South Australian Railways Commissioner v Barnes [1927] HCA 48;

South Australian Railways Commissioner v Barnes [1927] HCA 48; - HCA 1927 case summary — Zoe

[5]

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.

[10]

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.

[24]

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.

At a glance

Court

Decision date

Before

Source

Judgment (33 paragraphs)

South Australian Railways Commissioner v Barnes [1927] HCA 48; (1927) 40 CLR 179 (22 November 1927)

Parties

Legislation Cited (2)

Cases Cited (1)