Victorian Railways Commissioners v Campbell [1907] HCA 26; (1907) 4 CLR 1446 (26 June 1907)

Victorian Railways Commissioners Defendants, Appellants; and Campbell and Others Plaintiffs, Respondents.

In Dennis v. Victorian Railways Commissioner[1], the Supreme Court of Victoria laid down this rule as stated in the head note:—"In an action for damages for losses caused by sparks from a railway engine belonging to the defendant, which engine was properly constructed and managed, the omission on the part of the defendant to burn or clear off grass and herbage naturally growing on the land of the defendant within the fences of the line of railway, which grass and herbage was ignited by a passing train, may be evidence of actionable negligence which should be left to the jury." In the present case the arbitrator, to whom the matter was referred in pursuance of the Statute, found that the defendants had been guilty of a negligent omission to burn, clear off, or take reasonable precautions to prevent ignition of the dry and inflammable grass and herbage naturally growing on certain land within the railway fences, whereby injury accrued to the original plaintiff. So far, the case is exactly within Dennis v. Victorian Railways Commissioner[2], with which I venture to express my entire concurrence. The defence made is that, although the land was within the railway fences, the appellants had parted with the possession of it and were not in a position to do acts, the omission to do which is the foundation of the respondents' claim. The obligation of the appellants arises in this way. They are empowered by Statute to run engines upon their railways: the running of engines emitting sparks is a dangerous operation: Therefor, although the running of engines is made lawful, the appellants are, in running them, bound to take precautions to prevent unnecessary sparks from being emitted. In this case it is found that they took those reasonable precautions. But then in a country like Australia a further danger arises if there is long grass growing within the railway fences, for it is likely to catch fire and the fire is likely to spread to the adjoining land. Accordingly in Dennis v. Victorian Railways Commissioner[3] the Supreme Court held that the Commissioner was bound to take precautions to prevent that consequence. That obligation attaches to the appellants because they have possession of the land for the purpose of performing their statutory duty. Sec. 115 of the Railways Act 1890 allows the Commissioners to lease any surplus lands by direction and with the approval of the Governor in Council. They are, therefore, authorized to part with the possession of land by demise. The agreement set up in the present case is not a demise authorized by the Governor in Council within that section. It is a document of a singular character, by which it is suggested that the land had been demised to one Tucker. The document which was not signed by the Commissioner, but only by the alleged tenant, recites that, in consideration of the Commissioner allowing Tucker to use the land and fences at reasonable times and under the control of the station-master, Tucker made certain acknowledgments; he agreed to pay the taxes and a rent of £1 a year, and that he might be turned out by the Commissioner at a month's notice, and he was to give a similar notice if he intended to vacate the land. It was intended, therefore, that he should have the occupation of the land, but only for grazing purposes. It was, however, expressly stipulated in these words:—"I will ... take every precaution to prevent the spreading of fire on the land; and I agree to allow the Commissioner, by his officer or servants, to enter upon the land and burn off the grass should they consider it necessary." The foundation of the Commissioners' duty being as I have stated, it is not easy to see how that duty is got rid of by allowing somebody else to graze his cattle on the land with a promise that he will prevent the spread of fire, and with the reservation to the Commissioners of the power to enter upon the land and burn off the grass. It appears to me that the Commissioners retained absolute control of the land with the attendant obligation to take precautions against the danger arising from there being long grass upon the land. Under these circumstances the duty primâ facie imposed upon them still continued. Therefore I think that the Supreme Court was right and that the appeal fails.

I should like to add that, if this so-called agreement had not contained the stipulation referred to, a very interesting question would have arisen, viz., whether the Commissioners could make a valid agreement which would have the result of exonerating them from the duty of keeping the grass in a safe condition.

The argument for the appellants starts by admitting the correctness of the decision in Dennis v. Victorian Railways Commissioner[4]. It is then sought to distinguish this case from that only in one way, that is to say, by showing that the land had passed out of the control of the appellants. I think that contention fails. The document by which Tucker got the right of occupation of the land expressly reserved very considerable control to the Commissioners. The use of the land is only for grazing purposes and is expressly limited by the words:—"At reasonable times and under the control of the station-master or officer in charge of the said section of the line (as the case may be)." And then in addition Tucker agrees to take "every precaution to prevent the spreading of fire on the land." There is no limitation to that. Then the Commissioner put in words which to my mind, reserve the most absolute control with regard to that very matter, viz.:—"I agree to allow the Commissioner, by his officers or servants, to enter upon the land and burn off the grass should they consider it necessary." It is very difficult to imagine words more distinct to reserve control, and, as the only argument to differentiate this case from Dennis v. Victorian Railways Commissioner[5], was that the Commissioners had lost control of the land, I think the reference which has just been made to that agreement disposes of that objection. I therefore think the appeal should be dismissed.

I concur. I think the Commissioners cannot keep control of the land and at the same time escape the consequences of having that control.

[1] 28 V.L.R., 576; 24 A.L.T., 196.

[2] 28 V.L.R., 576; 24 A.L.T., 196.

[3] 28 V.L.R., 576; 24 A.L.T., 196.

[4] 28 V.L.R., 576; 24 A.L.T., 196.

[5] 28 V.L.R., 576; 24 A.L.T., 196.

High Court of Australia

Victorian Railways Commissioners v Campbell [1907] HCA 26; (1907) 4 CLR 1446 (26 June 1907)

HIGH COURT OF AUSTRALIA