Continuing my series of posts based on page 50 of each volume of my newly acquired Commonwealth Law Reports.

How soon will I tire of this?

Application of my criteria to volume 3 yields two cases, as one case ends and another starts on page 50.

They are:

Dettman v Williams [1905] HCA 67; (1905) 3 CLR 43


Miller v McKeon [1905] HCA 33; (1905) 3 CLR 50.

Dettman v Williams concerned the entitlement of a NSW public servant to a gratuity on the basis that his services had been dispensed with. The relevant legislation empowered the Public Service Commissioners to reduce the salary of an officer and, if it did so by more than one-fourth, the officer had the option to resign and receive certain entitlements. This is what happened to Dettman. You might say he had been constructively dismissed. Subsequently, in 1899, additional entitlements to superannuation were introduced for public servants “whose services were dispensed with…for a cause other than an offence.” The High Court held that his services had not been dispensed with, because he had elected to retire. As Toby “Tosspot” Barton observed:

“It may be that there is a hardship on the appellant, but if there is a hardship it is one created by the law.”

Dettman’s appeal from the NSW Supreme Court was unanimously dismissed with costs.

The case has not been cited, at least on any case in Austlii, since.

Miller v McKeon has had a longer after-life, because it touches on the longstanding issues of when negligence or nuisance will be found in relation to the construction or maintenance of roads.

Mr McKeon was travelling at night on a road between Gunnedah and Manila in a buggy driven by a friend. The buggy had no lights. Originally the road had turned to the left to approach the river gradually but about 25 years earlier a cutting had been made and a new road had been fenced off through crown land which crossed the river directly. The driver wondered if they had somehow missed the cutting. McKeon got out at his friend’s request to look. It turned out that they were within the fence which ran at the side of the road as now constructed but at the top of the cutting and on the side of the road. McKeon fell down a steep bank (I take it, to the road as it descended through the cutting to the river) and was injured.

McKeon said that the road was dangerous and it was the fault (in negligence or nuisance – that is half the point of the confusion in this area) of those who built it and did not fence it off or cause some warning light to be displayed. At trial in Tamworth, the judge refused to leave the case to the jury. On appeal, the full court of the NSW Supreme Court said that it was a jury question and should have been left to them. The High Court held, on the one hand, that English cases which said that the public must take a road as it is given to them did not apply, but on the other that there was no evidence in this case that those who built the cutting (in a remote place, some 25 years ago) had done so negligently.

Counsel for McKeon was Albert Piddington. I always think of him when I cross Phillip Street at Martin Place because it was near here (though obviously not at Martin Place itself which was then still a street) that Piddington was knocked over when crossing Phillip Street in 1938 at the age of 75. That case too went to the High Court.

It seems to have been assumed by all that the plaintiff needed to sheet such negligence home to those who constructed the road. This suggests that some version of the misfeasance/non-feasance rule was accepted by all. This is the sort of thing which is difficult to grab hold of when reading historical cases.

Much was made of the road’s remoteness, and that the driver had been negligent in not staying on the road or using lights. These were not matters which the government ought reasonably to have anticipated and protected against. Apparently he should also have made inquiries of the locals about the road. That seems a bit steep.

I can’t say that I have been able to get particularly excited about either of these cases.

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