Liability of Public Bodies.

Auckland Star, Volume XVII, Issue 236, 7 October 1886, Page 3

Liability of Public Bodies.

Important Judgment

At the It. M. Court this morning Hh Worship Mr H. (} Seth Smith gave judgment in tho case of Calob Wood v. Mayor and Corporation of the City of Auckland, claim £10, for damages sustained to plaintiffs horse by falling into a cesspit in Stanley-street. Mr Theo. Cooper appeared for the plaintiff, and Mr Cotter an behalf of the defence. His Worship gavo judgment as follows : — The plaintifl'in this casa seeks to recover damages for injuries sustained by his horso in consequence of tho alleged wrongful acts of thcilefondantg. It appears that the defendant had erected a water trough in a street within tho limits of the city of Auckland known as Stanley-street, near its junction with the strand. At tho end of this trough was a cesspit, also constructed by the defendants for tho purpose of carrj ing off the water from the trough, and I suppose aIBO some of the surface drainago of the street, into a sewer which ran in the immediate neighbourhood of the trough. Tho cesspit was closod by a grating to prevent rubbish from being carried into the sewer, and was covered over by wooden planking, and when in good repair seems to have been reasonably safe and sufficient for the purpose for which it was intended. On tho day in question, however, tho planking had in some way been removed, and the cesspit was loft open with the bars of tho pratinysticking up like Bpikos, thus making a very dangerous hole by tho side of tho trough. The plaintiffs servant came to the trough for the purpose of watering his horse when the animal became frightened, and fell into the hole and sustained the injuries complained of. Is thore any liability onthe part of the defendants? I may say that I do not think there is any evidence of contributory negligence on the part of the plaintiffs servant. He gives an accdunt of the occurrence not altogether satisfactory, but still not so obviously impossible that I should feel justified in refusing to believe it. His account is entirely uncontradfeted, and mast be taken for the purpose of this case I to be substantially true. X will therefore confine my attention entirely to tho question whether there was any broach of duty on the part of the defendants. By the lSSth section of tbo Municipal Corporations Act, lS7d, streets are vested in and placed under the control of the Council, who are empowered among other things to repair all streets with such materials, etc., as they may think fit. Although so far as 1 know thore is no express provision imposing on the Council tho obligation to repair a Btrcet, the case of the trough of Batharat v. Macpherson, 4S, LJ.P.C, is an authority to show that such an obligation is imposed upon tr.em, and that an action will lie against thorn for negligence in effecting repairs. In the case just cited a corporation \vero hold liable for damages occasioned by allowing a drain by the side of a Street to become dangerous. The dangerous state of the street appears to have been brought about by some heavy drainage works which had been constructed by the defendants or their predecessors. The present case ia somewhat similar to that, . but it differs, I think, in one veiy material respect, viz , that here the evidence tends to Bhow that the dangerous condition of the cesspit was brought about by the careless and improper conduct of drivera (including, in all probability, the plaintiffs eervant) in diiving across the cesspit to get to the water trough. This, in itself, would not exonerate the defendants from the obligation to use reasonable oare and diligence in keeping the pit in re pair. Whatever ulterior remedy the Council might have against the wrongdoer either by action or by procedure, under Sectiou IS9 the public safety would require them to affect the repairs with all reasonable speed. This leads to tho question how long the cesspit had been open before the plaintiffs horse fell into it? The plaintiff and his driver speak of haviDg seen it open for a month 6r three weoks before; but on the other hand McEvoy speaks to having seen the placo a day or two before the accident, when it appeared all right. The eamo witness speaks to having replaced tho cover himself on one occasion. Knight epeaks to having seen the cover undamaged within a month, and he also cays that he was in Stanley-street (it may havo been Monday) before the Occident, but did not notice tho hole. It then appears that at intervals during tho two or three weoks preceding the accident this hole was uncovered; that the cover had beon replaced not more than two, it may bo only one day, before the acoident, and that, thorefore, at the time of the accident it had only recently been removed. It seems that by way of greater prevention tho Council have now erected a fence to prevent carters and others from driving over the cesspit, and they have also replaced the wooden covering with an iron grating. This might, in some senses, be regarded as an admission that the previous arrangement was insufficient, but the circumstances of this case neutralise the force of these facts to a large extent. Their prosecution was taken not because the cesc-pit was in itself insufficient, but because it was liable to be injured, and had, in fact, been injured by the reckless conduct of carters, who persisted in driving ctat it. The case of the Mayor and Corporation of Naseby v. Johnstone N.Z L.R. 2, s.c, 277, established two propositions: (1) That a Municipal Corporation which allows a nuisance to remain on a street is liable to an action. (2) That if a structure (in that case a telegraph pole) becomes a nuisance in consequence of the act of the Corporation, they are liable to an action. This case differs from that. By erecting tho water trough they invited the public to usa it. Had the cesspit been a dangerous place in itself I have little doubt tho Corporation would havo been liable. Had it become dangerous in coDseqaonce of some wrongful or negligent actlof the defendant, they would in all probability have been liable. Here, however, the pit became dangerous in consequence of the negligence of third parsons, which takes the case out of both branches of the decision in Mayor of Naseby v. Johnstone. 1 think, however, that the Corporation would still be required to use reason able diligence in effecting repairs. The absence of reasonable diligence would amount to acquiescence, and the case would then fall within the principle of Elliot v. Breachley—that the owner of soil who allows a nuisance to be placed there is responsible (see Williams, J., N.Z., L.R., 2, S.C. at p. 282), and there would eeem to be no difference in principle betwosn allowing a nuisance to be placed on the soil and allowing it to remain on the soil, after it has been placed there, albeit the placing of it there was the act of some third person. But Ido not know of any case in which tho owner of soil has been held liable for a nuisance tortuously placed on his soil by a third porson, the existence of which nuisance was unknown to tho owner, and which he had not reasonable time to remove. It is, no doubt, highly important that the Municipal Corporation Bhould be required to use even a high degree of care in maintaining the streets under their control; but lam not satisfied in this case that there has been such want of care as would render the defendants liable. Judgment will, therefore, be for defendants, with costs £1 16s.