F.C. 1898 RAYNER v. down or of removing a service pipe the mains must be interfered with, and the Board must as a matter of course know what is being done. It seems a very reasonable contention, although an unnecessary one here, that the individual has full authority over the street so as to lay down or remove a water pipe. It is said that he might remove a pipe for the purpose of repairing it. This may be so, but I do not think such a power would render the individual doing so liable for non-removal for repair. It Madden, C.J. certainly appears to be for the purpose of taking away the pipe that authority to remove it is given. A removal for repair would only be a colourable exercise of the right of removal. So far there is no express power to repair. SOCIETY LIMITED. The by-laws would be ultra vires so far as opening a street and intervening ground for the purpose of repair if they provided for a case in excess of the statute. Whatever the power to repair may be this is the clear result of the authority given by the Act, that where an owner intends to lay down or to remove a pipe, whether permanently or temporarily, and to sever the connection of the premises with the main, he is equally bound to give previous notice of his intention to the Board, so that the Board may have control over him. Consequently, if a person desires to repair a service pipe he must give notice. The language of the Act is to be construed liberally, and its meaning is this, that where mischief occurs causing damage, a man must know of such mischief and of the need of repair, so that he may be able to give the necessary notice of his intention to repair. It would be absurd to contend that any man was at liberty to go once a week and break up the street in order to examine his service-pipe, and that if he did not do that he would be liable if it fell into disrepair. Unless he did so he could not know that the pipe required repair until the water showed itself on the surface. When the owner of the pipe has knowledge of the defect, he then must give notice to the Board. On the other hand, clause 10 of the Board's by-laws provides that the Board may itself give notice to repair to the owner who fails to repair. Therefore the by-law merely provides for the case where the Board has knowledge of a defect in the pipe, and gives notice to F.C. 1898 RAYNER v. THE AUSTRALIAN WIDOWS' FUND LIFE ASSURANCE SOCIETY LIMITED. the owner accordingly. This seems to be the principle, and if so it gets rid of most of the difficulties presented in the argument namely, that the statute itself contemplates a liability to repair, which only arises when the person on whom the duty is cast has knowledge of the disrepair, and may only be acted upon when notice is given, based upon that knowledge. It appears in this case that the appellant had no notice or knowledge of the leak in the pipe until the 8th February, and that as soon as its agent received notice he took steps to remedy Madden, C.J. the defect. The water was cut off, and before the repair was effected the accident occurred by reason of the pre-existent but concealed leak. The Water Act by sec. 433 empowers the Board to open and break up the surface of a street for the purpose of putting down pipes, or of repairing, altering, or removing them. But sec. 434 provides that before the Board does break open the surface of a street it shall give notice of intention to do so to the municipal council under whose control the street is. Sec. 465 imposes upon an individual owner, who desires to exercise any right he has to break open the surface of a street, the duty of giving the same notice as is required by sec. 434 to be given by the Board to the municipal authority. Therefore the intention of the Act appears to be plain to give a right, if any occasion arises, to an individual to lay down a pipe in the street, and when once the pipe is laid down there is a duty to repair imposed upon the individual on notice and upon knowledge of the disrepair only. That being so, the case is disposed of. The appellant had no knowledge and no notice of the defect in the pipe, and therefore the damage which occurred is not damage for which the appellant is legally responsible. The appeal will therefore be allowed with costs, and judgment entered for the appellant. A'BECKETT, J. The contention on behalf of the respondent in this case is that, on the principle of Fletcher v. Rylands, the appellant is responsible for the injury caused to the road by leakage of its pipe, although the fact that the pipe was leaking was not known, and could only have been discovered by opening up the street. This argument involves the view that, supposing F.C. 1898 RAYNER v. THE AUSTRALIAN WIDOWS' FUND LIFE ASSURANCE SOCIETY LIMITED. A'Beckett, J. the accident to have occurred before any notice was given, the appellant would, on the authority of this case, have been responsible for it. There is much in that authority, and in the position of the appellant, to justify this extreme view. The water which the appellant took under its control is dangerous. The fact that the leakage was not discovered, in so far as any question of negligence is involved, cannot ordinarily be urged as a reason for escaping from liability caused by the leakage. In Fletcher v. Rylands the existence of the cause of the mischief was unknown to the defendant. There was no real negligence in the ordinary sense of the term, but there was legal responsibility. Although in this respect the authorities that have been referred to appear to fix the liability, none of them go to the extent that the person having within his control this water is legally an absolute insurer against any accident which may happen through the escape of that which is under his control. It is not said that, under all circumstances, he would become an insurer, and, therefore, responsible for any damage resulting. But a duty is imposed upon him, and without negligence he may fail in the performance of that duty, and may be liable. The duty in the cases mentioned, and in this particular case, would be a duty not merely to repair when it became necessary to repair, but a duty of constant vigilance, in order to see that the necessity for repairs had not arisen. In ordinary circumstances, with reference to a pipe in a place to which a person had free access, such a duty would arise-a duty to exercise such vigilance in order to ascertain that the pipe was constantly in a fit state to hold and carry water. But here I have to consider the special position in which this pipe was laid, and whether that position and the conditions imposed by the Legislature do not naturally, reasonably, and consistently relieve the appellant from that duty of constant vigilance. In my opinion they do. The pipe was in a position in which it would be impossible for the defendant to ascertain whether it needed repairing without doing that which the Act failed to provide means for doing. It would be a highly inconvenient and injurious right to be exercised as against the public at all times and at the pleasure of the person who had laid down the pipe-quite apart from its cost-to open a street in order to ascertain the condition of that pipe. The Legislature contemplated the pipe being in that position and made provision for regulating its repair. Under that provision specific regulations were made, imposing a duty to repair after notice was given. Speaking for myself, I should say that when the defect was obvious it would not be an answer to an action for neglect to repair to say that no notice had been received. But, at all events, a proper mode of requiring repairs to be made is provided for by the regulations and under the statute by virtue of which the pipe may be laid down. The person laying it down has no power conferred upon him to investigate the state of the pipe. Under such circumstances, therefore, I think it was wrong to hold that the same duty of constant vigilance is imposed upon the appellant as in the cases to which I have referred. To do so would be to push the principle of these cases to an unreasonable extent. It would be extending the principle to a case in which it would be in the highest degree harmful, not only to a single individual, but to the public at large. Such an extension is, I think, opposed to the statute, and there is, I think, nothing in these cases which forces us under such circumstances to say that the duty was of that extent, requiring as a matter of law that a person should do that which, as a matter of fact, he probably could not do. It is to be remembered that the learned Judge of the County Court found that there was no negligence. That finding means that the pipe was in good order when laid down, and that there was no reason for suspecting that it was otherwise until the notice was given. The learned Judge adverts in his reasons for judgment to certain things which he considered might have been done by the appellant for example, to give a certain notice which would warn the public-to avert the consequences of the leakage of the pipe when discovered. It is not quite clear to me how far the learned Judge's mind was affected by the omission to do these things; but I think that in whatever way he may have regarded the omission there was not such a duty cast upon the appellant as would subject it to an action for omitting to give a notice. warning the public in the manner in which the learned Judge says the appellant might have been expected to give it when it F.C. 1898 RAYNER V. A'Beckett, J. F.C. 1898 RAYNER v. THE AUSTRALIAN WIDOWS' FUND Hood, J. was informed of the injury to the pipe. I wish to add that, while concurring in the judgment of the Court, I do not do so upon the view that the principle laid down in the case of Fletcher v. Rylands would have no application to the case of a leaking pipe. I am guided by the statutory conditions under which this pipe was laid down. HOOD, J. Nothing was done in this case by the appellant or its predecessor in title but what was authorized by the Water Act, and no neglect has been proved, yet it is contended that the appellant is liable. If that is so, the liability must rest upon the principle that a man who brings a dangerous thing upon his land must keep it there at all hazards. I do not think that obligation exists in cases where the person whom it is sought to make liable has no legal control over the dangerous thing, but I agree with the view that the Act itself affords an answer to the action. The Legislature must be taken to have known that the water in the pipe was a dangerous thing, and yet it has given authority to put that dangerous thing under the road without giving to the person who puts it there power to look after it and see that it does not escape. That being so, the only fair meaning to give to the Act is that it affords protection to a person who lays down a water pipe and is not guilty of negligence. To hold otherwise would be to hold that a person against whom an action is brought for the escape of water from a pipe so laid has no means of protecting him self. Appeal allowed with costs. Solicitors for appellant: Eggleston & Derham. R. H. C. |