SA Railways Commissioner v Riggs

SA Railways Commissioner v Riggs - [1951] HCA 25 - HCA 1951 case summary — Zoe

[10]

The plaintiffs had the onus of establishing negligence. In Port-Glasgow and Newark Sailcloth Co. v. Caledonian Railway Co. [2] Lord Herschell L.C. said "It is now well-settled law that in order to establish a case of liability against a railway company under such circumstances it is essential for the pursuers to establish negligence. The railway company having the statutory power of running along the line with locomotive engines, which in the course of their running are apt to discharge sparks, no liability rests upon the company merely because the sparks emitted by an engine have set fire to adjoining property. But the defenders, although possessing this statutory power, are undoubtedly bound to exercise it reasonably and properly, and the test whether they exercise this power reasonably and properly appears to me to be this. They are aware that locomotive engines running along the line are apt to emit sparks. Knowing this they are bound to use the best practicable means, according to the then state of knowledge, to avoid the emission of sparks which may be dangerous to adjoining property; and if they, knowing that the engines are liable thus to discharge sparks, do not adopt that reasonable precaution they are guilty of negligence and cannot defend themselves by relying upon their statutory power." This law was laid down by the Exchequer Chamber in the well-known case of Vaughan v. The Taff Vale Railway Co. [3] . The decision in that case was that a railway company authorized by the legislature to use locomotive engines is not responsible for damage from fire occasioned by sparks emitted from an engine travelling on their railway line provided they have taken every precaution in their power and adopted every means which science can suggest to prevent injury from fire and are not guilty of negligence in the management of the engine. It was the duty of the commissioner to observe this standard of care, in the case of locomotive engine, S 50. The appeal turns upon the question whether the facts established that the commissioner failed to do so. The plaintiffs alleged that the commissioner was negligent in that he did not observe that standard of care in respect of the construction and maintenance of locomotive engine, S 50, and in respect of the management of the engine by the crew.

[16]

Mayo J. described the situation which determined the risk of fire incident to the use of locomotive engine S 50 in these words: "Thursday, 22nd January 1948, was a day fraught with great risk of fire throughout the districts with which these proceedings are concerned. The temperature was high. Wind from a northerly direction was blowing at all material times. Vegetation in the districts traversed by the railway track, consisting of grass, stubble and the like herbage had reached its summer state of desiccation. The atmospheric conditions were such as to remove any moisture. This vegetation was highly inflammable tinder. The presence of a pyrogenetic reagent in contact with, or in close proximity to, such dry material would be likely to cause a conflagration. Such was the general situation on the day that locomotive No. 50 of class S was put in commission to draw a train (No. 610 in the working time table then operative), from Gladstone to Adelaide". In the light of this finding it would not be unreasonable to conclude that the spark-arresting apparatus met with considerable success in keeping down the number of fires to three. The distance from Gladstone to Gawler is about 112 miles. If the spark-arresting devices were defective or out of repair, it is surprising that the train did not leave more conflagrations in its trail. The situation was calculated to increase the power of sparks emitted from the funnel to ignite the vegetation near the railway line. However the commissioner did not rely on the run from Gladstone to Gawler as a test of the capabilities of the spark-arresting apparatus, with which engine, S 50, was equipped, to do its work. If the finding that the three fires which occurred before the train reached Gawler were wrong, the plaintiffs' case would collapse. For then, nothing adverse to the proof of the satisfactory character of the spark-arresting apparatus or of its maintenance would remain except the fact that sparks emitted from the engine caused the fire of which the plaintiffs complained. But that is fact not sufficient in itself to saddle the commissioner with liability for the damage which the fire occasioned to Mr. Riggs' property.

[17]

The finding that sparks from the locomotive engine caused the three previous fires must be accepted for the purpose of this appeal. The occurrence of these fires led Mayo J. to qualify his findings on the issues as to the efficiency and state of repair of the spark-arresting apparatus. His Honour said that apart from an inference drawn from repeated escape of sparks from locomotive engine, S 50, he would favour the conclusion that in respect of the provision of a spark-arresting apparatus, there was no negligence. It is necessary to consider whether an inference should be drawn from the previous fires that would be strong enough to countervail against the direct evidence upon which Mayo J. would have decided in the commissioner's favour if he had gone solely on that evidence. For this purpose it is useful to quote the following passage from his Honour's interesting and informative description of the details of the engine which were proved and explained in the evidence, "Brick arch, diaphragm, and wire screen are essential parts of the spark arrestor system. The design is intended to permit no solid matter, too large to pass through the mesh, from being ejected through the funnel. The size of the mesh and deflexion in passage of gases are planned so as not to interfere more than is necessary with the draught. The purpose is to allow the draught to create sufficiently high temperatures for raising steam to ensure efficiency, and yet to preclude, so far as consistent with that purpose the emission of material from the funnel likely to cause damage." The escape of sparks was therefore incidental to the use of the engine. The size of the meshes was a fourth of a square inch. No object which could not pass through these openings could be ejected through the funnel. Objects less than a quarter of an inch in two dimensions could get through the meshes and those objects, igneous matter, would be ejected through the funnel. The size of the meshes was not shown to be bigger than it was necessary to make it in order have an efficient locomotive engine. Then, in regard to the problem of keeping in sparks, Mayo J. made these statements: - "That cinders do emerge from locomotive funnels no matter what system of spark prevention be installed is I think beyond dispute. It is true that some matter is sufficiently glowing to be observed after nightfall. Some sparks escape notwithstanding the Master Mechanics device. The particular kind in this State called floaters or floating sparks are said to follow a course that gives an impression that the glowing matter during part of its transit does not follow a parabolic course but soars". "It is accepted that no design, now used, can eliminate fire risk altogether, even in repair. Sparks can, and do cause fires, whatever the appliance, though as I understand it the standard of efficiency with designs now used represents a great advance in construction." "Unless floating sparks are accounted for by faults in the condition of the spark arrestor, the same must be less than one-quarter inch by one-quarter inch, and probably not much greater in their third dimension. The heat generating capacity may perhaps be accounted for as suggested by Watson (a witness). A piece of coal may leave the fire immediately after being ignited (perhaps soon after coaling or raking the fire-box content). The process of combustion may advance during transit through boiler tubes, the spark arrestor, reaching a maximum when, or after, being ejected. Notwithstanding Watson's opinion such incandescent matter may fall glowing to the ground and still be capable of giving off great heat when it reaches dry herbage. In this manner floaters could escape from a Master Mechanic apparatus, although the apparatus be in undamaged condition. But no uniformity of conditions under which such sparks appear has been ascertained by experiment, nor has any theory been formulated to account satisfactorily for the phenomenon, enabling the risk therefrom (if it be a risk) to be predicted in set circumstances, and further protective measures adopted." The mere fact that sparks escaped from the locomotive engine and caused these three fires does not prove whether, on the one hand, the fact was the sparks were such as it was not reasonably practicable to prevent them from escaping or, on the other hand, the fact was the sparks were of larger dimensions and such as would not have been ejected if the apparatus were not defective in design or out of repair. The emission of sparks by the engine without proof of the nature of the sparks, was not a fact which could countervail against the direct proof of the design of the spark-arresting apparatus or its condition. The fact was consistent with the evidence that the design was satisfactory and that the apparatus was in good condition.

[20]

Passengers and goods in the train and the crew would have been much delayed at Gawler if an examination, capable of ensuring that there was no defect in the apparatus, had been made before it was decided to persist with locomotive, S 50, for the remainder of the journey to Adelaide. That consideration would not have exculpated the commissioner if there were a defect in the apparatus impairing its efficiency: it was negligence to use the locomotive engine if its spark-arresting apparatus were defective. If it was not defective the fact that only a cursory examination was made to detect faults could not be a breach of duty. However, the assumption was made by his Honour that the apparatus was defective, and for that reason sparks were emitted from the engine and set fire to the country at a spot one mile from Gawler in the direction of Adelaide. The ground for the assumption was that the engine caused the three fires before it arrived at Gawler. The negligence found against the commissioner's servants in the train control room amounted to this. An ordinary prudent officer in that department could not think that the cursory inspection which was directed to be made by the crew of the engine was proportionate to the risk portended by the circumstances known to the train control staff. A fact, which was taken to reinforce the proof of negligence, was that their action was all the more unreasonable because they took the risk of permitting locomotive engine, S 50, to leave subject only to the inspection by the crew, although they knew that at Mile End, twenty-four miles from Gawler, there was an emergency locomotive engine available for use, in lieu of the one S 50, attached to the train. The substance of the negligence found against them is that they did not give due consideration to the danger of occasioning damage by fire to the property of adjoining occupiers, if they used locomotive engine, S 50, and negligently omitted to detach it and substitute the emergency engine for it; or if that engine could not be got, they permitted locomotive engine S 50 to take the train to Adelaide, instead of discontinuing the journey by train and providing other means of transportation for passengers and goods bound for Adelaide and intermediate stations. The emergency locomotive engine and locomotive engine S 50 had the same type of spark-arresting apparatus. It is therefore implied in his Honour's view that the precaution ought to have been taken of changing the engine at Gawler, that the Master Mechanics pattern, with which both engines were furnished, was unexceptionable.

[21]

The need for inspecting the spark-arresting apparatus of the emergency engine is not suggested. The conditions under which the emergency engine would have drawn the train were the same as those under which locomotive engine, S 50, drew the train from Gawler to Adelaide. Those conditions were: "the vegetation was highly inflammable tinder", "the temperature was high", the atmosphere was without moisture, and a northerly wind was blowing. Its spark-arresting equipment, even if it were in good repair, could not keep in sparks less than a fourth of an inch in each dimension. The sparks that escaped through the mesh could cause fires. Mayo J. found "sparks can and do cause fires whatever the appliance". None of the conditions which have been mentioned deprived the commissioner of his statutory authority to use a locomotive engine so long as every precaution was taken consistent with its use. The commissioner is not guilty of negligence in using a locomotive engine as he is authorized by the legislature to do. The question then is whether the commissioner was not authorized to use locomotive engine, S 50, because it had already caused three fires and there was a risk that it would cause another between Gawler and Adelaide. It is not the law that where a locomotive engine is used under statutory authority without negligence, there is a limit imposed by the general law on the amount of nuisance it may commit. Lord Halsbury L.C. said in London, Brighton and South Coast Railway Co. v. Truman [1] : "It cannot now be doubted that a railway company constituted for the purpose of carrying passengers, or goods, or cattle, are protected in the use of the functions with which parliament has entrusted them, if the use they make of those functions necessarily involves the creation of what would otherwise be a nuisance at common law". His Lordship further said [1] : "It would be strange, indeed, if the legislature could be supposed to have authorized the railway to commit a nuisance up to a certain point", and [2] "the Railway Acts were assumed to establish the proposition that the railway might be made and used whether a nuisance were created or not". The test of whether it was lawful to use locomotive, S 50, to take the train to Adelaide was whether the commissioner observed the standard of care laid down in Vaughan v. The Taff Vale Railway Co. [3] . If he observed that standard of care it was not unlawful to use the locomotive engine, S 50, because the condition of the vegetation, the weather, the wind and the atmosphere, matters beyond the control of the commissioner, would contribute to the risk that sparks emitted from the locomotive engine, as a necessary consequence of using it, would cause fires. Further, if he took all reasonable precautions within his power, consistent with the use of the locomotive engine, he was not precluded from using it, because sparks emitted from the funnel had caused three fires. Those fires are relevant in so far as they may throw light on the issue whether he took all reasonable precautions. But the inferences which might be drawn from them are equivocal and cannot prevail against the direct proof given in this case that the engine was fitted with an efficient spark-arresting apparatus and that it was at all material times in good repair. There is no proof that the fire was caused by negligent management of the engine by the crew.

[25]

In this case it seems that his Honour would have believed the expert and other witnesses for the appellant commissioner but for the fact that this locomotive S 50 had caused four fires that day; whereas his Honour understood it to be conceded, although it was not proved by evidence at the trial, that no other locomotive operating on that day on that line and in that vicinity caused a fire. Mr. Hannan for the appellant commissioner claimed that there was no such concession; but Mr. Smith for the respondents did not agree with this. In the circumstances I think we should take it that the concession was made, but, without further evidence as to the extent to which other locomotives were used, and where, in the particular locality, they were used, I do not think it warrants a finding that the spark-arrestor, or some other part of the locomotive S 50, was out of order, with the result that more sparks were emitted than would otherwise have been emitted; or that it warrants a finding that the locomotive was not properly managed when the fires occurred, and so was responsible for them, and more particularly for the fourth fire, in respect of which the action was brought. It is true that his Honour was not so greatly impressed by the appellant commissioner's witnesses that he felt obliged to believe them in any event: it is clear that he thought it was more likely that their testimony was unreliable than that the locomotive if in good order and properly managed could cause four grass fires, even in the exceptional conditions prevailing, when no other locomotive caused a grass fire. But, in the absence of further evidence of the opportunities that other locomotives had of causing grass fires it cannot, I think, be held that it was probable that a change of locomotive after three fires had occurred would have prevented the fourth fire. No other locomotive may have travelled more than a short distance, or about the middle of the day, or through a part of the country as dry as that through which locomotive S 50 travelled. It is important to remember that locomotive S 50 travelled over 130 miles on that journey and caused no grass fires during half of it.

[32]

The statutory authority which the defendant had for using a locomotive engine at the time and place in question absolves him from liability under the rule in Rylands v. Fletcher [1] , for the escape of fire from his engine. But the Act must be construed as authorizing the use of such engines in a proper manner only, and the plaintiffs are therefore entitled to succeed if the injury suffered was caused by a failure on the part of the defendant or his agents "to use reasonable care to do no unnecessary damage" by the use of the engine: East Fremantle Corporation v. Annois [2] . If the injury to the deceased's property was caused, not by negligence, but by the ordinary and normal use of the railway, the defendant is under no liability: Canadian Pacific Railway v. Roy [1] . The onus of proving negligence rests upon the plaintiffs: Parker v. London and N.E. Railway Co. [2] ; Sellwood v. London M. & S. Railway Co. [3] ; cf. Cox Bros. (Aust.) Ltd. v. Commissioner of Waterworks [4] . Both the onus of proof and the nature of the defendant's obligation of due care were the subject of some observations by Lord Herschell in the Scottish case of Port-Glasgow and Newark Sailcloth Co. v. Caledonian Railway Co. [5] . The relevant passage was quoted by Isaacs J. in Fullarton v. North Melbourne Electric Tramway and Lighting Co. Ltd. [6] , and its importance warrants its repetition. Lord Herschell said: "It is now well settled law that in order to establish a case of liability against a railway company under such circumstances, it is essential for the pursuers to establish negligence. The railway having the statutory power of running along the line with locomotive engines, which in the course of their running are apt to discharge sparks, no liability rests upon the company merely because of sparks emitted having set fire to adjoining property. But the defenders although possessing this statutory power, are undoubtedly bound to exercise it reasonably and properly, and the test whether they exercise this power reasonably and properly appears to me to be this: They are aware that locomotive engines running along the line are apt to emit sparks. Knowing this they are bound to use the best practicable means according to the then state of knowledge to avoid the emission of sparks which may be dangerous to adjoining property; and if they, knowing that the engines are thus liable to discharge sparks, do not adopt that reasonable precaution they are guilty of negligence, and cannot defend themselves by relying upon their statutory power. About the law, as I have expressed it, I do not think there is any controversy".

[38]

Engine S 50 was equipped with a type of spark-arresting mechanism known as the Master Mechanics front end. Its design the learned judge found to be "in general use for Australian conditions and found satisfactory", and there was uncontradicted evidence from experts on both sides that it is as good as could be adopted. The plaintiffs' expert witness, Watson, who searched diligently for reasons to criticize engine S 50, said: "I think the Master Mechanics principle is the best that can be done I wouldn't recommend a better spark-arrester than Master Mechanics". Two essential elements in such a device are a back plate and a wire screen. Cinders and other hot or burning particles are projected against the back plate, with the result that they tend to break up and, in any case, fall down to a bed which extends beneath the boiler pipes to the smoke-box at the extreme front end of the engine. If carried by the draught to the smoke-box, they may rise to the smoke-stack, but the screen is interposed to prevent the escape of large cinders or sparks. The screen has a square mesh of one-quarter inch dimensions, and, if it is in good order, only particles small enough to pass through that mesh are ejected through the smoke-stack. Some variations in the type of screen have been attempted, one variant, known as the draftac, having a rectangular mesh of three-sixteenths inch by three-quarters inch. Watson in his evidence seemed at times to have a preference for the draftac mesh, but its openings are of greater area than that of the quarter-inch mesh, and Watson found nothing to criticise in the adoption of the latter. He said: "I have no criticism of the wire-material or thickness. One-quarter inch mesh, if all other things are correct, seems to do the job. It would be safer if it were smaller, but there are other troubles to be handled". The other troubles he referred to he explained later, when he said: "The best mesh is one small enough to stop dangerous sparks and at the same time big enough to allow the engine to steam properly It is no use stopping sparks if you stop running your engine". He conceded that, taking engine S 50 as he found it on inspection some time after the relevant date, he had no criticism to make of the mesh; and later he said: "The wire satisfies me". Wilkinson, the locomotive superintendent, described the netting as "The best possible mesh for our South Australian conditions", though other meshes had been investigated from time to time.

[40]

The learned judge made no finding that the defendant had failed to take any particular precaution which he should have taken in relation to the spark-arresting equipment of engine S 50. But for one feature of the case, his Honour, as he expressly said, would have favoured two conclusions: - (1) that the spark-arresting equipment was not shown to be of such specifications and design as to involve a breach of duty to adjoining property owners, and (2) that the condition of the engine and its equipment was not faulty, by reason of lack of repair or the like, in any detail that would permit of the escape of sparks or fire-causing material that would otherwise have been held back by the mechanism. If he had finally reached these conclusions, it must have followed, from the principle above stated, that the defendant should succeed in the action. But the feature of the case which alone led his Honour to refrain from making absolute findings to the effect indicated was that the fire of which the plaintiffs complained had been preceded by three other fires which broke out during the same journey of engine S 50, and his Honour found on a balance of probabilities that all four fires were caused by the emission of sparks from that engine. These sparks may have been either larger or smaller than the mesh of the screen, and, as I understand the judgment, his Honour's view was that (1) if sparks larger than the mesh caused the fires, the defendant was guilty of negligence because the conclusion would be inescapable that there were openings in the equipment that needed repair or some kind of attention, and (2) if sparks smaller than the mesh caused the fires, having escaped despite the fact that the equipment was in perfect order, the defendant was guilty of negligence because when the engine reached Gawler, the last place at which the train stopped before the fourth fire occurred, the defendant's officers knew of the three previous fires, they knew that those fires had possibly been caused by engine S 50, they therefore should have inferred that the engine was or might be, for some reason not apparent, peculiarly liable to discharge such inflammatory matter, and they should not have allowed the engine to proceed. It is necessary to consider each of these alternatives.

[45]

While recognizing the uncertainty that exists as to how or when sparks emerge from engines properly equipped with spark-arresting devices, his Honour was apparently influenced by the fact that he regarded it as "conceded, if not directly proved, that no fire was started on that route (the italics are his) during 22nd January 1948, except coincident with the passing of S 50". But, even assuming (although it has been denied) that this fact was conceded by counsel for the commissioner, it affords no basis for an inference which would warrant the rejection of evidence, otherwise considered by his Honour to be worthy of acceptance, to the effect that the spark-arresting equipment of S 50 was satisfactory in design and condition. For all the evidence showed, other engines may have started many fires on other routes on the day in question; the evidence (Exhibit D35) showed that during the same summer a great number of fires were reported after the passage of various engines. But even if no engine in South Australia caused a fire on that day, engines may have ejected many sparks which by good fortune did not cause fires. Moreover, the fact that S 50 emitted fire-causing sparks on four occasions in a journey of 112 miles, taking more than four hours, is quite consistent with the sound condition of the spark-arresting devices, having regard to the impossibility of accounting for the ejection of sparks from an engine properly equipped. If the spark-arresting mechanism had been in fact out of order so as to emit sparks which it should have kept back, one would have expected a more or less constant stream of sparks throughout the journey; indeed Watson, when dealing with the possibility of a hole in the diaphragm, agreed that if there were such a hole you would get an almost continuous succession of inflammable sparks going out into the atmosphere. Wilkinson also agreed with this. Yet there is no suggestion in the evidence that such a thing happened. The truth is, I think, that his Honour failed to make due allowance, not only for the vagaries of the best-equipped engines in regard to the ejection of sparks, but for the fact that on a day of extreme midsummer heat, when the herbage through which S 50 passed was as dry as tinder, the occurrence of four fires caused by sparks from that engine does not necessarily indicate the discharge of sparks in abnormal quantities or of a size larger than the mesh of a screen in perfect condition.

At a glance

Court

Decision date

Before

Source

Judgment (55 paragraphs)

Parties