BOROUGH OF BALCLUTHA v. BOWER.

Otago Witness, Issue 2883, 23 June 1909, Page 61

BOROUGH OF BALCLUTHA v. BOWER.

APPEAL ALLOWED.

His Honor Mr Justice Williams on th« ; 18th gave judgment in tho appeal ease, I the Borough of Balclntha against Frank Bower. The facfe of the case were than appellants gave a grazing license over iv reserve to respondent on which he grazed his cow. The reserve was also used as a depot for rubbish, and respondent's anct other persons' cows died from poisoning 1 by eating laurel and otheir leaves deposited 1 ori the rubbish heap. Respondent had 6.ued t iiie borough for the- value of the cow, 1 and the magistrate had given judgment in [ his favour. His Honor said : The question is, whafc J is tho meaning and effect of the words j "without responsibility"? (inserted in the, grazing license). Obviously, the words wcro ' inserted for the purpose of relieving the! borough from a responsibility which th-a borough would have been under by virtue of the contract if the words had not bsenf inserted. Had the words not been inserted, the borough would have- been responsible to this extent only : that it would hav< >' been its duty to take reasonable care of the cow, and if it failed in that duty ( aiiid th-e cow was lost or injured, tlie bovourrh would have been responsible ir' , damages. The. failure to take reasonable" care would Have been negligence, and the' borough would have bsien responsible for negligence. It was precisely for the purpose of relieving the borough from this,' its only i-espo risibility, that the words wero inserted. If the borough had knowingly-, and wilfully done something the effect 08 which must have been to injure the cow, ! that would have been something more tha-nf ! mere negligence and different considerations 1 would apply. The magistrate, however, lias only found ihaA the borough was negligent, and there is no evidence that it was more than negligent. From liability for more negligence the words "without re- ; sponsibility " are a protection. _ ApptraJ I allowed.