Benning v Wong [1969] HCA 58

High Court of Australia Barwick C.J. McTiernan, Menzies, Windeyer and Owen JJ. Benning v Wong [1969] HCA 58

ORDER Appeal allowed with costs. Order of the Supreme Court set aside and in lieu thereof order that the demurrer be allowed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 3 Barwick C.J.

This is a demurrer by a defendant to a count of a plaintiff's declaration in a common law action in the Supreme Court of New South Wales. The Supreme Court, Court of Appeal Division, disallowed the demurrer [9] . The defendant now appeals to this Court submitting that the count to which it demurred disclosed no cause of action. I shall return at a later stage to the detail of the pleadings after I have expressed my opinion as to the substantial question of law involved in the matter.

1. (1968) 70 S.R. (N.S.W.) 290; 88 W.N. (Pt 2) 88.

The plaintiff sues the defendant to recover damages for personal injuries sustained by her from gas whilst on land which at relevant times she occupied and which bounded on a public street. According to the plaintiff gas escaped on to the land so occupied by her from pipes laid by the Australian Gas Light Co. in the public street under statutory powers in that behalf and used by it for the conveyance of gas for domestic and industrial use. Benning is the nominal defendant in the action. But that company is the real defendant and I shall refer to it as the defendant.

The defendant claims that because a statute authorized it to lay and to use the gas pipes in a public street the rule that those who bring on to land dangerous things or substances likely to do harm if they escape from that land are bound to keep such things or substances on the land and are liable if the thing or substance escapes to other land and there does damage does not apply to it in relation to the escape of gas of which the plaintiff complains. The defendant says that the only relevant cause of action available to the plaintiff in the circumstances is for breach of a duty of care which would involve the plaintiff in affirmative proof on a balance of probabilities that the escape of gas of which the plaintiff complains was due to a want of care on the part of the defendant in or about the laying of the pipes or in their maintenance or otherwise in its operations as a supplier of gas by means of such pipes.