Burrum Shire v Richardson [1939] HCA 30

HL ©. oF A. 1939. Ww

BRISBANE,

June 13-15.

SyDney, Aug. 23.

Latham 0.J., Rich, Starke. and MeTiernan IS.

HIGH COURT

(HIGH COURT OF AUSTRALIA.}

SHIRE OF BURRUM. . .. . - . APPELLANT; DEFENDANT, AND RICHARDSON 7 i is bat - Responpent. PLaintiFr, SHIRE OF BURRUM . si 'i i : . APPELLANT; Drrenpant, AND GEHRMANN y E . 5 ; . Responpent. PLAINTIFF,

ON APPEAL FROM THE SUPREME COURT OF QUEENSLAND.

Negligence—Blectrocution in public bathing enclosure on foreshore within area of local authority—Hnelosure constructed by residents of district—Control and management—Duty of local authority to members of public using bathing enclosure —Trap or concealed danger—Invitees or licensees—Local Authorities Act of 1902 (Q.) (2 Edw. VII. No. 19), secs. 62, 69—Harbour Boards Acts 1892 to 1928 (Q.) (56 Vict. No. 26—19 Geo. V. No. 22), secs. 66, 67—Navigation Acts 1876 to 1930 (Q.) (41 Vict. No. 3—21 Geo. V. No. 21), sec. 147—Land Act 1897 (Q.) (61 Vict. No. 25), secs. 19, 190, 191.

Actions were brought in the Supreme Court of Queensland under the Common Law Practice Act of 1867 (Q.) (Lord C:mpbell's Act) by parents against a local authority in respect of the deaths of their sons, who had been electrocuted whilst using a bathing enclosure on the foreshore of a reserve under the control of the loca! authority. In 1922 at the request of the residents of the district the shire clerk asked for and obtained permission from the Harbour Master at Maryborough for the erection of the bathing enclosure. The enclosure was built and maintained entirely by various voluntary associations. 'The council from time to time subscribed small sums of money to assist the voluntary

62 C.L.R.] OF AUSTRALIA.

associations which for the time being had accepted the responsibility of either erecting or maintaining the enclosure. In 1930 electric light was installed by the local electric authority on the application of the voluntary association then maintaining the enclosure. The cost of installation and accounts for current supplied were wholly met by voluntary associations. In 1935 maintenance repairs became necessary, and the council made available relief workers, paid by moneys supplied to the council under the Incoms (Unemployment Relief) Tax Act of 1930. The work was supervised by an officer of the local progress association. The repairs effected by the relief workers brought the diving board closer to the electric wires than formerly, and to a point near the maximum sag of the wires. As a result of the fact that an electric-light wire became energized, a danger existed, which was the cause of the deaths of the two boys. The jury found, inter alia, that the local authority had control of the enclosure, permitted its construction, and ought to have known of the existence of a trap or concealed danger, and failed to take reasonable care to see that the enclosure was safe. On these findings the trial judge entered judgment for the plaintiffs against the local authority. On appeal the Full Court of Queensland affirmed the judgment.