THE ST. KILDA BOROUGH COUNCIL v. SMITH. Municipal Corporation — Highway Statutory Powers - Dangerous Work- S.C. IN BANCO. DUNEDIN. 1902. April 18; May 9. Where the question of non-repair of a highway does not arise, a public body authorised to construct or maintain a work which, if there had been no such authorisation, would be a nuisance must take every precaution that no danger or injury may arise from the work to the persons or WILLIAMS, J. property of members of the public. If such precautions are not taken the public body is guilty of negligence. APPEAL from the Stipendiary Magistrate's Court, Dunedin. The plaintiff in the lower Court claimed for that the Council wrongfully and negligently constructed and allowed a drain or ditch, which lies to the south side of Logie Street, St. Kilda, to remain unprotected and uncleansed, and the bank to remain in an insecure and faulty condition, whereby his horse was injured. The Magistrate gave judgment for the plaintiff for £15 and costs. The question for the opinion of the Court was whether such judgment was right. Gallaway, for the appellants : The Council was authorised to make an open drain by section 218 of "The Municipal Corporations Act, 1876," and there was no evidence of negligence in the construction. Though the creation of a nuisance is forbidden by section 228 of the same Act, if a particular work is expressly authorised it may be constructed though a nuisance: Thompson v. Mayor, &c., of Brighton(1); Stretton's Derby Brewery Company v. Mayor of Derby(2); The Corporation of Raleigh v. Williams(3); Lambert v. Corporation of Lowestoft (4); Borough of Bathurst v. Macpherson (5); Municipal Council of Sydney v. Bourke(6); Beven on Negligence (7); Wiseley v. Aberdeen Commissioners (8). (1) [1894]1 Q.B. 332. (6) [1895] A.C. 433. (7) 2nd ed. 374. (8) 14 Rettie 475; 15 Ct. of Sess. Cas. 4th Series 445. S.C. 1902. BOROUGH บ. SMITH. A. S. Adams, for the respondent: Thompson v. Mayor, &c., of Brighton (1) was the case of a ST. KILDA highway. If the manhole had been out of order there might have been liability. The Corporation of Raleigh v. Williams (2) was under a special statute. The borough should have taken every precaution to prevent danger, and they have not done so Geddis v. Proprietors of Bann Reservoir(3); Mersey Docks Trustees v. Gibbs(4); Municipal Council of Sydney v. Bourke (5); Dent v. Corporation of Bournemouth (6); Beven on Negligence(7); Scott v. Ellesmere Road Board(8); Aitcheson v. The Chairman, &c., of Bruce County(9); The Inhabitants of the Featherston Road District v. Tate (10). There was evidence of danger to support the Magistrate's judgment, and the failure to provide against that danger was negligence. There was no evidence of faulty construction or want of repair. The Magistrate did not find negligence, and if he did there was no evidence of it: Gilmour v. Marchant(11). WILLIAMS, J. :— Cur. adv. vult. The first question to be considered is what was the duty of the appellant Corporation with respect to the drain in question. The duties of Corporations invested with statutory powers are discussed in Geddis v. Proprietors of the Bann Reservoir(3). Lord Hatherley says(12), "But it appears to 66 me clearly and plainly that they (the Corporation) should "use every precaution, by the exercise either of their powers "created by the Act of Parliament itself or of their common"law powers, to prevent damage and injury being done to "others through whose property the works or operations are "to be carried on, and to avoid subjecting them to conse"quences which they were not bound to anticipate from the "Act of Parliament, seeing that the Act also enabled the parties who had the power to do so to prevent the mis"chief." In the same case Lord Blackburn says(13), "I "take it that it is now thoroughly well established that (1) (1894] 1 Q.B. 332. (2) 69 L.T. 506. (3) 3 App. Cas. 430. (4) L.R. 1 H.L. 93. (5) [1895] A.C. 433. (6) 66 L.J. Q.B. 395. (8) N.Z. L.R. 5 S.C. 283. (13) at pp. 455-56. "no action will lie for doing that which the Legislature has S.C. 1902. BOROUGH COUNCIL V. SMITH. authorised, if it be done without negligence, although it "does occasion damage to any one; but an action does lie ST. KILDA "for doing that which the Legislature has authorised if it "be done negligently. And I think that if, by a reason"able exercise of the powers either given by statute to the "promoters or which they have at common law, the damage "could be prevented, it is within this rule negligence' not "to make such reasonable exercise of their powers." This principle is well illustrated by two cases-Vaughan v. The Taff Vale Railway Company (1), in the Exchequer Chamber, and Dawson v. The Queen(2), in this Court and in the Court of Appeal. In each case there was a statutory power to use locomotive engines on a railway, and in each case the action was for damage to lands adjoining through a fire caused by the escape of sparks from the engine. In the English case it was proved that every practicable means which science could suggest, consistently with the efficient working of the engine, had been adopted to prevent the escape of sparks. As, therefore, the authority of the Legislature had legalised what would otherwise have been a nuisance, and the defendants had done all they could to prevent injury arising from what was thus made legal, it was held that the plaintiff could not recover. In Dawson v. The Queen(2) it was proved that the engine was burning brown coal, which was cheaper than bituminous coal, although bituminous coal was to be had in the market, and that brown coal was more dangerous, by reason of its throwing off sparks, than bituminous coal. The jury were directed that if the Government used a more dangerous material for fuel when a less dangerous material was reasonably available, that would be evidence of negligence; but that they might use the more dangerous fuel without being guilty of negligence, provided that in using it they took such precautions as would render the risk of using it no greater than the risk of using the less dangerous fuel. The jury found that the deflector used on the engine to overcome the danger arising from the brown coal then being used was not effective, and gave damages to the plaintiff. In the Court of Appeal the above direction. was approved of, and the verdict was upheld. In Thompson v. The Mayor, &c., of Brighton (3), A. L. Smith, L.J., admits. S.C. 1902. BOROUGH V. SMITH. 66 66 66 66 the correctness of Lord Blackburn's proposition in Geddis v. The Proprietors of the Bann Reservoir(1), but states that it ST. KILDA cannot apply to the peculiar case of a surveyor of highways, as otherwise his immunity from being sued for non-feasance would be gone. The learned Judge states expressly, however, that the liability of the sewer authority is different from that of a surveyor of highways. He says, He says, "If the gratings had "been out of order in themselves it would have been the 'duty of the defendants, irrespective of being surveyors of highways, to have put them in order, or to have fenced "round them till put in order, and if by neglect of such duty a passer-by had been injured he could have sued the "defendants for damages." As, however, the accident was caused not by the grating being out of order, but by the road being out of repair, it was held that the defendants were in the position of a surveyor of highways, and were not liable for their non-feasance in omitting to repair. Davey, L.J., in the same case, takes a similar view. He says(2), "It may be conceded that the Corporation is under a legal obligation to make such arrangements that works of whatever nature under their care shall not become a nuisance." If, however, the breach of duty which causes the nuisance is the omission to repair the highway no action will lie. In Thompson v. The Mayor of Brighton (3) it is manifest that the local body constructed and managed the sewer under statutory authority, and that they were justified in making the sewer under and the grating upon the highway. Both Judges agree that if the sewer or the grating had been originally constructed so as to be a nuisance, of if they had become a nuisance through mere non-feasance of the local body, and an accident had happened, the local body would have been liable. It is important to observe that in the present case the drain in question was not made for the purpose of draining the road, but for the general drainage of the borough. The cases, therefore, which decide that a public body intrusted with the management of highways is not liable for mere non-feasance in omitting to repair the highway do not apply. Where the question as to the non-repair of a highway does not arise, the result of the cases, I think is that if a public body is authorised by statute to construct or maintain a work which, if there had been no such authorisation, S.C. 1902. BOROUGH V. SMITH, would be a nuisance, it is the duty of the public body to take every precaution that no danger or injury may arise from the work to the persons or property of members of the public. If ST. KILDA such precautions are not taken, then the public body is guilty of negligence. It was therefore the duty of the appellant Corporation to take such precautions as would prevent the drain being a source of danger to the public using the highway. Now, the present appeal is not a general appeal upon the facts, but upon matter of law only, and this Court cannot now weigh conflicting evidence, nor decide upon its own view of the facts. There was certainly some evidence before the Magistrate to show that the drain was not only a nuisance in law, as obstructing to some extent the use of the highway, but that it was a nuisance which was obviously a source of danger to the public, and that the Corporation had taken no precautions whatever to prevent it being a source of danger. I think, on reading the Magistrate's judgment, it is clear that he accepted this evidence, and has found that the facts were in accordance with it. If the facts were in accordance with this evidence there was a breach of duty on the part of the Corporation, or, in other words, there was negligence. The Magistrate properly says that the question seems to be whether the borough was guilty of negligence in constructing and keeping open this uncovered ditch without any protection. As he found for the plaintiff, it follows that he must have found that the borough was guilty of negligence. When the Magistrate in his judgment speaks of a nuisance, he evidently means something which is not merely a nuisance in law, but which is also a source of danger to the public; because if the drain were protected by a fence it would be in law a nuisance, although the source of danger had been removed. The Magistrate has said that the statute forbids the creation of a nuisance. But if any particular work, expressly authorised by the statute, must from its nature be in law inevitably a nuisance, I doubt if this prohibition would prevent the construction of such a work. In such circumstances the prohibition merely emphasizes the existing law, which is that although there may be a right to create a nuisance, yet there is a duty to take every precaution to prevent such nuisance being a source of danger. I think the real meaning of the Magistrate was that the Borough Council was not authorised by the statute to create a dangerous nuisance in circumstances where. the danger could have been obviated. It is not necessary for VOI. XXI.-14 |