Shield v Warden [1916] HCA 1; (1916) 21 CLR 109 (16 February 1916)

Shield Plaintiff, Appellant; and The Warden, Councillors and Electors of the Municipality of Huon Defendants, Respondents.

This appeal is brought as of right and without special leave. The action is for damages for negligence of the defendants in connection with the flow of water from their road on to the plaintiff's land. The land is an orchard fronting the Huon River and sloping upwards from it to the road, which runs nearly parallel to the river. On the other side of the road the upward slope continues, the land being occupied as an orchard by one Buxton. In the natural condition of the locality, rainwater falling on Buxton's land would flow downwards across the plaintiff's land to the river. The road is described by the plaintiff as "a side cutting" along the slope. It was made more than thirty years ago by the Government of Tasmania, when culverts and drains were constructed on and across it at suitable places. Afterwards it was placed under the control of the defendants, who have ever since maintained the road, drains and culverts in the same condition as when handed over to them. In consequence of clearing and cultivation, rain-water now flows off more rapidly than when the land was in a state of nature. The substantial complaint is that, in consequence of the manner and place in which Buxton causes his water to flow upon the road, more water passes through one of the culverts than formerly flowed through it, and that by reason of the increased flow the plaintiff has sustained injury for which he seeks to make the defendants responsible. He also claims an injunction. The jury assessed the damages actually caused by the increased flow of water at £20 a year for the six years before 1912, but found that none had been sustained in the years 1913 and 1914. Sec. 231 of the Local Government Act 1906 provides that an action against a local authority, such as the defendants are, for damages in respect of any injury to person or property alleged to have been sustained by reason of the negligence of the local authority in respect of local works must be brought within six months from the date of the injury sustained. That section is plainly applicable to the present case, in which no damage was sustained within six months before the action was brought, namely, February 1914. The claim for damages therefore fails. Nothing is left but the claim for an injunction, which is apparently an injunction to restrain the defendants from continuing their inaction in not making new provisions for the increased flow of water through the particular culvert. Objection was taken by the respondents that the appeal is incompetent as not involving directly or indirectly any claim to property or any civil right of the value of £300. It appeared in evidence that all the inconvenience complained of by the plaintiff could be remedied by the expenditure of a trifling sum, certainly less than £50, on the plaintiff's land. The value of the civil right asserted is therefore less than £300, and for this reason the appeal must be dismissed as incompetent.

Under the circumstances it is not necessary or desirable to deal with the substantial question of law, which was sought to be raised, but I think it right to say that the action is wholly misconceived. The complaint is that the defendants have not done anything to remedy the damage caused by Buxton's action. This is a complaint of non-feasance. Whether what Buxton did was an actionable wrong or not, we do not know; but, if it was, the defendants are not responsible for it, and they are not bound to take action against him in respect of it. The law on the subject is well settled. The culvert which is said to be too small is of the same size as when it was placed under the defendants' control, and they are not under any legal obligation to enlarge it or to add another in consequence of the altered condition of the neighbouring land for which they are not responsible. In the case of Essendon Corporation v. McSweeney[1] the Court laid down the principles governing the liability of local authorities in respect of works properly constructed by them in the first instance and afterwards becoming, by reason of altered circumstances, insufficient for their purpose. The same principles are applicable to the case of a local authority upon which the duty of maintenance of works already constructed by their predecessors is imposed for the first time. As the appellants were allowed to argue the point at considerable length in their endeavour to establish the existence of a civil right of appealable value, and as the point is one of general importance to local authorities, I have felt justified in saying these few words on the subject, but I do not feel justified in taking up further public time in discussing a principle so well settled.

One of the points of law arising in this case renders it necessary to refer to the pleadings. The declaration contains three counts. The first is for negligently keeping and continuing drains and watercourses on a road which was under the defendants' care and management, to the damage of the plaintiff; the second, for negligently allowing and permitting the owners of adjoining lands to discharge water on to the road, and for conducting and discharging such water with silt on to the plaintiff's land; and the third, for improper construction of drains, and negligent management of drains, and causing and permitting improper quantities of water to flow on to the plaintiff's land. The plaintiff claimed damages, originally laid at £500 and afterwards amended to £800. He also claimed an injunction against continuance. The defendants' first plea was not guilty.

The point to which I refer arises on an objection taken by the defendants to the action, and based on sec. 231 of the Local Government Act 1906, which provides that "No person shall be entitled to recover against a Council or Local Committee any damages in respect of any injury to the person or to property alleged to have been sustained by himself or any other person by reason of the negligence of the Council or Local Committee in respect of any local work vested in or under the control of the Council or Local Committee unless the following conditions are complied with," &c. The conditions are, shortly, (1) notice in writing within a fixed time; (2) examination of the injured person if required; and (3) examination of the injured property.

Mr. Lodge urged that the section applied only to the case of "accidents," that is, something not deliberately persisted in, and also that the present case was, in substance, one of "nuisance" rather than negligence.

As to the first contention, the language of the section draws no such distinction. "Negligence" is the term used, and that expression, as applied to complaints against municipalities in respect of their local work, is at least as frequently directed to persistent omission to alter the condition of the work as to some defect which ordinary care could have prevented, but which is in fact suddenly brought to notice. I see nothing in the context to cut down the natural meaning of the word "negligence"; and the conditions referred to point rather to the full retention of that meaning.

As to the suggested distinction of nuisance, it must be remembered that a nuisance may arise from the mere invasion of an absolute right, and independently of negligence. In that case the section would not apply. But where negligence is the essential cause of action, then, whether the result is a nuisance or not, the section does apply. The conditions admittedly were not complied with. Applying, then, this ruling to the declaration, it will be seen that, except for the charges that the defendants themselves did some act or were privy to some act which apart from negligence constituted a cause of action, sec. 231 bars the action for damages.

Learned counsel for the appellant could not point to any act of the Council itself. As to active interference, the only circumstance suggested was that Buxton said he had the Inspector's permission to dig a drain on the road. But there are several reasons why that should not influence the case. The date was about 1911, perhaps a little before, whereas the damage arose first in 1906; then the Inspector is not shown to have had any authority to consent, and it does not appear that any such consent was brought to the Council's knowledge.

The Warden of the Municipality stated that he had never been asked to consider, and had not considered, any application to deal with water flowing across roads, through culverts, on to and doing injury to another man's land. Lastly, the findings of the jury numbers 3 and 4 negative the suggestion that any new drain can be considered. This circumstance being disposed of, there remains nothing but mere non-feasance, in other words, mere omission to take any steps either by suit or by physical interference to prevent the flow from Buxton's property, that is objected to.

The general rule as to municipal non-feasance was dealt with by this Court in McSweeney's Case[2]. It was sought to distinguish that case from the present by the fact that Buxton's land, from which the water comes, is within the municipality, whereas in the case cited the objectionable flow was from a neighbouring municipality. But the power and the right to interfere, either by physical act or by suit, is the same in both cases, and the distinction fails. Notwithstanding that decision, which, if applicable, is fatal to the appellant's case, it was earnestly pressed upon us that by reason only of not taking some active steps to prevent the water sent by Buxton from flowing over the road, the Municipality were, in law, causing or permitting, in the necessary sense, that water to pass to the plaintiff's land. No authority could be found to support so drastic a proposition. To the Dorking Union Case[3], which I quoted in McSweeney's Case[4], I would add another, very much in point, Saxby v. Manchester, Sheffield, and Lincolnshire Railway Co.[5]. There may or may not be found, according to the facts of a particular case, a permission to do the acts complained of, so as to establish a privity or participation on the part of the intermediate owner. No such case is made here. It is true that the jury have given one answer which, if it stood unqualified, would in my opinion entitle the plaintiff to judgment. The sixth question is: "Has the Council during the period of its management permitted water to flow on to the plaintiff's land whether coming from lands above the road or not?" The answer was: "Yes." But we have not the learned Judge's charge before us, and so, in the first place, reading that with the twelfth question and answer, and by the light of the evidence and the argument addressed to us, I take the word "permitted" there to mean mere passivity. Further, the motion to the Supreme Court of Tasmania was upon leave reserved to enter a nonsuit or a verdict for defendants, and, as already pointed out, there is no evidence to support a finding of permission in the sense necessary to constitute privity or participation in the wrong.

The appellant's ultimate reliance was placed on the effect of sec. 2 of the Roads Maintenance Act 1881 (45 Vic. No. 33). It was contended that the final requirement to "keep clear and in good order and condition all drains upon any such road" required the defendant Municipality, to the extent of their means, to make sufficient drains to carry off whatever water found its way from any source, lawful or unlawful, to the road.

I cannot read the section in that way. The section contemplates construction of works by the Minister, and then maintenance of those works by the Trustees (and now by the Municipality) in good order and condition. But the enactment is sharply opposed to any original construction of new works by the Trustees.

As to the competency of the appeal, I prefer to leave this open, yet, in view of the uncontradicted affidavit as to value and the case made as to the increased quantity of water which is sent upon the appellant's land, I am at present disposed to think it comes within the words of sec. 35 of the Judiciary Act. The effect, in relation to the grant of an injunction, of the comparative cost and inconvenience of drains on the plaintiff's property to avert actual damage is another matter.

[1] [1914] HCA 7; 17 C.L.R., 524.

[2] [1914] HCA 7; 17 C.L.R., 524.

[3] 20 Ch. D., 595.

[4] [1914] HCA 7; 17 C.L.R., 524.

[5] L.R. 4 C.P., 198.

High Court of Australia

Shield v Warden [1916] HCA 1; (1916) 21 CLR 109 (16 February 1916)

HIGH COURT OF AUSTRALIA