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The Pamphlet Collection of Sir Robert Stout: Volume 80

Local bodies' statutory liabilities

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Local Bodies' Statutory Liabilities

Sydney: The Law Book Company of Australasia Limited, 72 Castlereagh Street.

1908.
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Local Bodies' Statutory Liabilities.

What the liability of local bodies in charge of roads for non-repair of such roads may be has led to much diverse judicial opinion. The question now is whether the many recent decisions have finally determined what the law is.

The first case always cited is Russell v. The Men of Devon (2 T.R. 667) decided in 1788. That was an action on the case. The plaintiff sued "the men dwelling in the county of Devon "to recover satisfaction for an injury done to the waggon of the plaintiffs in consequence of a bridge being out of repair which ought to have been repaired by the countv. The matter came before the Court on a demurrer to the declaration. There were two main grounds of objection to the relevancy of the action (1) that the defendants were not a corporation and that the defendants varied from day to day and a suit against them was therefore impossible, and (2) on the wider ground "that no individual could maintain an action against the defendants for any neglect to repair a road that ought to be repaired by the public." In the judgment the main reliance for allowing the demurrer was on the first ground. Lord Kenyon said, "Many of the principles laid down by the plaintiff's counsel cannot be controverted; as that an action would lie by an individual for an injury which he has sustained against any other individual who is bound to repair. But the question here is, whether this body of men who are sued in the present action are a corporation, or qua a corporation against whom such an action can be maintained. If it be reasonable that they should be bv law liable to such an action, recourse must be had to the Legislature for that purpose."

It is true Lord Kenyon refers to the passage quoted by defendants' counsel from Brookes' Abridgement, namely, "Accion sur le case," s. 93: "Coen chemin est irrepayer issint q ieo mire mon cheval ieo naûa ace vs cesty q doit repairer ceo car est popul et serra reforme p prœstmt qd nota p. Heydone et 6," saying: "Therefore I think that this experiment ought not to be encouraged; there is no law or reason for supporting the action; and there is a precedent against in Brooke; though even without that authority I should be of opinion that this action cannot be maintained." Mr. Justice Ashurst also referred to Brookes, saying, "This case stands in principle; but I think the page 4 case cited from Brookes' Abridgement is a direct authority to show that no such action could be maintained; and the reason of that case is a good one, namely, because the action must be brought against the public."

The law rested here so far as suing the inhabitants as a whole is concerned. The creation of corporations and of companies, rare before the nineteenth century, increased in that century by leaps and bounds. Local authorities were created. At first the incorporation was not complete. Surveyors of highways who could be sued were appointed, and they stood in relation to the public as quasi-corporations, just as at first public companies and banks had their "public officers," who could sue or be sued on behalf of the bank or company; and the question then arose, seeing that the difficulty of suing an ever-changing body like "the inhabitants" of a county had been got rid of, had a person injured a right of action against the surveyor.

In asking the Courts to so rule there was a principle of law involved which was affirmed in the Mayor, etc., of Lyme Regis v. Henley ([1834] 2 C1. and Fin. 331). In that case the Mayor and Burgesses of Lyme Regis had been granted by letters patent from the King a remission of ancient rent payable to the King, and he willed that the Mayor and Burgesses and their successors should at their own cost thenceforth for ever repair, maintain, and support all and singular the buildings, banks, sea-shores, etc., and the pier, etc., at their own costs and charges. The sea-walls were allowed to fall into disrepair, the plaintiff (Henley's) messuages were injured by the invasion of the sea, and the question was, "Were the Mayor and Burgesses liable in damages to the plaintiff? "The ease was referred by the House of Lords to the Judges, and Mr. Justice Park delivered the unanimous opinion of the Judges that the defendants were liable, and the House of Lords concurred. The grounds of the decision were (1) that the Charter did cast on the defendants the burden of repairing the sea-walls, etc., and the corporation having accepted the benefits conferred by the Charter must bear the burden conferred by the Charter; (2) that the duty was a public duty for which an indictment would lie; (3) that an action would lie. The ground for thus holding was that if the liability arose by prescription both an indictment and an action would lie, citing The Mayor, etc., of Lynn v. Turner (Cowp. 86); Churchman v. Pienstal Show (225 Corth. 199); Paine v. Partridge (Narda. 162). 'The opinion says that' it is clear and undoubted law that wherever an indictment lies for non-repair, an action on the case will lie at the suit of a party sustaining any peculiar damage. Now we are unable to see any sound distinction between a liability by prescription [unclear: but locally]

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One case cited in cases on the liability of corporations to repair is Couch v. Steel ([1854] 2 Ell. and Bl. 402), though the decision has been questioned in Atkinson v. The Newcastle Waterworks Co. (L.R. 2 Ex. 441) and doubted in Cowley v. New Market Local Board ([1892] A.C. 345), and cannot now, therefore, be considered as a proper declaration of the law. In that case, as the Shipping Act (7 and 8 Vict. c. 112, s. 18) provided that a ship-owner must have proper medicine on board, a sailor who suffered injury through the non-supply of medicine was held entitled to recover damages. There was another principle involved, namely, the statute provided a penalty if the ship-owner committed a breach of the statute, but it was held that that did not prevent an action for the peculiar damage sustained. The principle of the common law relied on was said to be stated in Comyn's Digest and Coke's Institutes. It is laid down in the Digest as follows (see "Action upon Statute F."):—"If a statute provide a remedy for the party grieved, though it did not give any express penalty or forfeiture, he may have an action upon the statute." It is also stated in the Digest:—"So in every case where a statute enacts or prohibits a thing for the benefit of a person, he shall have a remedy upon the same statute for the thing enacted for his advantage, or for the recompense of a wrong done to him contrary to law." The Digest quotes Cap. L Statute Westminister the Second "Super vero statutis in defectum legis et ad remedia editis, ne dimitius querentes cum ad curiam regis venerint recedant de remedio desperati, habeant brevia in suo casu provisa," etc.

"Moreover concerning the statutes where the law faileth, and for remedies, lest suitors coming to the King's Court should depart from thence without remedy, they shall have writs provided in their cases," etc.

Another case relied on to show that a liability rests on the local body charged with repair of a public work to compensate one who sustains particular damage through a breach of the statutory duty is Hartnell v. The Ryde Commissioners ([1863] 4 B. and S. 361).

The validity of this decision has, however, been questioned by Lords Halsbury and Herschell in Cowley v. The Newmarket Local Board. In that case by the Ryde Improvement Act which incorporated the Towns Improvement Act 1847, the Ryde Commissioners were empowered to levy rates and to repair the highways of which the management was vested in them. They were liable to indictment if they neglected to repair, in the same manner as the inhabitants of a parish were liable. It was held by Crompton and Blackburn JJ., that they were liable for damages sustained by a person through the non-repair page 6 of a street. It was said by Lords Halsbury and Herschell that the Judges relied upon a particular statute. This is true, but if the statutory references are considered it will be seen that there is no hint in the statute that the Commissioners were to be liable to actions. All that was said was that they were liable to repair and to be indicted for non-repair, and it was on this account that they were held liable. Mr. Justice Crompton said, "Under the Towns Improvement Act 1847, s. 49, the Commissioners were guilty of a misdemeanor in refusing or neglecting to repair; and being so, if a private person suffers special damage from the repairs not having been done, they are within the general rule of law, and unless they can discharge themselves they are liable to an action." Blackburn, J., was of the same opinion.

It will be necessary now to consider the two classes of cases in which the local body or local authorities have not been held liable. The first class to which reference may be made is where the statute imposes a liability and also a penalty for the breach. In such a case it has been held that the statute by providing for a penalty has (contrary to the decision in Couch v. Steel) inferentially deprived a person of damages for an injury he has personally sustained.

One leading case is Atkinson v. Newcastle Waterworks Company ([1877] L.R. 2 Ex. 441). The defendant company as an undertaker of waterworks under The Waterworks Clauses Act 1847 was bound by statute (1) to fix and maintain fire-plugs (2) to keep their pipes to which fire-plugs were fixed at all times charged with water at a certain pressure, and to allow all persons at all times to use the same for extinguishing fires without compensation. A penalty of £10 was recoverable summarily (half the penalty to go to the informer) for neglect of either of these duties. It was held that the plaintiff could not recover, though he averred in his declaration the fire-plugs were not charged with water, and that in consequence thereof he could not obtain a, proper supply of water to extinguish the fire on his premises, and his timber-yard and sawmills were in consequence burned down. The judgment was that of Lord Cairns, Chief Justice Cockburn, and Lord Justice Brett. Lord Cairns stated that the Act created a statutory duty, but it did not follow that the breach implied an unknown liability as to damages. He said, "In the one case the undertakers would know beforehand what they had to meet as the consequence of their neglect. They would come under definite penalties. In the other they would virtually become gratuitous insurers of safety from fire so far as water is capable of producing that safety, of all the houses in the district, over which their powers were to extend." He also pointed out that in certain eases the penalty was to go to those injured, for example, page 7 if there is no supply for domestic purposes, the penalty was 40s. a day, to go to the householder deprived of his supply, and he asked, "Why is it that in some cases there is a penalty which is to go into the pocket of the person injured, and not in the case of neglecting to keep the pipes fixed to the fireplugs charged under the proper pressure?" The other Judges adopted this reasoning. It will be noticed, therefore, that this case does not necessarily conflict with Couch v. Steel, for in the statute construed there were provisions which might well be held to negative the implication that a private remedy was left open to the person injured. Chief Justice Cockburn put it the other way, saying, "that the particular Act does not by implication give a person who may be injured by the breach of the duties thereby imposed, any remedy over and above those which it gives in express terms."

As to the liability of surveyors the case of McKinnon v. Penson ([1853] 8 Ex. 319; [1854] 9 Ex. 609) decided that a surveyor was not liable to an action for damages by a person who has been injured by the non-repair of a bridge on a highway. The bridge became ruinous, and the plaintiff's servant, driving across the bridge was precipitated with his carriage into the water. It was held in the Court of Exchequer and afterwards in the Exchequer Chamber that no action lay. Chief Baron Pollock said, in delivering the judgment of the Court, "We think it clear on the full consideration of that case (Russell v. The Men of Devon) that the only reason why the action would not lie was because the inhabitants of the county were not a corporation and could not be sued." It will be observed that he does not ground the decision on the passage from Brookes' Abridgement. The Exchequer does not refer to Brookes in its judgment, and practically bases its judgment on the principle that the statute did not expressly give a remedy, and one could not be inferred, though Baron Alderson during the argument quoted the passage from Brooke applicable to the case. In Young v. Davis (2 H. & C. 197) the same question was raised, and the Court of Exchequer Chamber held without calling on the defendants to argue that the plaintiff was without a remedy, and said, inter alia, "To read the Act as creating a duty on the surveyor to a class more extensive than the parish which employs him, would introduce an anomaly not at all within the general scope of the Act, namely a new liability to action imposed on a servant for a mere neglect of his employer's duty, in respect of which, moreover, such employer in this particular mode of proceeding, is irresponsible."

The Court of Queen's Bench in Gibson v. The Mayor of Preston ([1870] L.R. 5 Q.B. 218) had to consider whether under The Public page 8 Health Act 1848 [11 and 12 Victoria cap. 63] there was not a right of action given to a person injured through the neglect of the local body charged with the repair of the highways. A similar question had been raised as to the liability of the vestry under the Metropolis Local Act, 18 and 19 Victoria cap. 120. In Parsons v. 8t. Matthews Bethnal Green (L.R. 3 Common Pleas 56) the Court of Common Pleas held that though the duties and liabilities of surveyors of highways had been transferred to the Vestry, it did not appear from the statute—there was no mention of it—that the duties and liabilities of the parish had been transferred, and consequently the Vestry could not be sued for non-feasance. The Court of Queen's Bench followed the Court of Common Pleas and decided against the plaintiff and said, "It is incumbent on a plaintiff who seeks to establish that such a right is exceptionally given, to persons sustaining an injury in a particular district, to show distinctly that the Legislature had such an intention in passing the enactment to which such an effect is attributed."

White v. The Hindley Local Board ([1875] L.R. 10 Q.B. 219) did not invade the principle of the cases just cited. The plaintiff was injured by a grid or grating in a sewer being in a defective state, and it was held that the local board as the corporation in which the sewers were vested was liable. Mr. Justice Blackburn said, "Mr. Baylis is justified I think in saying that the local board so far as they are surveyors of the highway are not liable for the non-repair of the grid, because the inhabitants are the persons liable for the non-repair of the highway, and the local board are not substituted for the inhabitants, but are only made surveyors of highways." The part I italicise is worthy of notice. It shows the ground on which Mr. Justice Blackburn conceived that the cases of Gibson v. The Mayor of Preston and Parsons v. St. Matthews Bethnal Green were based. The fact the local body was proprietor of the sewer made them liable. Suppose they had been as they are in New Zealand municipalities proprietors of the streets, would they be liable? Baron Martin said in Young v. Davis ([1862] 312 J. Ex. 250 at 254), "No case has been brought before us where an action has been held to be maintainable against a person bound to repair a road ratione tenurce" Very different language is used by the Privy Council in the case I shall next refer to. One case that has given rise to much controversy and seemed to lay down a new rule was the case of the Borough of Bathurst v. Macpherson ([1879] 4 App. Cas. 256). The Municipality of Bathurst had in accordance with s. 117 of The Municipalities Act of New South Wales, "the care, construction and management of public roads." There was no direct statutory provision declaring that the municipality must repair the roads. There was, page 9 however, a power to repair, and for the municipality to enter upon private lands and take material for repair. Their Lordships of the Privv Council decided that a person injured through a barrel drain in a public road having fallen into disrepair was entitled to sue the municipality for damages. The grounds of the decision were (1) That the muncipality had the care, construction and management of the roads and streets, the construction of the barrel drain was within the powers of the municipality and that they had power to repair it. "Their lordships are of opinion that under these circumstances a duty was cast upon them to keep the artificial work which they had created in such a state as to prevent its causing danger to passengers on the highway, which but for such artificial construction would not have existed, or at least to protect the public when it arose by filling up the hole or fencing it." (2) After quoting White v. Hindley Local Board their lordships said, "In this case the barrel drain, even if the property of it did not belong to the appellants, was not only made by the appellants, but the sole control and management of it, were by statute vested in them, and in their lordships' view these circumstances threw upon them a duty of a similar kind to that which was held to exist in the case just cited." They held that a person being injured an action lay, quoting Henley v. The Mayor and Burgesses of Lyme Regis. They quoted Lord Tenterden's decision in the Court of Queen's Bench in error (3 Barn, and Ad., pp. 77, 92 and 23) as follows:—

"We think the obligation to repair banks and sea-shores is one which concerns the public in consequence of which an indictment might have been obtained against the plaintiff in error [that is the corporation defendants] for their general default from whence it follows that an action on the case will lie against them either for a direct and particular damage sustained by an individual as in the ordinary case of a nuisance in a highway by a stranger digging a trench, etc., or by the act or default of a person bound to repair rationo? tenures. An indictment may be sustained for a general injury to the public, and an action on the case for a special and particular injury to an individual." By adopting the language of this judgment as opposite to the non-repair of a drain in a road there is no doubt that their lordships placed the responsibilty of a local body in charge of the roads higher than it had hitherto been placed, and since that decision there have been many decisions that require consideration. They are—Blackmore v. Vestry of Mile End Old Town ([1882] 9 Q.B.D. 451); Kent v. Worthing Local Board ([1883] 10 Q.B.D. 118); commented on in Moore v. Lambeth Waterworks Company ([1886] Q.B.D. 162); Cowley v. Newmarket Local Board ([1892] App. Cas. 345); Municipality of Piclon v. Geldert ([1893]. page 10 App. Cas. 524); Thompson v. Mayor of Brighton and Oliver v. Horsham Local Board ([1894] 1 Q.B. 332); Municipality of Sydney v. Bourke ([1895] App. Cas. 433); Maguire v. Corporation of Liverpool ([1905] 1 King's Bench 767).

Kent v. Worthing Local Board practically followed the Borough of Bathurst v. Macpherson. The local authority had the waterworks and highways under their control. Through the wearing away of a highway the cover of a valve projected above the highway and caused an accident. It was held that the local authority was liable as the local authority had charge of both the highways and the waterworks. In the case of Moore v. Lambeth Waterworks Company the company had not the charge of the highway, and it was the non-repair of the highway that made the top of the company's fire-plug dangerous, and that led to the accident. It was held that the company was not liable. Kent v. Worthing Local Board might, it was said, be upheld, because it was a double authority. In Blackmore v. Vestry of Mile End. Old Town the Vestry was held liable for an injury resulting from the cover of a water'meter having been worn smooth, the Vestry being in charge of both the waterworks and the road. The House of Lords in Cowley v. Newmarket Local Board had brought before it the Privy Council's decision in Borough of Bathurst v. Macpherson, though it is not referred to in the judgment. The facts of the case were that a highway was vested in the local board bv virtue of The Public Health Act of 1875. The Act provides that a local authority shall have and be subject to all the powers, duties and liabilities of surveyors of highways, and shall from time to time level, alter and repair the highways vested in them. An owner of land adjoining the highway making an approach to his land without the sanction or authority of the local board, made a drop in the level of the highway, and left it in a dangerous condition. The appellant walking along the highway fell down the drop and was injured. It was held that the board was not liable. Lord Halsbury held that if there were no defect in the construction the defendant board was not liable for non-feasance. He relied on the passage already quoted from Brooke's Abridgement, citing Russell v. The Men of Devon. He quoted McKinnon v. Penson with approval, and questioned Hartnell v. The Ryde Commissioners. He said that the non-liability of local bodies for non-feasance in managing roads had been maintained for certainly more than a century. Lord Herschell and Lord Hannen agreed that there was no liability. Lord Herschell stated that the purview of the statute must be looked at before the Court could assume that a breach of the statute causing damage to a particular person would give a right of action. This page 11 case did not necessarily conflict with the Borough of Bathurst v. Macpherson. There were two important points of difference—first, that the local body had only the liability of surveyors of highways, and the Courts had decided before The Public Health Act of 1875 was passed that such a liability did not include a liability for non-feasance; and second, the injury done to the highway had been done by a stranger, and the only charge that could therefore be made against the local body was the non-repair of the highway, not a defect in an original work of the local body. In 1893 the question again came before the Privy Council in the Municipality of Picton v. Geldert.

In this case a bridge had been erected over a county road. The approach to the bridge had been allowed to fall into disrepair. The result was that the plaintiff was injured. The question was whether the statute by which the powers and duties of the defendants were regulated imposed upon them a liability to repair and made them liable in damages for mere non-feasance at the suit of a private person. The Common Law of England was in force in Nova Scotia before any statute was passed in reference to roads. The Privy Council said that after Cowley v. The Newmarket Local Board "it must now be taken as settled law that a transfer to a public corporation of the obligation to repair does not of itself render such corporation liable to an action in respect of mere nonfeasance. In order to establish such liability it must be shown that the Legislature has used language indicating an intention that this liability should be imposed. Their Lordships quoted their own decision in the case of The Sanitary Commissioners of Gibraltar v. Orfila (15 App. Cas. 411), where it was said in the case of mere nonfeasance no claim for reparation will lie except at the instance of a person who can show that the statute or ordinance under which they acted imposed on the Commissioners a duty which they neglected or failed to perform. It will be noticed from reading the judgment in this case that the law of Nova Scotia was similar to the law of England. The Act in force, passed in 1761 in Nova Scotia, provided that two surveyors of highways were to be elected for each town in the county, and the duties of the surveyors were to enforce and regulate the labour which the inhabitants were bound to supply for the maintainance and repair of highways and bridges. The Council then considered the Act of 1897, under which the action was brought. It is called "The County Incorporation Act," and their Lordships pointed out that the liability to maintain roads and bridges lay upon the inhabitants, and this liability was preserved by The County Incorporations Act. As to the Bathurst case, their Lordships said that the governing fact in that case is that the conduct complained of was not in the view of page 12 the Committee non-feasance, but mis-feasance, and they put the ground of the decision thus:—" The ground of the decision was that the municipality having under the powers conferred upon them, constructed a drain, which unless kept in proper condition would cause a nuisance to the highway, were bound to keep this artificial work in such a condition that no nuisance would be caused, and that if owing to their failure to do this the highway subsided and the nuisance was created, they were as much liable for mis-feasance as if they had by their direct act made the hole in the road which constituted the nuisance to the highway. "The case, therefore," they continued, "differs from that before their Lordships where the only charge that could be made against the defendants was that they failed to repair the approach to the bridge."

This same question came before the Court of Appeal in England in Thompson v. The Mayor oj Brighton, and Oliver v. The Horsham Local Board ([1894] 1 Q.B. 332). In both these cases the charge was against urban authorities under the Public Health Act. They had placed a man-hole in one of the sewers. The cover of the manhole was in the highway. It had been properly made, and was in good repair, but the road had been allowed to wear away, so that the cover projected over the surface of the road. It was held that the only breach of duty was the omission to repair the highway, and that no action would lie, and Kent v. The Worthington Local Board was overruled. Lord Lindley said: The House of Lords in Cowley v. The Newmarket Local Board affirmed Gibson v. The Mayor of Preston, and declined to apply the principles laid down in Couch v. Steel and acted upon in Hartnell v. The Ryde Commissioners to local authorities governed by The Health Act, 1875. He also said, "The law on this subject is in my opinion very unsatisfactory, but I cannot on that account declare it to be different from what it is." The question was again before the Privy Council in 1895, in The Municipal Council of Sydnnj v. Bourke, on appeal. The allegation was that the municipal council had allowed Kent Street to fall into disrepair, whereby the plaintiff's husband was thrown from a van whilst driving, and died from the injuries received. Their Lordships considered the case first apart from the authority of the Bathurst Case. The Privy Council held that the statute relating to the maintenance of highways was empowering only, and did not create a duty. In this case the highways were vested in the council and that argument as to that liability was met in this way. The judgment said, "It is asserted that because all public ways are vested in the council, it is bound to keep them in good repair, and is liable to anyone injured by their page 13 non-repair. That is said to be established by the case of The Borough of Bathurst v. McPherson. Considered apart from authority it is difficult to see on what this contention rests. Before the '43 Act was passed the existing ways were vested in someone whether it were the owner of the soil over which they had been made or some other body or person. It seems clear that such persons were not merely on that account bound to keep them in repair. How then can the transfer of these ways to the council or the vesting of them in it create such and obligation?"

They dealt with the Borough of Bathurst v. Macpherson, and they said the ratio decidendi was that the defendants had caused a nuisance in the highway. It was entirely open to question whether there was an obligation to keep the highway in repair or whether any person injured by the breach of such a duty could maintain an action. The case was treated as one of mere non-feasance and indeed it was not so. The defendants had created a nuisance, having made a drain, and failed to keep it in such a condition that the road would not fall into it, they were just as much liable as if they made an excavation without constructing the drain, and the road had consequently subsided and become founderous. They also said "that the decision did not in any way depend on the question whether the defendants were liable to an action in respect of non-repair of the highway which is the only question in the present case." They also said, "that there was no doubt that certain dicta to be found in the course of the judgment in the case under discussion were somewhat broader than was necessary for its decision," and referring to the decisions of the series of cases ending with Cowley v. The Newmarket Local Board, in which it has been held that an action would not lie for non-repair of a highway, the judgment proceeded, "the ground upon which it was held that it would not, even where the duty of keeping the roads in repair had been in express terms imposed by statute on a corporate body—was that it had long been settled that though the duty to repair rested on the inhabitants, subjecting them to indictment in case of its breach, they could not be sued, and there was nothing to show that the Legislature in transferring the duty to a corporate body had intended to change the nature or extent of their liability."

The only other case which it is necessary to refer to is the late case of Maguire v. The Corporation of Liverpool ([1905] 1 King's Bench 767). That case, however, is not different from other cases which had been decided prior to Cowley v. The Newmarket Local Board. The defendant corporation were declared to be surveyors of highways for the Borough of Liverpool. The control of the streets was vested in them and they page 14 were empowered to form or pave the streets with such materials as they should think fit. They were also liable to be indicted for want of repair. They allowed one of their streets to fall into disrepair. There was no evidence of mis-feasance and it was held that there was no liabilitv for non-feasance, and if Hartnell v. The Ryde Commissioners decided to the contrary it must be deemed to be over-ruled. The Lord Justices stated that the Court must start in construing the statute with the prima facie presumption that it was not intended to cast on the new body a larger liability than was cast over the inhabitants, and L. J. Vaughan-Williams said, "We have to find in the Act something which shows a distinct intention on the part of the Legislature" to create a larger liability than existed prior to the transferring of the streets to the corporation, and there is nothing showing that in the statute. Considering all the authorities which have been cited, the law in England seems to be plain that local bodies are not liable in an action for non-feasance in the carrying out of their duties, such as looking after streets, etc., vested in them, though they may be liable to indictment. The reason for the law is that at common law the inhabitants were not so liable, as decided in Russell v. The Men of Devon, and laid down in the cases referred to in Brooke's Abridgement. The judgment in Russell v. The Men of Devon decided the matter not merely on the ground of a want of incorporation of the defendants, but also on the general ground laid down in Brooke's Abridgement. There must, therefore, be something in the statute showing that a private person has a remedy for non-feasance before he can succeed in England or in the colonies, where there are similar statutes to those in England, against a local body for injury sustained through the nonrepair of streets or roads.

It appears to me that the Borough of Bathurst v. Macpherson cannot really be differentiated from the other cases. In this case there seems to have been an open drain or stream running through the street, and all the corporation did was to put a bridge of brick across this open drain or stream. This was not creating a nuisance in the highway. It was doing no more than bridging the stream by an ordinary bridge. If instead of putting in a barrel drain of brick they had raised a wooden or stone bridge across the stream the cases show that they would not have been liable. It was a case of approaches to a bridge in the Municipal Council of Picton v. Geldert. It was also a case of a bridge in McKinnon v. Penson. The barrel drain, as it is termed in the Borough of Bathurst case, was not part of a sewerage scheme, it was part of a road formation. To say that that was creating a nuisance in the highway is really a misuse of language, or a misapprehension [unclear: of]

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The New Zealand Courts have followed Cowley v. The Newmarket Local Board. The most important case was Tarry v. The Taranaki County Council (12 N.Z.L.R. 467), and it was held that the county council was not liable for non-feasance, on the ground that the common law of England was in force in New Zealand prior to the passing of the Counties Act, and that the Counties Act did not in express terms give a right of action for neglect to repair roads.

In America the case of Henley v. The Mayor of Lyme Regis is followed, and the principle stated by Mr. Justice Park in delivering the opinion of the Judges is approved of. I notice, however, that Mr. Justice Park is spoken of as Baron Parke in the American report. The most mportant case is Weightman v. The City of Washington (1 Black. U.S. Rep. 4 Miller 349), being a decision of the Supreme Court of the United States, in 1861,

Other cases which have followed it are the cases of Barnes v. The District of Columbia ([1875] 91 U.S. Reports 540; Cleveland v. King ([1889] 132 U.S. Rep. 295); District of Columbia v. Woodbury ([1889] 136 U.S. Rep. 450). The rule laid down by the U.S. Court is first, that a distinction is made between municipal corporations proper, such as cities and incorporated villages, and what are called quasi municipalities, such as counties and townships; second—municipal corporations proper are without any express statutory provision to that effect held liable for all injuries caused by defective highways, on the theory that being invested with the exclusive control over the highways within their limits, and having implied power to-raise money for their construction and repair, it is their duty to keep the highways in a reasonably safe condition, for failure to perform which they are subject to a corresponding liability (see American and English Encyclopædia of Law, 2nd Ed., Vol. 15, p. 420). The Supreme Court of the United States makes no distinction between a municipal corporation and a corporation organised for private gain However, as I have said, it makes a distinction between a corporation proper, and what is termed an involuntary quasi-corporation, such as a county, town, school district, or township. (See Barnes v. District of Columbia, p. 552.) The rule that is thus laid down by the Supreme Court is followed by a large number of States, namely by thirty-one. However, in the New England states proper, and in Arkansas, California, Michigan, New Jersey, South Carolina, and Wisconsin, the contrary is held and the English rule is followed—that is, a corporation is not liable unless the statute expressly recognises such liability. In many of the States there are such statutory liabilities.

It may therefore be said that so far as the rule in England and the page 16 colonies is concerned, the local body is not liable for non-feasance relating to the maintainance of a road, unless there is something express in the statute under which it acts creating the liability. This may well be termed an exception to the rule that the breach of a statutory duty followed by an injury to an individual gives a right of action to the person injured.* How this exception came to be law may easily be gathered from the cases which have been previously referred to. It began, no doubt, because of the difficulty of making the inhabitants liable in a civil action. There were few corporations in the eighteenth century. Local bodies as such did not exist, and when there came to be local control that local control was given to surveyors of highways, agents or employees of the inhabitants. The common law not having recognised the liability of the inhabitants, the Court held that these agents of the inhabitants could not be made liable for damages which were irrecoverable against the inhabitants. The law is now too firmly fixed to be altered, and the inconvenience that might arise from an alteration of the law has been well pointed out in many of the judgments. Lawyers, however, have not so much to consider the question of convenience or inconvenience as what the law is, Whether it would be wise to introduce into the colonies the rule as laid down in America is a question for the consideration of the lawgivers. The law as it now stands is clear and decided, notwithstanding the decision in The Borough of Bathurst v. Macpherson. There is much to be said in favour of a modification of the law. It might be wise to continue the non-liability of local bodies, so far as unformed roads or streets are concerned, but if a local body had formed and made streets or roads, and they allowed them to fall into disrepair, and knowingly allowed them to remain in a dangerous condition, surely they ought to be liable for a neglect of their statutory duty to any one who suffers through that neglect. If this principle of law were laid. down, then the decision of the Privy Council in the Bathurst case would become the rule, and, considering the advance we have made in local government, it would only be in accordance with right and reason that such a liability should be cast on local bodies.

Wellington, N.Z.

Robert Stout.

* There are many cases in which this rule has been laid down. See for example Oliver v. N. E. Railway Company (L.R. 9 Q.B. 409); Hawkins v. The King (25 N.Z.L.R. 287), in addition to the cases already referred to.