Rockhampton City Council v Russell [1931] HCA 22

High Court of Australia|1931-07-01|Before: McTiernan JJ, By Evatt J, Brennan J

COUNCIL OF THE CITY OF ROCKHAMPTON APPELLANT ; DEFENDANT,

Practice - Findings of jury - Misdirection - Findings consistent with evidence - No objection to misdirection taken at trial - Objection raised on appeal - New trial.

Negligence - Death caused by escape of electricity - Statutory electric authority - Duty of authority - Blectric Light and Power Act 1896 (@.) (60 Vict. No. 24), sec, 41.

_ fittings, the electric authority may refuse or discontinue the supply of electricity, H.C. or A. 'and may withhold the supply till it is satisfied that the . . . by-lawshave - 1931. 'been complied with, or that it is no longer dangerous to supply the same." At rt the trial the jury found also, in answer to a general question, that the death _ Rocx-

A HAMPTON 'was not caused by negligence of the defendant authority. In relation to this (ypy Couxon,

question the plaintiff complained of a misdirection. m Held, by Starke, Dixon, Evatt and McTiernan JJ. (Gavan Duffy C.J. dis -

By Starke, Dizon and McTiernan JJ., because, there being no evidence that

the defendant should have discovered the escape or the worn insulation, the

jury could not, consistently with their other findings, have answered that or

~ any other proper question in favour of the plaintiff ;

By Evatt J., because no objection was taken at the trial to the misdirection 'and it was manifestly unfair and unjust to allow the point to be raised on appeal for the first time.

Held, further, by Starke, Diron and McTiernan JJ. that the duty of the electric authority could be stated no higher than to abstain from the supply 'of electrical current to a consumer's installation which it knew, or, exercising reasonable care and skill, ought to have known, was defective and likely to allow an escape of electricity endangering the safety of persons who came "upon the premises.

Decision of the Supreme Court of Queensland (Full Court): Russell v. Rockhampton City Council, (1981) 8.R. (Q.) 183, reversed. ,

n Mary Russell, brought an action in the Supreme Court sec, 12 of the Common Law Practice Act 1867 (Lord Campbell's on behalf of herself and her children, claiming damages against Rockhampton City Council, for negligence in respect of the h of her husband on 20th February 1930. The action was tried ore Brennan J, and a jury.

e defendant was the electric authority for Rockhampton, being constituted by an order in Council made in pursuance of the Tight and Power Act 1896 (Q.), which provided that " the = authority shall be answerable for all accidents, damages,

As such authority the defendant supplied electric to the residence of one Mrs. Gordon, whose installation was at her own expense in October 1926. The husband of the who was acting as Mrs. Gordon's caretaker, met with his Mrs. Gordon's residence by electrocution. He came into

H.C. or A. contact with a wire fence, connected with a tank, to which there 1931. Ww Rocs- _galvanized-iron roof. The installation was inspected and approved

Gay! eat, of by the defendant Council in October 1926, before being connected

Ruseerr, © the supply mains. In January 1927 there had been a leakage

_ ofcurrent to the tank which resulted in electric shocks being received

by several persons. This leakage was reported to the Council, who

was a leakage of current from the electric light wires through a

immediately cut off the supply of current until the defects in the installation were remedied by the consumer. The evidence showed that, at the date of death of the deceased, the material which insulated the wires at the point of entry to the house had become frayed and worn by the combined effects of moisture and swaying of the leading-in wires, so that the wires made contact with a metal conduit fixed in the galvanized-iron roof of the house. The roof was connected to the tank, and the tank to the wire fence. The earthing wire had been tampered with and at the time of the accident _ was not making proper contact.

The plaintiff set out, in par. 5 of the statement of claim, the following particulars of negligence : - (a) The conduit through which the leading-in conductors passed was made to penetrate the galvanized-iron roof, and no safety fuse was placed before the point of entrance to the house of the electric supply. (b) The positive leading-in conductor was not constructed with proper care and skill, in that it was not sufficiently taut to resist air movements, whereby the insulation on the conductor became worn through by friction at the mouth of the conduit. (c) The conduit at the point of entry was not turned down to protect the mouth thereof from the entrance of dirt and moisture and other things injurious to the insulation. (d) No proper earthing was constructed to ensure the safe discharge of electric energy, and the defendant Council made no proper test or inspection of the installation prior to connecting it with the main supply or at any time thereafter. (e) The Council supplied electric current to the house when it was dangerous to do so, and continued the supply after being warned of the escape thereof and without taking proper precautions to prevent it, and made default in not exercising the powers conferred on it by sec. 41 of the Electric Light and Power Act 1896.

The questions put to the jury and their answers were as follows : -

Did Albert George Russell die as the result of electrocution on premises of Mrs. Gordon on 20th February 1930? Yes. (2) the conduit through which the leading-in conductors passed to penetrate the galvanized-iron roof without a safety fuse provided before the point of entry? Yes. (3) Was the dant guilty of negligence by reason thereof? No. (4) Was he positive leading-in conductor constructed with proper care and 4 Yes. (5) If no, was the defendant Council guilty of gence by reason thereof? [No answer]. (6) Was the conduit the point of entry constructed with proper care and skill? Yes. } If no, was the defendant Council guilty of negligence by ison thereof? [No answer.] (8) Was a proper earthing onstructed ? Yes. (9) If no, was the defendant Council guilty of ence by reason thereof? [No answer.] (10) Was the death f Albert George Russell caused by the negligence of the defendant ? No, (11) What damages? [No answer.] On these findings judgment was given by Brennan J. for the defendant. From this judgment the plaintiff appealed to the Full Court of een , which allowed the appeal and ordered a new trial on following grounds: (1) by Macrossan 8.P.J., that the jury should have been directed that "the direct cause of the accident d so much of the surrounding circumstances as was essential to occurence cannot be said to have been within the (effective) ntrol and management of the defendants so that it is not unfair to attribute to them a prima facie responsibility for what hap- "; (2) by Webb and Henchman JJ., that the jury had been ed by the trial Judge in the following passage in his : "You may find that there was certain negligence on he part of the Council, that is to say, negligence for not doing their properly. If there was an insulation defect in the wire itself was not visible to the Council, then the other negligence on part would not have been responsible for the death of Russell. he Council has no possible explanation to offer; they say it is 2 them and it has them beaten. In spite of the negligence

H.C. or A. of" the conduit "not being properly drooped, was the cause of es Russell's death due to negligence ? " : - Russell v. Rockhampton City Rock. - Council (1).

Grr Gouxer, From this decision the Council, in pursuance of leave, now

Rusgeu, appealed to the High Court on the following grounds: (1) There is

no ground upon which a new trial should be ordered; (2) all

necessary questions were submitted and answered by the jury; (3) there was no misdirection by the trial Judge; (4) there was no substantial wrong or miscarriage of justice by reason of any direction, or misdirection by the trial Judge; (5) The said judgment is

McGill, for the appellant. For the plaintiff to succeed in the action it was necessary for the jury to find that the death of the deceased had been caused by the negligence of the defendant. At the trial the evidence was not directed to the cause of death so much as to negligence. The defendant had taken every reasonable precaution. The installation had been inspected before electric current was supplied. The current was cut off in January 1927, when a leakage was reported, and was not supplied again until the defect was remedied. On the evidence the defendant was not aware of the escape of electricity at the time of the death of the deceased, and was not in the position of continuing to supply current knowing of a leakage. If there was any misdirection it did not have the effect of influencing the jury ; consequently there could be no miscarriage of justice. [He was stopped.]

Larcombe and Allen, for the respondent. The evidence shows that the defendant was guilty of negligence in the construction of the electric light wires and in their supervision of the supply. Clauses (d) and (e) in par. 5 of the statement of claim were not put to the jury in the form of questions, because question 10 was in the nature of a drag-net question to cover negligence not raised by the other questions. The defendant was under a statutory duty to use care not only in respect of the supply of current, but in all matters connected with the service. Moreover, in January 1927,

the leakage had been removed there should have been another H. ©. or A. pection by the Council before again connecting up the supply. ~ an inspection had been made, the cause of the leakage would - _ Rock- have been ascertained. It was the duty of the Council, when there ry Covert an escape of current, to ascertain the cause and prevent a p,, a:

repetition. Although misdirections may be followed by corrections, jury are likely to be misled and there is likely to be a miscarriage justice. The cumulative effect of misdirections, even though corrected, operates unfairly to the parties, and a new trial should be ordered. The misdirection may have confused the jury (Nash v. Cunard Steamship Co. (1); Wilkinson v. Graves (2) ).. On a question _ of law it is the duty of the trial Judge to direct the jury even on a point not raised by a party (Hartney v. Higgins (3); Holford v. Melbourne Tramway and Omnibus Co. (4) ). The onus is on the appellant to show that the misdirection did not cause a miscarriage justice (Anthony v. Halstead (5) ). The fact that some children had tampered with the earth connection would not break the chain 'of causation (Cofield v. Waterloo Case Co. (6); Dixon v. Bell (7): ond's Law of Torts, 7th ed., p. 176). The doctrine of res ipsa

MeGill, in reply. No exception was taken at the trial to the misdirection now raised on appeal. The doctrine of res ipsa loqwitur
does not apply (Wing v. London General Omnibus Co. (8) ). The jury found that every precaution which could be taken was in fact taken (Rickards v. Lothian (9) ). At the trial the respondent should have seen that all necessary questions were put to the jury (Seaton 'y. Burnand (10) ).

_ [Evarr J. referred to Banbury v. Bank of Montreal (11).]

'The following written judgments were delivered : - Gavay Durry C.J, In my opinion the appeal should be dismissed.

R. 597. (6) (1924) 34 C.L.R. 363, at p. 375. (7) (1816) 5 M. &S. 198.

R. (L.) 65, at p. 67; (8) (1909) 2 K-B. 652, at p. 663. (9) (1913) A.C. 263, at p. 273. 1909) V.LLR. 497; 29A.L/T. 112. (10) (1900) A.C. 135.

Srarke, Dixon anp McTiernan JJ. In the Supreme Court Webb and Henchman JJ. considered that there ought to be a new trial because, in their opinion, a misdirection had been given in relation to the tenth question submitted to the jury, and Macrossan J. concurred in ordering a new trial because issues had not been submitted to the jury upon which he thought they might have found for the plaintiff. We think that the misdirection relied upon by their Honors could not have influenced the jury's answers to the remaining questions and we do not think that those answers should be set aside for any of the reasons advanced by counsel. With those answers standing, we think the jury could not, consistently with the evidence, have answered the sixth question or any other question which might properly have been submitted to them in favour of the plaintiff. It appears to us that the defendant's duty can be stated no higher than to abstain from the supply of electrical current to a consumer's installation which it knew, or, exercising reasonable care and skill, ought to have known, was defective and likely to allow an escape of electricity endangering the safety of persons who came upon the premises.

The answers of the jury establish that the defendant neither knew nor ought to have known of any such defect in the installation when the contractor put it in in 1926 or when he repaired it in 1927, because, as they found, it was not then left in an improper condition.

No evidence was given that the defect existed before January 1930 allowing the escape of electricity, which led to Russell's death on 20th February 1930, and we can discover no evidence upon which the jury could find that an electrical undertaker in the circumstances ought reasonably to have taken precautions which the defendant omitted, and by which the defendant ought to have become aware that electricity was escaping.

We therefore think that the grounds upon which the Supreme Court ordered a new trial fail and the appeal should be allowed.

Evarr J. The only ground upon which the judgment entered by Brennan J. was successfully attacked before the Full Court, was the presence of an alleged misdirection of law in a portion of

th a question to be answered by the jury. But no objection bes

aatever was raised by counsel to the direction; indeed the Roox-

ns to be answered by the jury seem to have been arrived at c:pe Commend

agreement between counsel. 'eenin: my opinion, had objection been taken to the criticized portion aaa

charge, the Judge could, and probably would, have made a ent direction or asked "a further or different question " (1).

Adopting the language of Lord Parker of Waddington in Banbury Bank of Montreal (1), 1 am of opinion that it was " manifestly fair and unjust to allow the point to be raised for the first time"

all the circumstances, therefore, the Full Court should not ordered a new trial.

Appeal allowed. tors for the appellant, Walsh & McLaughlin, by Fitzgerald

itors for the respondent, 7. J. Hally, by O'Shea, O'Shea, r& Wadley.

At a glance

Court

Decision date

Before

Source

Judgment (54 paragraphs)