Rockhampton City Council v Russell [1931] HCA 22; (1931) 46 CLR 462 (17 June 1931)

HIGH COURT OF AUSTRALIA

Council of the City of Rockhampton Defendant, Appellant; and Russell Plaintiff, Respondent.

H C of A

On appeal from the Supreme Court of Queensland.

17 June 1931

Gavan Duffy C.J. , Starke, Dixon, Evatt and McTiernan JJ.

McGill, for the appellant.

Larcombe and Allen, for the respondent.

McGill, in reply.

The following written judgments were delivered:—

Gavan Duffy C.J.

In my opinion the appeal should be dismissed.

Starke, Dixon and McTiernan JJ .

In the Supreme Court Webb and Henchman JJ. considered that there ought to be a new trial because, in their opinion, a misdirection had been given in relation to the tenth question submitted to the jury, and Macrossan J. concurred in ordering a new trial because issues had not been submitted to the jury upon which he thought they might have found for the plaintiff. We think that the misdirection relied upon by their Honors could not have influenced the jury's answers to the remaining questions and we do not think that those answers should be set aside for any of the reasons advanced by counsel. With those answers standing, we think the jury could not, consistently with the evidence, have answered the sixth question or any other question which might properly have been submitted to them in favour of the plaintiff. It appears to us that the defendant's duty can be stated no higher than to abstain from the supply of electrical current to a consumer's installation which it knew, or, exercising reasonable care and skill, ought to have known, was defective and likely to allow an escape of electricity endangering the safety of persons who came upon the premises.

The answers of the jury establish that the defendant neither knew nor ought to have known of any such defect in the installation when the contractor put it in in 1926 or when he repaired it in 1927, because, as they found, it was not then left in an improper condition.

No evidence was given that the defect existed before January 1930 allowing the escape of electricity, which led to Russell's death on 20th February 1930, and we can discover no evidence upon which the jury could find that an electrical undertaker in the circumstances ought reasonably to have taken precautions which the defendant omitted, and by which the defendant ought to have become aware that electricity was escaping.

We therefore think that the grounds upon which the Supreme Court ordered a new trial fail and the appeal should be allowed.

Evatt J .

The only ground upon which the judgment entered by Brennan J. was successfully attacked before the Full Court, was the presence of an alleged misdirection of law in a portion of the summing-up of the learned trial Judge. The direction dealt with a question to be answered by the jury. But no objection whatever was raised by counsel to the direction; indeed the questions to be answered by the jury seem to have been arrived at by actual agreement between counsel.

In my opinion, had objection been taken to the criticized portion of the charge, the Judge could, and probably would, have made a sufficient direction or asked "a further or different question"[1].

Adopting the language of Lord Parker of Waddington in Banbury v Bank of Montreal[2], I am of opinion that it was "manifestly unfair and unjust to allow the point to be raised for the first time" on appeal.

In all the circumstances, therefore, the Full Court should not have ordered a new trial.

For this reason the appeal should be allowed.

Appeal allowed.

Solicitors for the appellant, Walsh & McLaughlin, by Fitzgerald & Walsh .

Solicitors for the respondent, T. J. Hally , by O'Shea, O'Shea, Corser & Wadley .

[1] (1918) A.C., at p. 705.

[2] (1918) A.C., at p. 705.