F.C. 1898

RAYNER

V.

THE

AUSTRALIAN

WIDOWS' FUND

LIFE ASSURANCE SOCIETY LIMITED.

third ground, but it is material upon the other two. Firstly, as to
nuisance, the highway was rendered less commodious by reason
of the leakage from the appellants' pipe. In fact, it was in a
dangerous condition. A public nuisance was created: Garrett
on Nuisance (1st ed.), p. 33. The respondent was injured by
reason of this nuisance, and has therefore a cause of action:
Benjamin v. Storr (k). It was the duty of the appellant to
keep its pipe in such a condition that it did not become, or oc-
casion by reason of its want of repair, a nuisance in the highway.
Persons in the possession of premises must keep them in such a
condition that the safety of the public is not endangered: R. v.
Watts (1); Chauntler v. Robinson (m); Gandy v. Jubber (n)
disapproved on a point immaterial to the present argument (0);
White v. Hindley, etc., Board (p); Tarry v. Ashton (q) per
Lush and Quain, JJ., discussed by Clerk and Lindsell, Law of
Torts (2nd ed.), p. 376, 377; Mayor, etc., of Bathurst v. Mac-
pherson (r); Brown v. Eastern, etc., Railway Co. (s); Attorney-
General v. Tod Heatley (t). This duty is absolute: it is an
incident of possession, and independent of the care, or want of
care, on the part of the appellant. Negligence is not an
ingredient of liability in such cases: Jeffry v. Pancras
Vestry (u); Braine v. Summers (v); Tarry v. Ashton (w);
Bamford v. Turnley (x); Tobin v. Mayor, etc., Mel-
bourne (y); Attorney-General v. Tod Heatley (z). Cases
of this description have been referred to
to the doctrine
res ipsa loquitur, and the facts treated as prima facie
evidence of negligence: Byrne v. Boadle (a); Kearney v.
London, Brighton, etc., Railway Co. (b). But it is submitted
that they really fall within the principle contended for, otherwise
it is difficult to reconcile them with Tarry v. Ashton. If it be a

(k) [1874] L.R. 9 C.P. 400.

(7) [1703] 1 Salk. 357.

(m) [1849] 4 Ex. 163.
(n) [1864] 5 B. & S. 78.
(0) [1868] 9 B. & S. 15.
(p) [1875] L.R. 10 Q.B. 219.
(q) [1876] 1 Q. B.D. 314.
(r) [1879] 4 App. Cas. 256.
(8) [1889] 22 Q.B.D. 391.
(t) [1897] 1 Ch. 560.

mere question of negligence in such cases, then the doctrine res ipsa loquitur would be just as applicable to things falling in private premises and injuring persons lawfully there, but it does not appear to have been pushed to that extent. Scott v. London and St. Katharine Docks (c), Welfare v. London, etc., Railway (d), Collis v. Selden (e), Firth v. Bowling Iron Co. (f), Crowhurst v. Amersham Burial Board (g), Wilson v. Newberry (h) were also referred to. Clerk and Lindsell, Law of Torts (2nd ed.), pp. 376, 378, 391, contend for a still wider

principle.

[MADDEN, C.J., referred to Richardson v. Melbourne Tramway, etc., Co. (i).]

That was a case of contract.

Secondly, this case falls within the principle laid down in Fletcher v. Rylands (k). It is the duty of the appellant to keep its water on its own premises at its peril. The doctrine forms part of the law of trespass and the law of nuisance. This is a duty incident to the possession of property, "and does not depend on the acts or omissions of other people; it is independent of what they may know or not know of the state of their own property, and independent of the care, or want of care, which they may take of it:" Humphries v. Cousins (l); Tobin V. Mayor, etc., Melbourne (m); Powell v. Fall (n).

[HOOD, J. Would a person be liable if he took a water-cart into the street, and some mischievous person put a hole in the tank and let the water out, to the injury of a person passing along the street?]

No; that would be what is described in Nichols v. Marsland (0) as a vis major. The point is dealt with by Bramwell (p). See also Box v. Jubb (q). Vis major must amount to an inevitable accident: The Merchant Prince (r).

(e) [1865] 3 H & C. 596.
(d) [1869] L.R. 4 Q.B. 693.

(e) [1868] L.R. 3 C.P. 495.

(f) [1878] 3 C.P.D. 254.

(g) [1878] 4 Ex. D. 5.

(h) [1871] L.R. 7 Q.B. 31.

(i) [1895] 17 A.L.T. 45.

(k) L.R. I Ex. 265; L.R. 3 H.L. 330.

(2) [1877] 2 C.P.D. 239, at p. 244.
(m) 7 V.L.R. (L.) 488.

(n) [1880] 5 Q.B.D. 597.

(0) L.R. 10 Ex. 255; 2 Ex. D. 1.

(p) L.R. 10 Ex., at p. 259.

(2) [1879] 4 Ex. D. 76.

(r) [1892] P. 179, at p. 188.

F.C.

1898

RAYNER

v.

THE
AUSTRALIAN

WIDOWS' FUND
LIFE
ASSURANCE

SOCIETY

LIMITED.

F.C.

1898

RAYNER

v.

THE AUSTRALIAN WIDOWS' FUND LIFE ASSURANCE SOCIETY LIMITED.

[HOOD, J. Was not the use by the appellants of its premises an ordinary and reasonable user? Does not that exclude the doctrine of Fletcher v. Rylands? He referred to Addison on Torts (5th ed.), p. 338, and to Peers v. Victorian Railways Commissioners (s).]

No. The principle is that if water naturally rising in a person's premises escapes in the ordinary and natural user of the premises, then that person is not liable: Fletcher v. Rylands (t). It is not correct to say that if a person brings water artificially on to his premises, and that if it escapes in the ordinary and natural user of those premises, then he is not liable. Wilson v. Waddell (u) is a case of water coming naturally on to land, and so are the cases cited by Addison, and they do not support his position; and in Addison, at p. 564, there is a passage that makes to the contrary. A person is liable if waters naturally falling on his premises escape by reason of the non-natural user of his premises: Hurdman v. NorthEastern, etc., Co. (v). Peers's Case was but an application of that case.

[MADDEN, C.J. Is not the doctrine of Fletcher v. Rylands confined to large bodies of water which are obviously dangerous?]

No; that view is opposed to the reasoning of the class of cases which determines that persons occupying buildings in common take the risk of leakage from their common service pipes: Carstairs v. Taylor (w); Ross v. Fedden (x); Anderson v. Oppenheimer (y); Gill v. Edouin (z).

[HOOD, J., referred to Blake v. Land, etc., Company (a); Garrett on Nuisance (1st ed.), p. 123.]

The reasoning of all these cases would be unnecessary if the view just put were right. Blackburn, J., who propounded the doctrine of Fletcher v. Rylands, was a party to the decision

in Ross v. Fedden. The view is also opposed to the decision in Humphries v. Cousins.

[A'BECKETT, J. In the present case there was the whole power of the Melbourne Water Supply behind the leak, and so the escape would be obviously dangerous.

MADDEN, C.J. Humphries v. Cousins was a case of filthy water.]

That can make no difference in principle. The class of cases last cited establishes that; also Snow v. Whitehead (b). Sutton v. Card (c) suggests that the fact that the water is filthy does make a difference, but the case is unsatisfactory and has even been doubted by Clerk and Lindsell, Law of Torts (2nd ed.), p.

371.

[HOOD, J., referred to Madras Railway Company v. Zemindar of Carvetinagarum (d); Pollock on Torts (1st ed.), p. 402; and to Blyth v. Birmingham Waterworks Company (e); Sharp v. Powell (ƒ).

The first case was one in which water was stored compulsorily, and the other two are applications of the doctrine of natural and probable consequences. As to the Water Act, the appellants' position is that possessors of pipes in highways are by virtue of the Act put in a better position than if the pipes were within the boundaries of their own premises. The Act, it is suggested, makes lawful what would otherwise be unlawful-namely, the laying of pipes in highways -but puts the possessors of those pipes in the same position as if they were on their own premises. The Act does not authorize anyone's water to escape into the highway, nor does it contemplate that it should so escape. The Act does not authorize a nuisance. Cases on other statutes afford little help. Each case must turn on the construction of the particular statute then in question but the burthen lies on those who seek to establish that the Legislature intended to take away private rights to show that by express words or necessary implication such an intention appears: Metropolitan Asylum District v. Hill (g), per Lord

(b) [1884] 27 Ch. D. 588. (e) [1886] W.N. 120,

(d) [1874] 30 L.T. 770.

(e) [1856] 11 Ex. 781.
(f) [1872] L.R. 7 C. P. 253.
(g) [1881] 6 App. Cas. 193.

F.C.

1898

RAYNER

V.

THE AUSTRALIAN WIDOWS' FUND LIFE ASSURANCE

SOCIETY

LIMITED.

F.C.

1898

RAYNER

v.

THE AUSTRALIAN WIDOWS' FUND LIFE ASSURANCE SOCIETY LIMITED.

Blackburn, at pp. 203 and 208. The Act draws a broad dis-
tinction between the pipes of the water supply authority and
the pipes of private individuals: Secs. 425, 433-436, 458, 459.
The water authority has no power to repair private pipes:
Secs. 433 and 455. The pipe in the present case was laid under
the powers contained in sec. 459, or it was unlawfully in the
roadway. The laying was permitted, but it was not compulsory,
and there is no compulsion to take water. The great regard of
the Legislature for the rights of the public is shown in many
sections: See secs. 434-437, 460-469, 487. Sec. 463 gives
to owners a power to remove their pipes, and that covers
removal for the purpose of repair. Sec. 465 gives a power to
repair, and sec. 487 assumes that there is power to repair,
and in the interest of the public appoints a public body
to regulate and enforce it. See, as to effect of this, Montreal v.
Standard, etc., Company (h). Sec. 469 gives the water authority
supervision over the laying and alteration of pipes, but not over
repairs. As to the by-laws, clause 10 creates an offence if pipes
be not repaired. It does not prohibit repairs until after notice.
Clauses 14-16 provide, in the interests of the public, that only
competent persons shall lay, alter, or repair pipes. Clause 17 only
applies when the pipes of the Board are affected, and clause 37
provides for the manner of giving notices when notices are
required. There is power under the Act and by-laws for
owners to investigate the state of repair of their pipes.
The supervision of the water authority, if any such right of
supervision exists over matters of repair, is for the benefit
of the public, and certainly not for the purpose of relieving
owners of liability.
liability. Unless the appellant is liable, the
respondent must bear his loss himself, for the municipality
is not liable: Clarkbarry v. Mayor, etc., of South Melbourne (i),
and it has no power to repair the pipe; and the water authority
is not liable-it is not their pipe, and they have no power to re-
pair it. The statutes under which Snook v. Grand Junction, etc.,
Company (k) and Green v. Chelsea, etc., Company (1) were decided
do not appear in the reports. Possibly the storage of the water