SUPREME COURT

Dominion, Volume 10, Issue 3170, 22 August 1917, Page 9

SUPREME COURT

A QUESTION OF LIABILITY ACTIONS AGAINST PALMERSTON BOROUGH TO BE STAYED The question of whether the Palwerston North Borough Council was liable in law for an accident which resulted in tho death of one William Forbe3, and iu injury to Mary and Catheriuo Sullivan, was recently argued before Their Honours iir. Justice Chapman and Mr. Justice llosMuk. Mr. Justice llosklng yesterday dcliTercd his own judgment and read that of Mr. Justieo Chapman, who was not present. As tho result of what Their Jlonoucs have held, actions for £2000, £300, and £150 damages respectively will be stayed. The statement filed on behalf of the plaintiffs, and assumed for tho purposes of the argument to bo true, was that on the night of November 3, 1916, deceased t and Mary and Catheriuo Sullivan drove in a motor-car .alone Fitzroy Street, whioh leads to tho bank of the Manawatu Elver. The car went over tho bank, whioh thero forms a bluff above tho river, and Forbes was killed and tho two plaintiffs were injured. Many years before, the river had oommeiiced eroding tho bailie, and had so formed the bluft referred to. The Borough Council put a fence across tho street to prevent accident's, and this fenco was moved baok as tho erosion progressed. At the date of tho acoident it stood 90 feet, from the brink of tho precipitous bank. It waß simply a, wiro fenco with three posts on each side of the centro of tho road, la tho centro was an openine by .way of a gate consisting of two hurdles flied to the two inner posts ana closc;! by means of a loop of twisted wire laid upon tho top rail and embracing tho uprights that formed tho Inner side of the double gate. On tho night in Question, ; tho gate was open, and cach panel exI tended towards tho river. No light was then or at any previous timo maintained at tho gate." Neither Forbes nor the bullivaus knew the locality. Cn tho facts as thus set out, -two Questions of law had been stated for the decision of the Court: (1) Was tho defendant, under any duty to fence or protect , the said road at or near the declivity or cliff? (2) If no such duty existed on tho part or the defendant, did tho circmnatanccs alleged in tho statement of olaim connected with tho erection of tho fenco and gate across the said road and its maintenance oreato a liability on tho part of tho defendant for tho injuries sustained by tho plaintiflH in manner alleged iu tlm statement of claim? Mr. Jußtico Chapman hold that upon no reasonable construction of tho statement of claim had either tho fenco or tho gate anything to do .with tho matter, unless it could bo successfully contended .that the defendant was bound both to erect and to maintain tho fenco, and, if it Jolt a gate, to keep that gato loskcd, as plalntuis counsel suggested, lie further held that tho borough was undor no Biioh obligation. Both questions wero completely covered by authorities which were binding upon tho Court. t • .. . .. Mr. Justice Hoskiug agreed that tho plaintiffs failed on both questions. In the courso of his judgment,, ho stated that it was ■ not the borough that was responsible for tho schemes or design by which tlin street terminated at. the edges of tho river. It was originally laid out over private land by tho owners. This circumstance at oneo differentiated tho case from one upon which tho plaintiffs had greatly relied. _ t» t When tho matter wus argued, # Mr. V. »T. O'Kegan appeared for tho plaintiffs and Mr. C. P. Skerrett- and Mr. Cooke for the defendant corporation.