At the place where the accident occurred the trolly wire of the electric tram, the property of the Railway Commissioners of New South Wales, crosses under the overhead telephone wires of the Department of the Postmaster-General. On 9 August 1901, one of the telephone wires broke and fell on the trolly wire, and the claimant's horse, coming into contact with the broken telephone wire was so seriously injured by the current transmitted from the trolly wire that it had to be destroyed. The question is whether the Post and Telegraph Department is liable.

In the absence of Federal legislation conferring rights to proceed against the Commonwealth it is clear that the Commonwealth is under no legal liability for the wrongful acts of its servants; though any officer of the Commonwealth would of course be liable for damage caused by his own negligence. For the purposes of this opinion, however, it may be assumed that an action for the torts of its servants might be brought against the Commonwealth.

There could clearly be no liability on the part of the Commonwealth unless there was negligence or wrongful act of some kind on the part of its servants. It appears from the evidence that the telephone wires were of sufficient strength and had been recently tested; that all proper precautions had been taken against the breaking of a wire; that both the Department and the Railway Commissioners were aware that such breakages may sometimes happen, and of the danger which would then result; and that neither did anything to prevent a telephone wire, in case of breakage, coming into contact with the trolly wire. The Department have repeatedly requested the Commissioners to place guard wires to protect the trolly wire. The Commissioners say that the guard wires themselves would be as great a source of danger as the telephone wires, and that the Department ought to replace the telephone wires by stouter ones. The Department replies that this would not only be unreasonably expensive, but would not be effective as even a stouter wire might break.

The question of the efficacy of different modes of preventing the accident is one of fact, to be decided upon expert evidence; and on this I can only say that the facts as stated in the papers seem to support the view of the Department.

But apart from this, I am of opinion that the duty of providing against the accident lay rather with the Commissioners than with the Department. It appears that the telephone wires were erected before the trolly wire, and were not in themselves, apart from the trolly wire, a source of danger.

The dangerous element was the electric current of the Commissioners, who were bound to take reasonable precautions against its escape. The correspondence between the Commissioners and the Department shows that the breaking of a telephone wire was a contingency which was foreseen to be possible, and even probable; and unless the Commissioners can show that it was not reasonably possible for them to protect their wire in such an event, I am of opinion that the duty lay upon them to do so. In view of the fact stated that guard wires are generally used in other countries for this purpose, I am of opinion that the negligence, if any, was on the part of the Commissioners; and that, unless the breaking of the wire can be proved to be due to some fault of the Department, it is not responsible for the accident.

This is not a case of'injurious affection' of the wires of the Postmaster-General, within the meaning of the Post and Telegraph Bill⁽¹⁾, and there is nothing in that Bill which will enable the Postmaster-General to compel the Commissioners to adopt the precautions suggested.

Nor has the Federal Parliament any power to control the action of the State authorities with respect to the safety of the public generally; though it has full power to protect its own lines and services from injury.

[Vol. 1, p. 99]

(1) Enacted as the Post and Telegraph A ctl 901.