The provisions of the Wrongs Act 1915 are substantially the same as those of the Imperial Act commonly known as Lord Campbell's Act. It is indisputable that under those provisions the death of the husband or father under certain conditions is the cause or basis of the action (Union Steamship Co. of New Zealand v. Robin[1]). The action is in truth an action to recover damages for the injuriously affecting the interests of the dead man's family. It arises partly from the death and partly from a combination of circumstances pecuniary or other with which the person whose alleged wrongful act caused the death has nothing to do (per Bowen L.J. in The Vera Cruz [No. 2][2]). In British Electric Railway Co. v. Gentile[3] Lord Dunedin, delivering the reasons of the Judicial Committee, said: "A suit brought under the provisions of that Act" (Lord Campbell's Act) "is not a suit for indemnity for damage or injury sustained by the plaintiff by reason of the operations of the defendants." See also McColl v. Canadian Pacific Railway Co.[4], referred to by my brother Isaacs during the argument. The authorities to which I have referred seem to me to warrant the proposition that the action brought by the respondent is not an action for losses caused by sparks from railway engines but is an action for losses caused to the family of the deceased by his death, in which it will be necessary for the plaintiff to establish that the death was caused by the wrongful act of the appellants, and in which the measure of damages is different from that which would be applied in the case of an action by a person injured in his person or property by reason of the wrongful emission of sparks from a railway engine.

In this case we assume that the question before us is to be determined as it would have been immediately before the statute consolidation of 1915. The question is whether Part III. of the Wrongs Act 1915 is to be read as subject to the provisions of sub-sec. 2 of sec. 183 of the Railways Act 1915. That is to say, the problem is whether a proceeding of this character falls within the words of exception in sec. 183 of the Railways Act, namely, "actions for losses caused by sparks from railway engines." The Supreme Court has answered the question in the negative. We agree with that view, but for reasons we shall state.

Since the railways section is being interpreted for the first time, no previous case can govern the result. But there are several decisions of supreme authority which very distinctly point the way. They are Seward v. Owner of the Vera Cruz[5], British Electric Railway Co. v. Gentile[6], Union Steamship Co. of New Zealand v. Robin[7] and McColl v. Canadian Pacific Railway Co.[8]. When the relevant reasoning in these cases is analysed, it is found that the Privy Council proceeded to inquire whether, having regard to the special nature and attributes of the proceeding under the Wrongs Act (or its equivalent), the terms of the other Act could, on one ground or another, on recognized principles of construction, be properly considered as including that proceeding. Following the lines of investigation that we there find, we arrive at the conclusion we have stated on two grounds, very closely allied to each other in this case: the first is that the words of exception are not in themselves apt to include such an action as the present; the second is that, even if on literal construction the words of exception extend so far, the maxim Generalia specialibus non derogant applies to exclude such an action.

As to the first ground, we think that the words, comprehensive as they are, do not naturally include such an action as this. We are not able to confine the words "actions for losses caused by sparks from railway engines" to losses of property. It must be observed that the phrase "actions for losses" means "actions for losses sustained"; the word "losses" being in no wise a limitation of "damages" - an expression which refers to a claim for money to be recovered. If a surgeon lost by sparks a house, a field of oats, a flock of sheep and a limb, the latter misfortune precluding him from practising his profession, all these results would legally be "losses." He would, by the failure of the defendants to fulfil their duty of care to him, have lost what he was entitled to as of right. Even compensation, so far as it can properly be given, for pain and suffering, represents some reparation for the freedom from pain and suffering to which the plaintiff is entitled (see In re Polemis and Furness, Withy & Co.[9]). In Admiralty Commissioners v. Owners of Steamship Amerika[10] Lord Sumner observed: "Injury is the gist of any action of negligence; if the negligence does no damage, no action lies." We see no reason, therefore, for the suggested limitation. So far also as directness of result is concerned, we do not consider that a discrimen. The pecuniary loss arising from the surgeon's inability to practise his profession, is not more direct than a widow's loss of an annuity to which she was entitled during her husband's life.

The first ground upon which we exclude this class of action from sec. 183 of the Railways Act, is that naturally and primarily the words "actions for losses," &c., mean actions against a defendant for some injuria towards the plaintiff, some breach of an obligation or duty to the plaintiff, whereby the plaintiff has lost something to which he can assert a claim as of right. "Loss," the subject of an action to recover damages, primarily implies previous title of some sort. The pecuniary losses for which damages are recoverable in an action of this description are, however, measured by a different standard. "Reasonable expectation" is the standard. This is definitely settled by the highest tribunal in Royal Trust Co. v. Canadian Pacific Railway Co.[11]; the citation of other cases being unnecessary, except perhaps Franklin v. South-Eastern Railway Co.[12], which contains the fundamental reasoning. But this difference of standard is material for the present purposes, because it is essential to observe that, in order to found a cause of action under the Wrongs Act, the same necessity to establish the appropriate damages exists as in an ordinary case of negligence (Duckworth v. Johnson[13], Kerry v. England[14], The Vera Cruz [No. 2][15], The Circe[16], Clark v. London General Omnibus Co.[17], Barnett v. Cohen[18] and Nunan v. Southern Railway Co.[19]).

Moreover, the cause of action does not connote any failure of obligation or duty by the defendant to the plaintiff. Indeed, as shown by the authorities referred to, this type of action is sui generis. Secs. 14 to 20 inclusive of the Wrongs Act, as a matter of public policy, enter upon an entirely new region of the law, and make a sort of code specially fitted for the case contemplated by the legislation. The enactment selects certain classes of persons, creates in their favour a novel right of action, requires a particular representative plaintiff, except in named circumstances, prescribes a special measure of compensation, which it qualifies in certain respects, regulates the nature of the tribunal, provides for apportionment where individual interests exist, makes some specific pleading provisions, and sets a distinctive limit to the time for taking proceedings.

These considerations operate in two ways: - They show, as we conceive, that as a matter of construction the general words of exception in sec. 183 do not properly include such a proceeding as an action of this character. They also show that even if it be assumed that the words of exception are broad and general enough in their literal sense to embrace actions of this nature, yet that, by the application of the maxim quoted, they should be read down so as to exclude such actions.

For the first alternative view we would refer for method of reasoning and for analogy, to the judgments in all the cases referred to, including the passages quoted at p. 132 of McColl's Case[20]. For the second alternative view, we would cite the judgments of Lord Selborne L.C. and Lord Blackburn in Seward v. Owner of the Vera Cruz[21]. This alternative, in our opinion, disposes of any possible contention based on the bare and rigid connotation of the words of exception. For the principles and method of applying this solvent, we refer to Bank Officials' Association (South Australian Branch) v. Savings Bank of South Australia[22], and with special reference to the passages there quoted from the judgments of Viscount Haldane and of Viscount Cave in Blackpool Corporation v. Starr Estate Co.[23]. The "individual" case of Lord Haldane is, in our opinion, specially legislated for in the Wrongs Act, and is not affected by the mere general provisions of the Railways Act.

Ample effect can be given to these general provisions without varying the scheme created by the special provisions of the first-mentioned Act. The later enacted legislation, if held to supplant the procedural course so far as marked out, by the Wrongs Act, would or might materially affect, if not destroy, some requirements which Parliament apparently thought very substantial and necessary to secure justice.

I am of opinion that the order of the Full Court of Victoria dismissing the appeal from Judge Woinarski must be affirmed.

My view of the position is that an action under Part III. of the Wrongs Act 1915 (which enacts Lord Campbell's Act of 1846) does not come within the exception contained in sec. 183 (2) of the Railways Act 1915. Sec. 183, after forbidding any action against the Commissioners being brought in any Court of Petty Sessions, prescribes that whatever the amount, &c., involved, any action against the Commissioners must be brought in the County Court - "except actions for losses caused by sparks from railway engines"; and such excepted actions have to be referred to arbitration. In my opinion, an action under Lord Campbell's Act, being a special statutory action, designed to give, not a right of action to the victim of the accident, but individual rights to the widow and children to sue the wrongdoer for the damage incurred by them respectively by the death of the breadwinner, is not covered by the description of "action for losses caused by sparks from railway engines." The fact that in the chain of antecedent conditions the death of Speed would not have occurred but for the emission of sparks from the engine does not make the emission of sparks from the engine the cause of the damage to the widow and children. The cause or basis of the action of the widow and children is the death of Speed, accompanied by pecuniary loss to them; and, even if the fire was the cause of Speed's death, it cannot be said that their "losses" were "caused" by the fire. As the maxim says, In jure non remota causa sed proxima spectatur. It is not enough to show that without the fire the family's losses would not have been incurred - a causa sine qua non, to use the metaphysical jargon; what we have to find is the causa causans, the efficient cause, as distinguished from any necessary conditions (see Bourke v. Butterfield & Lewis Ltd.[24]).

I am assuming in favour of the Commissioners - and I think it is a right assumption - that if the fire was caused by cinders or ashes it was caused by sparks within the meaning of the section.

The learned Judges of the Full Court have all concurred in the view that the word "losses" in the exception in question must, on the context, refer to losses to property; and there is no doubt that primarily and generally, if not universally, the losses contemplated by the words "losses caused by sparks from railway engines" must be losses in the way of destruction of grass, crops, barns, fences, animals, hayricks, &c. But even if the meaning of "losses" is not so restricted - if, for instance, an action for the "loss of a hand" by the fire has to be referred to arbitration - it by no means follows that this action must be so referred. The only one who can bring an action for the loss of a hand is the possessor, the owner of the hand; whereas under Lord Campbell's Act an action is to be brought by or on behalf of dependants of the person who was directly affected by the negligence and not unless that person has been killed. Therefore I prefer to take the broader view which was suggested by the Chief Justice of Victoria, that the very nature of the action under Lord Campbell's Act excludes it from being treated as an action for a loss "caused by sparks from a railway engine." Mr. Ham urges that the loss of a husband or father is to be treated as coming under these words just as we should treat the loss of a hayrick. But this argument brings to light the essential differences between an action brought by the owner of the hayrick (or the hand) and an action brought by the dependants under Lord Campbell's Act: - In the first place, there is no ownership of human beings recognized by British law - even ownership of a husband or of a father. A husband is not yet to be treated as a hayrick. In the second place, under Lord Campbell's Act the damages are not given to the direct victim of the negligence. In the third place, the loss of the husband and father is not enough to justify the giving of damages - there must be actual damages proved - "damages ... proportioned to the injury resulting from" the "death." The damages are not given for injured feelings or on the grounds of sentiment, but must be for a pecuniary loss actual or prospective (per Lord Haldane L.C. in Taff Vale Railway Co. v. Jenkins[25]). It may be unpleasant to say so, but some families actually gain pecuniarily by the death of the husband and father; and if there is no actual loss by the death, no damages, even nominal, can be recovered (Duckworth v. Johnson[26]). In other words, the mere loss per se of a husband and father does not give any right to damages, even nominal, under Lord Campbell's Act. It is quite different if the hayrick be lost.

What I venture to affirm is that an action for damages recoverable under Lord Campbell's Act is not an "action for losses caused by the sparks from railway engines," even where it is clear that the death of the breadwinner (or other person having dependants) is due to fire caused by such sparks. The cases cited by the Chief Justice of Victoria seem to bear this position out amply; and there is another more recent case before the Judicial Committee of the Privy Council which is clear on the subject - Union Steamship Co. of New Zealand v. Robin[27]. There was a law of New Zealand to the same effect as Lord Campbell's Act; and there was also an Act which gave to a servant injured by the negligence of a fellow-servant a right of action against the employer, but the damages were not to exceed £500 "in an action brought under" the "Act in respect of the negligence of a fellow-servant." It was held that the limit of £500 did not apply to an action under Lord Campbell's Act, even though the death had occurred through the negligence of a fellow-servant; for in such an action "the cause or basis of the action is the death of the workman under certain conditions" - not the negligence itself.

This fully bears out the statement of Irvine C.J. that an action under Lord Campbell's Act "is not an action for damages for negligence even though the fact that such negligence caused the death is a condition precedent to liability"; but I may point out that the words quoted in the judgment that the action is "new in its species, new in its quality, new in its principle, in every way new," are to be found first, it seems, not in Pym v. Great Northern Railway Co.[28], but in Seward v. Owner of the Vera Cruz[29], in Lord Blackburn's judgment. The Chief Justice did not say, so far as I can find, that the action under Lord Campbell's Act "is not an action for damages at all," but, in effect, that such an action is based on a new and anomalous cause and that the damages are assessed "for death under certain conditions." As the Judicial Committee said[30], "the cause or basis of the action is the death of the workman under certain conditions"; and, as Coleridge J. said in Blake v. Midland Railway Co.[31], "the measure of damage is not the loss or suffering of the deceased" (which is the loss referred to in sec. 183), "but the injury resulting from his death to his family."

Solicitor for the appellants, F. G. Menzies , Crown Solicitor for Victoria.

Solicitor for the respondent, A. F. Cunningham , Colac, by E. L. J. Murphy.

[17] (1906) 2 K.B. 648, at p. 663.

[19] (1923) 2 K.B. 703, at p. 712: aff. (1924) 1 K.B. 223.

[21] (1884) 10 App. Cas., at pp. 68-70, 72-73.

[22] [1923] HCA 25; (1923) 32 C.L.R. 276, at pp. 289, 290.

[23] (1922) 1 A.C. 27, at pp. 34, 38.

[24] [1926] HCA 38; (1926) 38 C.L.R. 354, at p. 374.

[26] [1859] EngR 675; (1859) 29 L.J. Ex. 25.

[29] (1884) 10 App. Cas., at pp. 70-71.