LIABILITY OF LOCAL BODIES.

Evening Star, Issue 11676, 7 February 1902, Page 6

LIABILITY OF LOCAL BODIES.

At the Magistrate's Court this mnfrdng Mr Carew, S.M., gave judgment in the case of Smith v. the Mayor, Councillor*, and Burgesses of St. Kilda, which was 'a claim for damages caused by plaintiffs horse falling into an open drain in Logie street, St. Kilda, on June 26. After reviewing the evidence, His Worship said:—“ The question seems to be whether the borough was gnilty of negligence in constructing and keeping open this nncovered ditch without any protection. The drain was constructed seventeen or eighteen years ago, when the Municipal Corporations Act, 1876, was in force. Section 218 reads; ‘The Council may cause to he constructed, of such dimensions and such materials as it thinks fit, upon or under the streets and public places within the borough, all such drains as -to from time to time shown on the said map, and may alter, cleanse, and repair the same, and until such map is made may construct, alter, repair, and cleanse all such drains aa the Council from time to time thinks needful for the efficient drainage of the borough. Under the same beading, ‘ln respect of drainage,’ section 228 reads; ‘ Nothing tn this Act shall be deemed to entitle the Council to create a nuisance or to deprive any person of any right or remedy he would otherwise have against the Corporation or any other parson in respect of any such nuisance.’ If the drain or ditch is a nuisance, it seems clear that it is outside of any statutory right, and that the plaintiff has a good cause of action. I have visited the locality and inspected the ditch and bridge, and I have nothing to say against the evidence of those who described the ditch as dangerous. Mr Smith said in his evidence; ‘This is the third horse of mine that got into the ditch.’ Mr M‘Meehan, a witness for the defendant, said that his boy fell into the ditch. Mr Hopcraft, who has sided in the neighborhood for about three years, gave evidence that he knew of _ a horse, a boy, a man, and a woman at different tiroes falling into the ditch. It seems fo me indisputable that an open ditch of that width and depth, several feet from the boundary in towards the centre <rf the road, is dangerous and an obstruction to a reasonable use of the road by the public, and is therefore a nuisance. It is ne justification that a nuisance is produced for the benefit of the public, or a large portion of it. Unless authorised by statute (R. ▼, Ward, 4 Axiolf, E. 384). “ An action *’ea against a person who allows or. places a source of danger such as an excavation (Barnes v. Ward, 9 Q. 8., 392), or a heap of stones, a log in a highway, so aa to interfere with those who lawfully use it (R. v. Watts, 1 Salk, 357; White v. Hindley Board, L.8., 10, Q. 8., 219). Other ease* are collected in the ‘ Encyclopaedia of English Laws,’ page 230. I think the plaintiff is entitled to recover. Judgment for plaintiff (£ls), costs of court (225), witnesses’ expenses (71s), and professional costs (265). Leave to appeal.”