect, of sec. 32 (2), which I have read. 'This requires the con- structing and maintaining of the tramway so as to keep the sur- face of the rail on a level with the surface of the street. Now, it is impossible to contend that it is the duty of the Company constantly to alter the rails or the bed in which their rails lie in relation to the street in such a way that for every casual varia- tion in what I may call the local or casual, as distinguished from the general, level of a part of the street the rails shall be altered accordingly. That would involve alteration to the rails whenever the traffic wore out a foot or two of roadway. Such a meaning cannot rationally be put upon the section. We have to consider what duty of maintenance the defendant Company are under as to the tramway, and not with reference to the street. Does not maintaining, then, mean maintaining as constructed ? £ think it does, for the alternative interpretation is not rational ; that is to say, the tramway having been constructed so that the uppermost surface of the rails is level with the surface of the street, it must be maintained at the level of its original construc- tion, leaving the maintenance of the street or road itself to those whose ordinary business it is. Now that is of the greater import- ance because of its bearing on sec. 33 (1), which says the tram- way is to be " constructed and maintained " so as not to obstruct or impede the ordinary traffic of the street, and if the words

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street. The surface of a street is not a dead level. If you con- sider the position of one rail first, it is evident that the enact- ment cannot mean, even in that case, that the whole of the upper- most surface of the rail shall be on a level with the surface of the street, because you would immediately ask yourself which side is referred to, and there is in every case some differenee - in some cases a perceptible difference - between the level on one side of the rail and that on the other, and in fact the rails being between these two different levels corresponds precisely with neither. Still less will that level of the uppermost surface of the rail correspond with the surface of say 10 feet nearer the kerb; and then if we find in the sub-section that the uppermost surface of each rail shall be on a level with the surface of the street, it would mean if the contention were correct that the sur- face of the street generally was referred to, that every rail must be on the same level. That of course is impossible. More than that the council has power to alter what is called in the Local Authorities Act the level of the ground in a road as distinct from the level of the road, because it says if the council alters the level of the ground except in conformity with the level so fixed, it must pay compensation ; so that it might alter the level sub- ject to paying compensation. That would leave the tramway Company in a very difficult position. It might ask for com- pensation but it would not comply with that sub-section. Then the Tramways Act provides further that in the event of a street level being altered the Company shall alter the levels of the tramway to correspond, That cannot mean that if the local authority chooses to lower the level some little distance from the rail, or even adjacent to it, to some lower level the Company is bound to drop its rails to that level although the part of the road on which it rests remains the same as before. What I understand this sub-section to mean is this, that before any tramway is laid at all the street has a certain recognized level. His Majesty's subjects have the right to travel over that highway at that level, and when the tramways Company seeks permission from Parliament to replace with iron rails a portion of the ordinary material of which the highway is composed it receives that permission on this condition among others, that the material which it substitutes for macadam or other metal of the

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away, that being the same condition which Mr. Justice Black- burn points out in the case of St Luke's Vestry (1) that a mem- ber of the public passing over the road is entitled to have the wheel of his vehicle pass over at neither a higher nor a lower level than it would otherwise pass over it. When we arrive at that position it seems to me to simplify all the rest of the case. The tramway is the property of the Company. The Company has to construct and maintain that tramway, and the words of the Act as to the meaning of tramway are substantially the same as those used in the English Statute. In the case of Edinburgh Street Tramways Oo. v. Lord Provost of Edinburgh (2), the House of Lords had to consider what was meant by tram- way. In 1894 App. Cas., at p. 464, Herschell L.C. defines tram- way as the structure laid down on the highway, and nothing more. Lord Watson at page 471 describes it as the fabric of the tramway line. The Act of Parliament, under which this particular line was constructed, gives power by sec. 5 to construct, maintain, and work a tramway upon and through any street or other place, with all proper rails, plates, works, sidings, junctions, stations, approaches and conveniences connected there- with. See. 6 requires the plans to be deposited. That shows what is meant by the tramway - something which is not the road, but which is placed on the road, and it has of course conveniences connected with it. Now, it is said by the learned counsel for the appellant that there is a common law principle that when Parlia- ment authorizes a thing to be done it does not authorize a nuisance. That is not strictly accurate. It all depends upon what Parliament has authorized. If what Parliament authorizes is a mere permissive act which may be done without committing a nuisance then a nuisance is not authorized, but if Parliament has authorized something which after taking all reasonable care and by applying the best scientific methods that are ordinarily adopted and reasonable in the circumstances, and if notwith- standing these precautions a nuisance is created, then Parliament must be taken to have authorized a nuisance to that extent. There are cases which show the distinction such as the Metro-

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this surface was when it was constructed, and until the level of the street is altered in accordance with sec. 41 of the Act, cannot be regarded as a nuisance. The meaning of that sub-section, to my mind, is this, that there shall be no impediment or obstruction caused by the construction and maintenance of the tramway on the part of the Tramway Company. It is assumed by the legisla- ture that they will do their duty, and that the local corporation will do its duty. If see. 50 were in full operation it would be assumed that the Tramway Company would do their duty under that sec- tion, and the corporation would do its duty ultra. When that sec. 50 is suspended, and the local authority has the duty of looking after the road as distinct from the tramway, then Parliament assumes that that duty will be fulfilled, and if it is wrong to leave this depression in the road which is not part of the tramway, it must be assumed by Parliament that the proper authority, in the present instance the local authority, will repair that omission. Therefore, when in sub-sec. (1) of sec. 33, the legislature assumes that, it cannot mean that it becomes illegal on the part of the 'Tramways Company to allow its rail to remain in the position in which it was properly placed, and would be properly maintained, but for the wrongful omission of another authority. That, to my mind, ends the matter, and makes many of the cases cited irrele- vant to this particular case. If Parliament had chosen to say that the tramway should not be conducted if a nuisance or obstruction arose, whether through the default of the Tramways Company or of any other person, it would be quite different, but it has not said that, and it would be most unreasonable if it had. We cannot, in the absence of the most express words, imagine Parliament would say anything so unreasonable. With the con- struction I have placed upon the section it seems to me that the inevitable result is that the Company are not liable, and I there- fore agree that this appeal should be dismissed.

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Judgment (61 paragraphs)