Geelong Harbour Trust Commissioners v Gibbs Bright & Co [1970] HCA 16; (1970) 122 CLR 504 (17 June 1970)

HIGH COURT OF AUSTRALIA

GEELONG HARBOUR TRUST COMMISSIONERS v. GIBBS, BRIGHT & CO. [1970] HCA 16; (1970) 122 CLR 504

Shipping

High Court of Australia
Barwick C.J.(1), McTiernan(2), Kitto(3), Menzies(4) and Owen(5) JJ.

CATCHWORDS

Shipping - Harbour Trust - Damage to beacon by vessel - Absence of negligence or default on part of vessel - Liability of agent of vessel - Geelong Harbor Trust Act 1928 (Vict.), s. 110*.

HEARING

Melbourne, 1970, March 6, 7;
Sydney, 1970, June 17. 17:6:1970
APPEAL from the Supreme Court of Victoria.

DECISION

June 17.
The following written judgments were delivered : -
BARWICK C.J. The principal question in this appeal is whether a section of a subject to limitations or exceptions unexpressed by the legislature but to be declared by the Court in order to implement a policy of the legislature divined by the Court from the words of the statute and their impact, if applied without qualification, upon the previously existing general law. (at p506)

2. There is a subsidiary question, namely, whether if it is thought that the legislature meant what the words of the statute seem plainly to say, the reasoning of an earlier decision of this Court not resulting in such a construction ought none the less, merely because of the lapse of time, to be accepted and followed. (at p506)

3. The appellant is constituted a body corporate by the Geelong Harbor Trust Act 1928-1951 (Vict.) (the Act) and empowered thereby to erect and maintain, amongst other things, wharves and beacons in the Port of Geelong in the State of Victoria. According to an agreed statement of facts, to the origin of which I shall later refer, it was possessed in October 1958 of a beacon in the Corio Passage of the Port of Geelong, known as No. 12 Beacon. On 26th October 1958 the motor vessel Octavian of which the respondent was the agent within the meaning of s. 110 of the Act, was securely moored to a wharf in the said port. During that day the wind rose, as it is said, instantaneously, from 30 m.p.h. to 79 m.p.h. and simultaneously veered from west south west to west. Such a combination of circumstances was unusual in that port. As a result, the vessel broke loose due to the severity of the squall and came against No. 12 Beacon causing injury to it. It is agreed that no act or omission of any person associated with the vessel which ought to have been done or omitted caused or contributed to the collision of the vessel and the beacon. (at p507)

4. The appellant sued the respondent in the Supreme Court of Victoria alleging that the vessel caused injury to its beacon and claimed 2,868 Pounds 819s. 5d. ($5,537.95), being the cost of its necessary replacement. The appellant's action was founded exclusively on the provisions of s. 110 of the Act as amended to 1951. That section is in the following terms :

"110. (1) The Commissioners may recover damages in
any court of competent jurisdiction from the owner master
and agent of any vessel for any injury caused by such vessel
or by any boatmen or other persons belonging to or employed
in or about such vessel to the property or effects of the
Commissioners
or the banks or wharves or other works erected
maintained or repaired under the provisions of this Act.
(2) The owner master or agent of any vessel shall not be
relieved of any liability to the Commissioners by reason of the
fact that such vessel was under compulsory pilotage at the
time any injury was caused as aforesaid.
(3) Nothing in this section shall prejudice any other rights
which the Commissioners may have or limit any liabilities to
which the vessel or the master owner or agent thereof may be
subject in respect of any injury caused by such vessel." (at p507)

5. The respondent, amongst other defences in its amended statement of defence, asserted that -

"6. (a) If any part of the damage alleged occurred upon
or as a result of the motor vessel Octavian coming
into contact with the said beacon (which is
not admitted) the said damage occurred and
the motor vessel Octavian came into contact
with the said beacon -
(i) by act of God ; alternatively
(ii) by inevitable accident ; alternatively
(iii) without negligence or other tortious act or
omission on the part of the motor vessel
Octavian or on the part of any person for
whose negligence or other tortious act or
omission the defendant is liable.
(b) The defendant will say that the provisions of
s. 110 of the Geelong Harbor Trust Act 1928
(as amended) do not render the agent of any
vessel liable for damage occurring upon or as a
result of the vessel coming into contact with
property of the Commissioners -
(i) by act of God ; alternatively
(ii) by inevitable accident ; alternatively
(iii) without negligence or other tortious act or
omission on the part of the vessel or on the
part of any person for whose negligence or
other tortious act or omission the agent of
the vessel is liable.
7. If the motor vessel Octavian has caused any injury
to the said beacon (which is denied) such injury was so caused
by inevitable accident and without negligence or other tortious
act or omission on the part of the motor vessel Octavian or
of any person for whose negligence or other tortious act or
omission the defendant is liable." (at p508)

6. On 28th February 1969 it was ordered by consent of the parties that the point of law raised by the amended defence namely "whether the provisions of s. 110 of the Act operate to impose liability on the agent of the vessel in the event of it being established that the collision referred to in the statement of claim occurred by act of God, inevitable accident or without negligence on the part of any person for whom the agent is responsible" be set down for hearing and disposal before the trial of the action. (at p508)

7. This was done and the point of law was disposed of on 19th August 1969 by a declaration made by the Supreme Court that the provisions of s. 110 of the Act as amended do not operate to impose liability on the agent of a vessel for injury caused by such vessel to the property of the appellant where the collision in which such injury is done occurs as a result of an act of God or inevitable accident or without negligence or other tortious act or occurrence on the part of any person employed in or about the vessel. (at p508)

8. The learned judge who constituted the Supreme Court regarded himself as bound by the decision of this Court in Townsville Harbour Board v. Scottish Shire Line Ltd. [1914] HCA 33; (1914) 18 CLR 306 to hold that s. 110 did not impose unqualified liability upon the agent of a vessel which caused injury to the installations of the appellant. However, he expressed his own opinion of the construction of the section to be in the same sense. (at p508)

9. The appellant now appeals to this Court by special leave. The undesirability of dealing with a point of law upon a hypothetical basis before the relevant facts are found or admitted needs no emphasis. Consequently at the Court's instance, a statement of agreed facts was made available to the Court for the purpose of the disposal of this appeal. I have already indicated the relevant facts so agreed. It is apparent from this statement that no question of an act of God in fact arises in the action. Further, it is clear that the respondent's vessel was not in any situation comparable to that of the Natalian in the case of River Wear Commissioners v. Adamson (1877) LR 2 App Cas 743 . The substantive question which does arise in the action is whether the section imposes liability upon the owner or agent of a vessel only in circumstances where some action in tort would otherwise lie against some person for the injury caused to the beacon, or imposes liability upon the agent or owner, without any such qualification, where a vessel in fact causes injury to the property of the appellant. (at p509)

10. This Court, unlike the House of Lords when deciding the meaning of s. 74 of the Harbours, Docks and Piers Clauses Act, 1847 (U.K.) in Great Western Railway Co. v. Owners of s.s. Mostyn (1928) AC 57 , is not bound by any authoritative construction of the words of the section it is called upon the construe. It is quite free so far as precedent is concerned to place its own construction upon the section. However, it has the great assistance of the discussion in England of not dissimilar words in other Acts: and there is the decision of this Court in Townsville Harbour Board v. Scottish Shire Line Ltd. [1914] HCA 33; (1914) 18 CLR 306 . (at p509)

11. Section 74 of the Harbours, Docks and Piers Clauses Act, 1847 (U.K.), was in the following terms:

"The owner of every vessel or float of timber shall be
answerable to the undertakers for any damage done by such
vessel or float of timber, or by any person employed about
the same, to the harbour, dock, or pier, or the quays or works
connected therewith, and the master or person having the
charge of such vessel or float of timber through whose wilful
act or negligence any such damage is done shall also be liable
to make good the same; and the undertaker may detain
any such vessel or float of timber until sufficient security
has been given for the amount of damage done by the same:
Provided always, that nothing herein contained shall extend
to impose any liability for any such damage upon the owner
of any vessel where such vessel shall at the time when such
damage is caused be in charge of a duly licensed pilot, whom
such owner or master is bound by law to employ and to put
his vessel in charge of." (at p509)

12. It was construed in the case of River Wear Commissioners v. Adamson by Quain J. sitting at the Durham Assizes as imposing absolute liability on the owner of a vessel which, after its crew had been withdrawn from it during a gale off the English coast, was lifted by the wind and tide against a pier the property of the River Wear Commissioners who were entitled to the benefit of s. 74. This decision was reversed on appeal, various reasons being given by the Lord Justices (1876) LR 1 QBD 546 . On the matter coming before the House of Lords, the decision of the Court of Appeal was affirmed (1877) LR 2 App Cas 743 . (at p510)

13. I have no need to discuss the various and inharmonious reasons given for the conclusion in that case that the owners of the vessel were not liable. Those reasons were discussed in detail in Great Western Railway Co. v. Owners of s.s. Mostyn (1928) AC 57 . But, if I may say so with due respect to those who have and may yet think otherwise, in my opinion, the House of Lords did not decide in River Wear Commissioners v. Adamson (1877) LR 2 App Cas 743 that s. 74 was subject to the exception of an act of God causing or contributing to the injury to the harbour installations. Nor, in my opinion, did the House declare that the Act only imposed liability on an owner of a vessel causing injury where someone was liable for that injury at common law. (at p510)

14. In Townsville Harbour Board v. Scottish Shire Line Ltd. [1914] HCA 33; (1914) 18 CLR 306 this Court was called upon to construe s. 196 of The Harbour Boards Act of 1892 (Q.) which was in terms substantially identical with s. 74 of the Harbours, Docks and Piers Clauses Act, 1847 (U.K.). A vessel owned by the Scottish Shire Line injured a wharf the property of the Townsville Harbour Board, which was a Harbour Board within the meaning and operation of the section of the Queensland Act. The vessel was under compulsory pilotage at the time. Griffith C.J. and Barton J. by applying what they considered to be the decision in River Wear Commissioners v. Adamson (1877) LR 2 App Cas 743 held that the owners of the vessel were not liable for the injury done whilst the vessel was in the charge of the pilot. Griffith C.J. thought

". . . that the proper conclusion to be drawn from the
decision is that in the opinion of the majority of the House
s. 74 of the Act did not create a new kind of liability, but
merely declared that the owner of a ship should be liable for
an injury done by his ship under such circumstances that
someone was liable for it at common law"
(1914) 18 CLR, at pp 314-315
.

Barton J. seems to have treated the opinion of Lord Cairns L.C. in the English case as being the interpretation placed by the House on the English section (1914) 18 CLR, at p 318 : and, in any case, like Isaacs J. (1914) 18 CLR, at p 330 was prepared to accept Lord Cairns' view as the correct construction of the section. Accordingly the Court unanimously held that the Queensland section did not impose liability on the owner in the circumstances of the case. (at p510)

15. But in so far as that construction was the result of an opinion that there was a decision of the House of Lords in the same sense as Lord Cairns' opinion in River Wear Commissioners v. Adamson (1877) LR 2 App Cas 743 it is now clear that the House of Lords in deciding Great Western Railway Co. v. Owners of s.s. Mostyn (1928) AC 57 did not regard River Wear Commissioners v. Adamson (1877) LR 2 App Cas 743 as approving any such construction. Viscount Haldane in a very full analysis of the speeches in River Wear Commissioners v. Adamson (1877) LR 2 App Cas 743 concluded that there was no majority view in favour of the construction of s. 74 proposed by Lord Cairns. Viscount Dunedin issued a timely warning against constructing a ratio decidendi by adding opinions together and agreed with Lord Herschell's view expressed in The Arrow Shipping Co. Ltd. v. The Tyne Improvement Commissioners (The "Crystal") (1894) AC 508 that "you cannot extract from the judgements in River Wear Commissioners v. Adamson (1877) LR 2 App Cas 743 such a ratio decidendi as is binding". It may perhaps be said that it is not wholly clear from the speeches in Great Western Railways Co. v. Owners of s.s. Mostyn (1928) AC 57 for what proposition the House regarded the decision in River Wear Commissioners v. Adamson (1877) LR 2 App Cas 743 as binding upon it. But it is clear that the majority held that there was no decision of the House in the sense of Lord Cairns' speech. Viscount Haldane said that the House was bound

". . . to hold that the section in question is not to be read
literally but as applying when the damage complained of
has been brought about by a vessel under the direction of the
owner or his agents, whether negligent or not. The decision
further exempts the owner when the vessel is not under such
control but is for instance derelict"

(1928) AC, at pp 71-72 .
Viscount Dunedin said that the judgment itself was binding but did not say what the judgment necessarily involved (1928) AC, at p 74 . Lord Shaw thought the decision limited to its very special facts, namely that "of a derelict ship from which all human agency had been withdrawn". Lord Phillimore was prepared to treat Lord Cairns' view as having been adopted by a majority of the House and thus as constituting the ratio decidendi of the judgment. I think Lord Blanesburgh treated the decision as holding that damage done by a vessel as the result of an act of God was exempted from the operation of the section. For other views of members of the House of Lords as to the basis of the decision in River Wear Commissioners v. Adamson (1877) LR 2 App Cas 743 and that of Great Western Railway Co. v. Owners of s.s. Mostyn (1928) AC 57 see Workington Harbour and Dock Board v. Towerfield (Owners) (1951) AC 112 per Lord Porter (1951) AC, at p 135 , per Lord Normand (1951) AC, at p 146 and per Lord Radcliffe (1951) AC, at p 157 . But as I mentioned earlier this Court is under no necessity to decide what in terms of precedent the House decided in River Wear Commissioners v. Adamson (1877) LR 2 App Cas 743 . It is sufficient that as from the time of the decision of Great Western Railway Co. v. Owners of s.s. Mostyn (1928) AC 57 it was clear that the basis of the reasoning of this Court in Townsville Harbour Board v. Scottish Shire Line Ltd. [1914] HCA 33; (1914) 18 CLR 306 was not endorsed by the House of Lords. (at p512)

16. It may be mentioned, however, that in Great Western Railway Co. v. Owners of s.s. Mostyn (1928) AC 57 the House of Lords had to deal with a case in which a vessel in charge of a master and crew, without negligence on their part, dragged its anchor over submarine cables with resultant damage. The cables were the property of a dock owner entitled to the benefit of a section in substantially the same terms as s. 74 of the Harbours, Docks and Piers Clauses Act. The House, by majority, held the owner of the ship liable within the section. Being unable as matters then stood to overrule the decision of the House in River Wear Commissioners v. Adamson (1877) LR 2 App Cas 743 a majority of their Lordships, as it seems to me, confined it to a decision on its own facts not establishing any general principle. (at p512)

17. I have carefully studied all the various reasons given in the various courts for the decisions to which I have referred. They seem to me to cover every argument pro and con the construction of a section in terms of s. 74 of the Harbours, Docks and Piers Clauses Act. There is no need to recount them. That section provided that the owner should be "answerable" for damage done by a vessel and imposed liability upon a master for wilful or negligent conduct in relation to the damage done. Section 110 of the Act provides that the harbour authority may "recover damages"; it speaks of "injury caused" and groups owner, agent and master together without differentiation. It does not contain a provision which gives to the owner, agent and master who has had to pay the harbour authority a right to recover from the person wrongfully causing the damage though some such provisions in comparable Victorian statutes do so. But it seems to me that none of these differences in detail has any substantial effect upon the construction of the principal provision. (at p512)

18. In my opinion, the words of s. 110 are in themselves unambiguous and intractable: and I can find no ground for construing them otherwise than in their plain and unqualified sense, even though the section was passed by the legislature at a time when absolute liability for acts done or omitted was not as familiar a concept as it is today. "The harbour authority may recover damages from the owner, agent or master of a vessel" which in fact causes injury to the harbour installations. In my opinion, there is no warrant for any judicial gloss upon the words, whatever the judicial view may be as to the rightness of imposing such an unqualified liability upon the owner, agent or master. But, for my own part, I see nothing unreasonable or harsh in requiring those associated with a vessel, either by proprietorship, or agency, or control to make good damage done by the vessel to harbour installations. None of the various reasons given in the reported decisions including the decision of this Court for qualifying the words of the section persuade me to the view that the legislature in enacting the section in its actual terms intended any qualification of the words it employed in enacting the section. I share with great respect Lord Gordon's view in River Wear Commissioners v. Adamson (1) of the proper approach to the construction of such a section and his conclusion as to the meaning of the section with which he had to deal. Further, if I might say so, again with great respect, I entirely agree with the speech of Viscount Haldane both in his analysis of the reasons given in River Wear Commissioners v. Adamson (1877) LR 2 App Cas 743 and in his construction of the section then under consideration had he been free altogether of the authority of that case. Also I respectfully agree with the views expressed by Lord Radcliffe in Workington Harbour and Dock Board v. Towerfield (Owners) (1951) AC 112, at pp 158-160 . Indeed, as Lord Shaw said in his speech in Great Western Railway Co. v. Owners of s. s. Mostyn (1928) AC 57, at p 79 :

"Nearly every judge who has spoken upon the subject, not
only in Adamson but in the various cases thereafter in which
Adamson has been referred to, has admitted that, while the
restriction of liability enforced by this House has, of course,
to be deferred to, yet the imposition of unrestricted and
comprehensive liability appears, nevertheless, to be in entire
accord with the plain and express words of the statute." (at p513)

19. To qualify the unambiguous language of s. 110 so as to effect some supposed policy of the legislature would, in my opinion, not be construing the words of the legislature but on the contrary be an attempt to legislate. (at p513)

20. It was said that a provision corresponding to s. 110 had been enacted by the Victorian legislature after the decision of the House of Lords in River Wear Commissioners v. Adamson (1877) LR 2 App Cas 743 and before the decision of the House in Great Western Railway Co. v. Owners of s. s. Mostyn (1928) AC 57 and that therefore s. 110 should be construed as being procedural only, the legislature being supposed to have been familiar with the decision in River Wear Commissioners v. Adamson (1877) LR 2 App Cas 743 . But in the case of a statute with such clear words, the legislative history, which at best in these times may be but a frail guide, can have no definitive weight. And in any case, as Viscount Haldane points out in his speech in Great Western Railway Co. v. Owners of s. s. Mostyn (1928) AC 57 , s. 74 of the Harbours, Docks and Piers Clauses Act upon the concession made by Lord Cairns himself, could not have been properly regarded as merely a procedural section. On any view, it imposed liability (1928) AC, at p 67 . Having regard to what is generally conceded to be the unsatisfactory nature of the decision in that case (see The Arrow Shipping Company Ltd. v. The Tyne Improvement Commissioners (The "Crystal") (4); Great Western Railway Co. v. Owners of s. s. Mostyn (1928) AC 57 and Workington Harbour and Dock Board v. Towerfield (Owners) (1951) AC 112 ), the case is not one in which a clearcut construction has been given to an Act. It is at best doubtful just what the legislature may be supposed to have concluded from the judicial reasoning. There is no warrant for supposing that the legislature took any different view of the decision in River Wear Commissioners v. Adamson (1877) LR 2 App Cas 743 than did the majority of the House of Lords in Great Western Railway Co. v. Owners of s. s. Mostyn (1928) AC 57 . Such a view is of no assistance in the resolution of this case. (at p514)

21. I turn now to the subsidiary question, for in my opinion, the reasoning of the members of this Court in the case of Townsville Harbour Board v. Scottish Shire Line Ltd. [1914] HCA 33; (1914) 18 CLR 306 is insupportable. The actual decision of the Court has no present bearing because of the provisions of s. 110 (2) of the Act. Thus, we are not here concerned with the reversal of a prior decision. The question here is whether we should accept reasoning, with which we do not agree, simply because it was employed many years ago to reach a decision which as a decision is not relevant to this case. (at p514)

22. I have already outlined the reasoning of the Justices of this Court. It was based upon a view of the reasoning in River Wear Commissioners v. Adamson (1877) LR 2 App Cas 743 which is now seen and since 1928 has been seen by the House of Lords to be clearly untenable. It was not based on any reasoning or consideration particularly applicable to Australian conditions. No doubt whilst it may be said that, logically, the Justices' reasoning in Townsville Harbour Board v. Scottish Shire Line Ltd. [1914] HCA 33; (1914) 18 CLR 306 would warrant the conclusion that the language of the statute presently under consideration ought to be read as subject to unexpressed exceptions or qualifications, all that was necessary for the conclusion reached by the Court in that case was the acceptance of the view that s. 74 did not apply in the case of an abandoned ship regarded as a ship not under the control of its owner or master, a ship under pilotage being approximated to the situation of such a ship. Thus the limited view of River Wear Commissioners v. Adamson (1877) LR 2 App Cas 743 taken by the majority of their Lordships in Great Western Railway Co. v. Owners of s. s. Mostyn (1928) AC 57 and by Lord Porter in Workington Harbour and Dock Board v. Towerfield (Owners) (1951) AC 112 was enough to sustain the decision of this Court in Townsville Harbour Board v. Scottish Shire Line Ltd. [1914] HCA 33; (1914) 18 CLR 306 if a ship under compulsory pilotage was equated with a ship of which the owner or master had ceased to have any control. But undoubtedly the section then under consideration was construed as being procedural only and not as imposing liability. (at p515)

23. It was said in argument that because the decision of this Court in Townsville Harbour Board v. Scottish Shire Line Ltd. [1914] HCA 33; (1914) 18 CLR 306 has stood unchallenged in Australia since 1914, it should be assumed that the community has acted upon the construction then placed on such words as are now found in s. 110 and also that the legislature not having intervened was content with the construction which had been placed by the Court upon the comparable section of the Queensland statute. But to this submission I think there are a number of what to my mind are conclusive answers. (at p515)

24. The construction placed upon s. 196 of The Harbour Boards Act of 1892 (Q.) did not affect the title to property or any matter of conveyancing. In so far as it might bear upon the conduct of ship owners or of their business it could, in my opinion, only affect the insurance of marine risks. Certainly conduct in the handling of ships could not be affected by the reasoning of the Justices of this Court. Insurance against such risks as damage to harbour installations is in general an annual affair and the negotiation of such contracts of insurance can scarce found a claim to the continuance of an insupportable construction of such plain words as those of the statute here under consideration. (at p515)

25. But, in any case, it is very difficult, in my opinion, to determine what view a reasonable ship owner or his insurer and their respective advisers would take of this Court's reasoning after the decision of the House of Lords in 1928 of the case of Great Western Railway Co. v. Owners of s. s. Mostyn (1928) AC 57 . From that time, the validity of the reasoning of this Court could scarcely have been beyond question in the mind of any ship owner or insurer or in those of their advisers. It was disowned by the House of Lords and cannot be said to have stood unchallenged for any considerable time. The very uncertainty of determining precisely to what conclusion the earlier reasoning ought properly to lead, as is the case here, should afford ground for deciding according to what the Court now thinks to be the right construction of the statute. (at p516)

26. The House of Lords is no longer bound by its prior decisions. See the Lord Chancellor's announcement (1966) 1 WLR 1234 . Having regard to what has been said in the English cases to which I have referred it seems to me that if occasion arises in the House of Lords to reconsider River Wear Commissioners v. Adamson (1877) LR 2 App Cas 743 it is likely that the House would not even support the limited qualification of the words of the statute which that case is said to support. In such a matter of maritime interest as the construction of a statute relating to the liability of owner, agent and master for damage to harbour installations there is still much to be said, in my opinion, for the desirability of uniformity of the relevant law. To accept and act upon the reasoning of this Court in Townsville Harbour Board v. Scottish Shire Line Ltd. [1914] HCA 33; (1914) 18 CLR 306 does little to maintain any such uniformity, for quite apart from whatever River Wear Commissioners v. Adamson (1877) LR 2 App Cas 743 might have decided the reasoning of this Court is clearly at odds with that of the majority of the Lords in Great Western Railway Co. v. Owners of s.s. Mostyn (1). (at p516)

27. In my opinion, for all of these reasons the circumstances of this case could not be brought within those which should persuade this Court to refrain from departing from reasoning of which it does not approve. The Court, in my opinion within limits of the kind mentioned by the Lord Chancellor in his announcement to which I have referred, should be ready to depart from the reasoning of an earlier case where it is convinced that that reasoning is clearly wrong and that the rights of the citizens should not for the future be tied to conclusions founded upon it. In my opinion, the earlier reasoning was plainly erroneous. We should not now accept it. There is, in my opinion, no reason why we should perpetuate error, rather than declare what we consider is the meaning of the statute. Indeed, there is good reason to act upon our own clear opinion of the statute which we are required to construe. (at p517)

28. In my opinion, the appeal should be allowed and it should be declared that s. 110 entitles the appellant to recover from the owner, agent or master damages for any injury in fact caused to its property by the Octavian. It will be observed that in so declaring I hold the section to be unqualified in any respect, not accepting that such facts as formed the basis of the decision in River Wear Commissioners v. Adamson (1877) LR 2 App Cas 743 constitute an exception to the operation of the section. (at p517)

McTIERNAN AND MENZIES JJ. Statutory provisions corresponding with s. 110 of the Geelong Harbor Trust Act 1928 (Vict.), as amended, have, over a period of nearly one hundred years, engaged the attention of the courts, the problem being whether such legislation imposes liability independently of fault. In River Wear Commissioners v. Adamson (1), Lord Cairns said of s. 74 of the Harbours, Docks and Piers Act, 1847 (U.K.) - a section corresponding with that here under consideration - that it was procedural only, dealing with the mode in which a right of action already provided by the common law should be asserted, but not creating a new and extended liability. In 1914 this Court adopted the same construction of s. 196 of The Harbour Boards Act of 1892 (Q.); Townsville Harbour Board v. Scottish Shire Line Ltd. [1914] HCA 33; (1914) 18 CLR 306 . (at p517)

2. The present question is whether we should now depart from this long standing decision and treat the section now under consideration as imposing liability independently of fault of the ship or those responsible for it, so that, even if the damage done by the Octavian to No. 12 Beacon in the Port of Geelong was the result of inevitable accident or act of God, the defendants, the ship's agents, are liable under the section to make good the damage. (at p517)

3. In our opinion we should adhere to the construction that has stood for so long. It may be that, when that construction was first adopted, the idea that culpability was the true basis of tortious liability was more firmly held than it is today, and, it is probable, that this idea influenced Lord Cairns more than it would a court now facing the problem for the first time. It is true too that River Wear Commissioners v. Adamson (1877) LR 2 App Cas 743 . , although it still stands, has not worn very well; cf. Great Western Railway Co. v. Owners of s.s. Mostyn (1928) AC 57 and Workington Harbour and Dock Board v. Towerfield (Owners) (1951) AC 112 . (at p518)

4. Nevertheless in Australia a decision of this Court has stood without question for over fifty years and has, inevitably, been present to the minds of those responsible for legislation made during this time, including the Act now under consideration. Moreover, commerce has, no doubt, been conducted on the footing of the correctness of what this Court has decided. (at p518)

5. In developing branches of the law a court of appeal, not absolutely bound by previous decisions, should not be too closely fettered by what has been decided earlier, but the construction of legislation seems to us to be a part of the law where change, by court order, carries no premium. In this field, reform is best left to Parliament by means of amending legislation with prospective effect only. (at p518)

6. We propose to follow the earlier decision of this Court and therefore to dismiss the appeal from Newton J., who properly regarded himself as bound by Townsville Harbour Board v. Scottish Shire Line Ltd. [1914] HCA 33; (1914) 18 CLR 306 , notwithstanding the subsequent decisions of the House of Lords to which reference has already been made. (at p518)

KITTO J. In Townsville Harbour Board v. Scottish Shire Line Ltd. [1914] HCA 33; (1914) 18 CLR 306 this Court held that s. 196 of The Harbour Boards Act of 1892 (Q.) should be understood in a sense similar to that which Lord Cairns had attributed to s. 74 of the Harbours, Docks and Piers Clauses Act, 1847 (U.K.) in River Wear Commissioners v. Adamson (1877) LR 2 App Cas 743 , with the result that what was literally an imposition of unrestricted liability on the owner of a vessel for any injury caused by the vessel to the works or property of a harbour board should be understood as proceeding upon, and accordingly limited to accord with, an assumption that the damage was of a kind for which compensation could be recovered at common law against some person, that is to say damage occasioned by negligence or wilful misconduct, and not by vis major or act of God. (at p518)

2. This decision has stood for more than half a century, and not a little legislation in the several States has been framed by draftsmen who have had it before them. (at p518)

3. We are here concerned with s. 110 of the Geelong Harbor Trust Act 1928 (Vict.), as enacted by an amending Act of 1951, a section of the same general character as the Queensland section though not in identical terms. On its face s. 110 seems plainly to have been enacted with the Townsville Case (1) prominently in mind, for the actual decision in that case, that injury caused to a wharf by a vessel while in the charge of a compulsory pilot was caused by vis major and therefore not within the section, was displaced by sub-s. (2), while nothing was done to displace the general proposition that injury by vis major in any other form was outside the section. In 1958 the Victorian Parliament repealed the section and re-enacted it without substantial alteration as s. 108 of the Geelong Harbour Trust Act 1958. (at p519)

4. In these circumstances I think we should hesitate long before holding, as the appellant invites us to hold, that the construction adopted in the Townsville Case [1914] HCA 33; (1914) 18 CLR 306 should be departed from. If there is any significant difference between s. 110 and the Queensland section it tends in favour of the construction rather than against it, for the introductory words, "The Commissioners may recover damages . . . from the owner master and agent of any vessel for any injury . . .", seem specially apt to reflect an intention that damages for which someone is liable shall be recoverable against the owner, master or agent even if he is not that someone himself. But it is enough to say that at least s. 110 is not more favourable to the Commissioners (except as regards a case of compulsory pilotage) than was the Queensland section. (at p519)

5. It may be, as was suggested in the argument, that in the Townsville Case [1914] HCA 33; (1914) 18 CLR 306 the members of the Court were mistaken in so far as they treated the view of Lord Cairns as the view of the majority of their Lordships. But the fact is that their Honours adopted Lord Cairns's opinion not merely as a matter of authority but as being in their judgment correct. In the face of such great diversity of opinion as appears in the later cases of Great Western Railway Co. v. Owners of s.s. Mostyn (1928) AC 57 and Workington Harbour and Dock Board v. Towerfield (Owners) (1951) AC 112 , it would be presumptuous to offer an opinion of my own as to the true effect of the River Wear Case (1877) LR 2 App Cas 743 or to say what construction I should have placed upon s. 110 if there had been no authorities to consider. In my opinion the proper course to take is to adhere to the construction which in this country has been settled for so long. A legislature whose intention is different may easily give effect to it by enacting a different provision. The ease with which this may be done gives, in my opinion, compelling significance to the fact that it has not been done yet. (at p519)

6. I would dismiss the appeal. (at p519)

OWEN J. I have had the opportunity of reading the judgment prepared by the Chief Justice and am in general agreement with the reasons he has given for allowing the appeal. I agree, therefore, with the order which he propses. (at p520)

ORDER

Appeal dismissed with costs.