Sermon v Commissioner of Railways [1907] HCA 61

Bf

5 OLR.) OF AUSTRALIA. 239

- (HIGH COURT OF AUSTRALIA. ]}

SERMON . , 2 1 ¥ é f . APPELLANT; PLAINTIFE, AND THE COMMISSIONER OF RAILWAYS —. __ Responvenr. DEFENDANT,

; ON APPEAL FROM THE SUPREME COURT OF z WESTERN AUSTRALIA,

Fire caused by sparks from engine—Statutory authority—« Any kind of fuel"— . ©. of A. Dangerous fuel —Reasonable precautions —Government Railways Act 1904 1907. (W.A.) (8 Hdw. VIT. No. 23), sec. 20—Statutory discretion, how to be exercised. = =

: Pertn, The Government Railways Act 1904 (W.A.) conferred upon railway Cet. 2 5 Bes authorities a discretion to use in their engines 'any kind of fuel." 1; Dee. 2

Held, that an action could not be maintained against them for negligence GrimthC.0., - alleged to consist in the choice of a kind of fuel more likely to cause damage "ton and hy fire than other available kinds of fuel, provided that the best known safety appliances and proper care were employed in its use.

Per Grifith C.J.—In order to determine the meaning of a statutory 2 auth ion giving a discretion to carry out works by certain general means, the circumstances of the country at the time of legislation may be considered.

Decision of the Supreme Court of Western Australia affirmed.

THE facts and the statutory enactments material to the case are stated in the judgments hereunder.

Pilkington K.C. (with him Stawell), for the appellant. Parker _ CJ. erroneously refused to draw the inference that the sparks from the engine started the fire, because he felt suspicious of two

2) eee wee. CUO

H.C. or A. 1907. sy

Sermon v. 'Tne Commis-

SIONER OF

Ramways.

HIGH COURT [1907,

men who were on the spot when the fire started, and thought, without any evidence, that it might possibly have been caused by them. In this His Honor was properly overruled by the Full Court. The engine was burning a dangerous class of coal when there were other safe classes of coal ayailable. The Commissioner is admittedly empowered by sec. 20 of the Government Railways Act 1904 to use any kind of fuel; but that does not exempt him from liability for the negligent exercise of that authority.