The appellant is the statutory owner of the railway-line in question. It runs along Fussell Street and across Honey Street to No. 2 Quay at Port Adelaide. It is a single line consisting of two parallel rails running generally north and south and being 5 feet 3 inches apart. This line was constructed very many years ago - about 1879 - and the Corporation of Port Adelaide consented in writing to its construction in and over the streets mentioned. In 1922 the Corporation wood-blocked the line; that is, put in as roadway surface wooden blocks between the rails and for a distance of 18 inches on the outer sides of them. The Corporation did this at the request of the Commissioner and was paid for it by him. As then laid the blocks were flush in height with the rails, but running parallel with the rails, and along their inner sides there was a rounded groove in the blocks for the purpose of allowing the flange of the railway carriage wheels to run free. At the time these blocks were laid the groove was about 2 inches wide by 1½ inches deep. That was safe for vehicles so long as the groove maintained its dimensions. But it gradually enlarged, as might have been expected, from the traffic passing over and along the line. The learned trial Judge finds that at the time of the accident it had become a depression extending some distance along the rail, and some 7 inches in width, sloping from the level of the road to the inner side of the rail, where it was about 2 inches in depth. The effect was, as the learned Judge describes, to leave the inner side of the rail standing as a ridge in the roadway. He adds that the paving was not worn to any appreciable extent on the outer side of the rail, or in the immediate vicinity, where a guard or check rail had been laid along the inner side of a slight curve in the line. There can be no doubt that the groove was the weak spot and led to the creation and existence of the dangerous depression and the consequent dangerous, ridgelike condition of the rail, which occasioned the respondent's injuries.

In my opinion the appellant is responsible. Shortly stated, the ground on which I regard him as liable is that, having for the purposes of working the railway caused to be constructed on the road a wood surface having a groove at a distance from the rail, he had thereby caused to be constructed for railway purposes an artificial work which, unless properly maintained, was likely to become and did become a danger to public traffic on the highway. The Commissioner had power to maintain the work properly so as to prevent the danger, but he neglected to do so and the respondent was thereby injured.

For the appellant two main arguments were presented: one was that the negligence complained of was non-feasance; the other was that, if there were liability on anyone, the Railways Commissioner was free because the work referred to was done by the Corporation and the only legal duty on the railway authority was to restore the street to its prior condition, reference being made to sec. 53 of the Act No. 7 of 1847.

In Woollahra Council v. Moody[1] I expressed my opinion as to liability for non-feasance. The law, as I understand it, is that road authorities are not, in the absence of express enactment to the contrary, liable for "mere non-feasance," as in Sydney Municipal Council v. Bourke[2], but that non-repair of an artificial work which, if left unrepaired, is likely to become and does thereby become a danger to persons using the highway is not mere non-feasance, and is actionable where damage ensues. Other authorities are there cited, including one which I think is very much in point here. I refer to Shoreditch Corporation v. Bull[3]. Notwithstanding the diverse legal characters of the appellant in that case - as sewer authority and highway authority - the House of Lords held that the person who interferes with the normal condition of a road is responsible for it until its return to a safe condition. That principle applies, of course, to the case where the person sought to be made liable had in the first instance lawful authority to interfere with the normal condition of the road, and it assumes that he had power to restore it to its former condition and, if acting under parliamentary authority, to restore it consistently with the exercise of the authority conferred.

It was assumed in the argument for the present appellant that the Railways Commissioner had restored the road to its normal condition, or, in other words, had made good the damage. But I do not so consider. A groove was doubtless necessary for the proper construction of the line and the proper working of the railway. But it cannot be said that the road was restored to its prior normal condition as a highway; that is, of course, restoration consistent with the presence of the railway. A danger spot was created in a manner certain, unless properly maintained, to develop into active peril as a natural consequence. That could have been averted by the common expedient of a check rail, which would have permitted the required groove to exist and yet allowed the blocks or other road material to be placed in juxtaposition to the check rail, as it was to the outer side of the rails at the time. The alternative was to watch and to repair either by subsequently inserting the check rail or otherwise, when the groove enlarged. That was all well within the statutory authority of the Commissioner.

Now, I do not desire to express any opinion as to the full extent of sec. 32 of the South Australian Railways Commissioners Act of 1887 (No. 414) in competition with sec. 154, and I should add sec. 156, of the Municipal Corporations Act of 1923 (No. 1558), or any opinion as to whether the municipality would be free from responsibility in this case. That is not necessary to determine. Nor must I be understood as affirming or denying a proposition so large as necessarily to involve liability of the Railways Commissioner in the event of the roadway between the rails becoming dangerous by reason of some circumstance not connected with or referable to the constructional arrangements or the operation of the railway and its adjuncts. In the present case one of the links in the chain of essential circumstances is the groove, which was constructed for railway purposes, and to which can be referred the natural likelihood and the actual consequence of the road surface becoming dangerous and the adjacent rail being a public nuisance. As to the Commissioner's power to avert the danger, it is beyond dispute that the railway itself and its appurtenances are vested in and under the care and management of the appellant. Act No. 414, by sec. 5, incorporates by reference all the powers contained in No. 7 of 1847. I entertain no doubt that sec. 16 of the Act of 1847, in its last two clauses preceding the proviso, gives ample power to the Commissioner to do by way of alteration or repair what he could do for railway purposes in original construction. He could, therefore, have restored the groove or flange-space to its original dimensions, and he could, in order to preserve it, have laid down a check rail, which would then have placed the highway in its normal state of safety compatibly with the effective construction and working of the railway-line. The rails rest on sleepers extending over the whole width of 5 feet 3 inches, and there can be no doubt the Act enables the Commissioner to take up the surface when required to renew or readjust the construction works under it. Similarly as to the present case.

Some stress was laid on sec. 25 of the Act of 1850 (No. 1), the original authority to construct the line. That section required the written sanction and approval of the proper authorities to lay down rails over and along the roads. The necessary consent was, as I have said, obtained, and, in my opinion, consent there means a consent to construct on the known constructional and repairing terms of the Act, which, by sec. 3, incorporated the Act of 1847. Having the power, there was, in the circumstances, the duty, as established by Geddis v. Proprietors of Bann Reservoir[4] and Lagan Navigation Co. v. Lambeg Bleaching, Dyeing and Finishing Co.[5].

We have since the argument been referred to a decision of the learned Chief Justice, Sir George Murray, in City of Port Adelaide v. South Australian Railways Commissioner[6], in which his Honor held that, in the absence of the consent of the City Corporation to make a railway on the Elder Road, the making of a railway there was, by reason of sec. 25 of the Act No. 1 of 1850, illegal. In that case reference was made to a prior decision of the Supreme Court of South Australia, Barker v. City of Adelaide[7], giving a very large interpretation to the Municipal Corporations Act of 1890, vesting the fee simple of public streets in the corporation of the municipality. The Legislature has, since then, repeated its enactment. Beyond that circumstance, which, to my mind, after reading Barker's Case[8], makes it especially desirable to refrain from unnecessarily attempting to adjust the vesting sections of the respective authorities, I do not think the decision in the recent case affects the present appeal. Nor does sec. 50 of Act No. 1 of 1850, to which we have also been specially referred.

In my opinion, for the reasons I have stated, the judgment of Napier J. should be affirmed, and this appeal dismissed.

This action was brought against the Railways Commissioner of South Australia for negligence in the maintenance of a railway whereby the plaintiff was injured. It relates to the railway laid along the public streets which is so marked a feature of the streets between Adelaide and Port Adelaide, where bells ring on the locomotive engine to warn the public of the train's approach. It is clear that the roadway was not in a proper state of repair for public use and that the accident happened to the plaintiff as a result. The only question left for us is as to the liability of the Commissioner to maintain the roadway at all - was he "under any legal obligation to repair" the roadway between the rails (see ground 2 of the notice of appeal)?

The facts have been clearly stated by the learned Judge of first instance (Napier J.). It appears that in 1922 the municipal council, at the request and at the expense of the Commissioner, paved the roadway between the rails with wooden blocks on a concrete foundation, flush with the rails, except that a narrow groove was left along the rails for the flange of the wheels. As a result of use of the roadway with the rails, a sloping depression had been formed in the blocks about 7 inches wide; the wheel of the lorry which the plaintiff was driving entered the depression, was caught and skidded along the rail; the cart collided with a truck standing on the railway, and the plaintiff was thrown out.

The facts having been grasped clearly, it seems to me that our first business is to study the relevant Acts and ordinances, and to find in particular the duties and the powers of the Commissioner as therein prescribed; without this study it is a dangerous course to apply English or Australian decisions under Acts which are different, or to base our decision on the common law doctrine as to nuisance.

It is common ground that the Commissioner had all the duties and powers which were conferred in the first instance on a London company under a special Act (Ordinance No. 1 of 1850). In addition to the power to construct a railway according to plans deposited, the Ordinance (sec. 25) gave power to the Company to lay down rails to any wharf if the owner should consent thereto (that is to say, if the owner of the wharf should consent to rails being laid down to his wharf); but it was provided that no such rails should pass over any road without the written sanction and approval of the proper authorities. The rails in this case were laid down with this consent, and with this sanction and approval.

The Railway Clauses Consolidation Act of 1847 (No. 7) was incorporated with this special Act. It contained a section (sec. 41) as to the crossing of roads - that there should be a bridge under or over the railway, and that the bridge, with the immediate approaches, and all other necessary works connected therewith should be executed "and at all times thereafter maintained at the expense of the Company." But this is not a case in which a bridge is concerned.

Under sec. 22 of the special Act, the Company is empowered to make and maintain the main line of railway, branches and works, and to enter upon and take over such of the lands as may be necessary for the purpose. But there is a section which seems clearly to cover auxiliary lines such as the line in question - sec. 31: "In order to guard against accident, and to ensure that the railway shall be properly maintained ... the Company shall be bound at all times duly to maintain the railway, branches, and whole undertaking, in good and efficient repair and working condition." The Governor is also empowered to direct any repairs at the cost of the Company.

But this is not all. By the South Australian Railways Commissioners Act 1887 (there were then three Commissioners) it was provided, not only that the Commissioners should construct all lines of railways and works already authorized and to be authorized, but also that "it shall ... be the duty of the Commissioners to supervise and see that the railways and the accommodation thereto" (sic) "are maintained in a state of efficiency" (sec. 45). Now, I do not like to dogmatize as to the meaning of the unusual words "the accommodation thereto": but I can see no reason for doubting that this section imposes on the Commissioners (or Commissioner) the duty of maintaining, not only the actual rails but the space between the rails. We are not justified in treating the "rails" as being the "railway": the ballast for the railway and the sleepers are part of the railway; and from the nature of the case a duty to maintain the rails only would not be effective. Unless there are clear words to the contrary - and there are none - we should treat this provision as involving what would be necessary for the governing purpose, the purpose of the railway. Could it be reasonably argued that the Commissioner has no power to open the earth between the rails to put in new sleepers? As was stated in Duke of Northumberland v. North-Eastern Railway Co.[9], "railway is not synonymous with rails, and cannot be construed as meaning only a particular line of rails. Railway means far more than that. It includes the land taken and used for railway purposes."

If sec. 32 of the Act of 1887 means that the whole of the railway land is vested in the Commissioners, the position is still stronger for the respondent - "All railways and rolling-stock heretofore constructed or acquired, or which may hereafter be constructed or acquired, by or on behalf of the State, and the piers, wharves, jetties, stations, yards, and buildings connected or used therewith respectively, or forming or reputed to be part or parcel thereof respectively, together with the land over or upon which the said railways, piers, wharves, jetties, stations, yards, and buildings have been or may hereafter be constructed or erected, and the land included within the boundary fences of any of the said railways, and all lands outside such fences which may have been acquired by the Commissioners of Railways under any Act authorizing the taking of land for railway purposes, and the inheritance thereof in fee simple, and all the powers, functions, obligations, duties, immunities, and rights, by any Act, or portion of an Act, not hereby repealed, conferred or imposed upon or vested in the Commissioners of Railways, shall be and the same are hereby transferred to and invested in the Commissioners for the purposes of this Act."

The only doubt which I feel as to the effect of this section is that it may possibly be held not to apply to railways along streets. There is no express exception of such railways; and there is nothing in the nature of the case which would make it improbable that Parliament should vest the whole railway bed in the Commissioners. I do not ignore the provision contained in sec. 154 of the Municipal Corporations Act 1923 - that "the fee simple of every public street in the municipality shall be vested in the corporation of such municipality"; and the provision in sec. 156 that "all main roads ... and other things erected thereon or affixed thereto, not being the property of any other person or company, shall be vested in, and be under the care, management, and control of the corporation." This Act is a consolidation Act; and it expressly repeals certain Acts mentioned in the schedule "to the extent therein mentioned" (sec. 3); but it does not purport to repeal sec. 31 of the Ordinance No. 1 of 1850, or sec. 32 or sec. 45 of the Act of 1887; and if these sections have the force which I suggest, there appears to be no ground for saying that this general Act as to municipal corporations repeals the special Acts of 1850 and 1887 - Generalia specialibus non derogant.

But even if land on which the railway runs should be regarded as not vested in the Commissioner - even if the Commissioner is to be regarded as merely having some right in the nature of an easement or licence over land vested in the corporation - there seems to be no possible ground for saying that the duty of maintenance, imposed by sec. 45 of the Act of 1887 as well as by sec. 31 of the Ordinance No. 1 of 1850, has ceased. My opinion is that there is a much simpler answer to the question before us than has been given - an answer which is based on the words of the relevant Acts themselves; and that there is no need for us to base our decision on the doctrine of nuisance or on the cases cited from the English and Australian and State reports, and that we have no right to do so. This leaves open any question which may arise as to the duty of the corporation as to its roads. It has to be borne in mind that in this case the corporation laid the blocks, but at the request and expense of the Commissioner.

The view which I have expressed to the effect that we must exhaust the effect of the Acts before we resort to the common law doctrine of nuisance is confirmed by the decision of the House of Lords in Sharpness New Docks and Gloucester and Birmingham Navigation Co. v. Attorney-General[10]. There a city corporation sought a declaration that a railway company was bound to maintain and keep in repair certain bridges which carried highways over a canal, including approaches on either side. The Court of Appeal had declared that the company was so bound as to the bridges, to the extent "sufficient to bear the ordinary traffic of the district which might be reasonably expected to pass along the highways"; but the House of Lords reversed the judgment, pointing out that under the special Act the duty to repair was confined to the condition which the Commissioners at the time of construction (1812) had determined. As Viscount Haldane L.C. said[11]: - "Authorities in cases of construction of statutes of this nature can rarely be of much value... The materials for answering questions of interpretation ought primarily to be sought for within the four corners of the Act of Parliament, and not in what Judges, however eminent, have said either about other statutes, the language of which is different, or about the common law, which is superseded by the code expressed... The question ... is, there being a provision in the statute, what obligation its words impose." Lord Dunedin said[12]: - "Where the statute deals with the subject its provisions form a code on that subject, and cannot be added to by what has been called a common law doctrine. I am unable to agree with the dictum of Fletcher Moulton L.J. in the case of Hertfordshire County Council v. Great Eastern Railway Co.4(1909) 2 K.B. 403, at p. 412., which is approved of in the judgments in the Court of Appeal in this case, and which in my opinion is too broadly expressed, as it would impart a common law obligation running side by side with the expressed statutory obligations"; and Lord Atkinson agreed. Lord Parker of Waddington also agreed, saying[14]: - "It is one thing to rely on a common law principle where a statute is silent. It is quite another thing to invoke a common law principle in order to impose an obligation different from or in addition to the obligations which are defined by the statute as those subject to which a company may interfere with a highway." Lord Parmoor also agreed[15], saying that the doctrine of Lord Moulton in the Court of Appeal - to the effect that where the statute is silent on the subject there is prima facie, without express words, an obligation on the company to keep in repair its substituted work - was "setting aside the statutory obligation and substituting a different one in its place... The function of the Courts is simply to construe a statute so as to give effect to the will of the Legislature." In other words, the common law as to nuisance and cognate subjects is not applicable to a position which is covered by a statutory code. Both laws cannot be applicable to the same subject at the same time. The result on a common law basis may happen to be the same in a particular case as the result on the statutory basis; but the application of the common law under such circumstances as the present is, I venture to think, an error which is sure to bring its Nemesis.

In my opinion, therefore, the judgment of the learned primary Judge is right, by reason of the relevant Acts as cited to us. My only hesitation arises when I read the recent judgment of Murray C.J., handed up to us after the argument of this case (City of Port Adelaide v. South Australian Railways Commissioner[16]). This judgment goes elaborately into the history of these railway Acts, showing that there is much more relevant legislation on the subject in South Australia than counsel in the case before us thought necessary to mention. It is one of the perils incident to our functions as a Court of appeal on State laws that we are dependent for knowledge of the relevant laws on the arguments of counsel; and it may be that there is some section in some Act of which we are not informed, which puts a totally different complexion on the relations of the Commissioner to the public roads. But, subject to this hesitation, I concur in the opinion that this appeal ought to be dismissed.

This case, I agree, depends upon the proper construction of the relevant statutes of South Australia (Sharpness New Docks &c. Co. v. Attorney-General[17]; Attorney-General v. Great Northern Railway[18]; Attorney-General for Ireland v. Lagan Navigation Co.[19]). They have been set out in some detail by my brother Higgins, and I do not repeat them. Suffice it to say that the railway in question here was constructed across a highway under the sanction of those Acts and under their sanction it is maintained. Under these Acts also the Commissioner of the South Australian railways has full authority to do all acts for maintaining, altering or repairing, and using the railway. The wooden blocks between the rails on the highway crossing had worn down and so had allowed the rails to project above the level of the road. A trolley driven by the plaintiff was caught by the rails and the plaintiff thrown out and injured. The Commissioner contends that it was not his duty to keep the crossing between the rails in repair; in my opinion, it was his duty to keep the crossing in a proper and reasonable state for the passage of vehicles across the rails. Such cases as Geddis v. Proprietors of Bann Reservoir[20] and Oliver v. North-Eastern Railway Co.[21] support that view and, I think, are decisive of the existence of that duty. The judgment of Napier J. ought to be affirmed.

Solicitor for the appellant, A. J. Hannan, Crown Solicitor for South Australia.

[1] [1913] HCA 21; (1913) 16 C.L.R. 353.

[5] (1927) A.C., particularly at pp. 244, 249.

[9] (1893) 95 L.T. Jo., at pp. 181-182 - June 24.

[13] (1909) 2 K.B. 403, at p. 412.

[14] (1915) A.C., at pp. 669, 670.

[15] (1915) A.C., at pp. 672, 673.