Charles Manning Evenden

Published in "The Sydney Morning Herald" of Friday 16 August 1929:

"LAW REPORT. FULL COURT. (Before the Acting-Chief Justice (Mr. Justice Ferguson), Mr. Justice James and Mr. Justice Halse Rogers.) AN APPEAL RE-ARGUED.

EVENDEN V MANNING SHIRE COUNCIL.

This appeal, which is by way of demurrer to certain pleadings, was argued before the Full Court last term, when Mr. Justice Camp- bell was a member of the Bench. Judgment was reserved, and as no judgment was pre- pared the Court directed that the matter be re-argued. Ada Amelia Evenden, widow of Charles Manning Evenden, schoolmaster, sued the Shire of Manning to recover £ 2500 under the Compensation to Relatives Act, 1897-1928, claiming on behalf of herself and two daugh- ters. Plaintiff alleged that Mr. Evenden's deaih was due to the negligence oí the council in not supplying adequate life-saving appliances on the river punt from which the de- ceased jumped, to save a twelve-year-old girl, who had fallen overboard. The facts alleged in the declaration were that in November last year the schoolmaster and his pupil were returning from school, and were passengers on a punt controlled by the Manning Shire Council, crossing the river near Taree. When the ferry was in deep water the child at- tempted to wash her hands from the tail platform of the boat, which was open. She fell into the water, and as she was in danger of drowning the schoolmaster went into the water to her assistance. He reached the child and supported her, and it was alleged that, because of the absence of a rescue boat and lifebelts, assistance was so long delayed that the rescuer was overcome and drowned.

The first count of the declaration alleged that it was the duty of the controlling authority to have equipped the punt with apparatus to afford assistance in emergencies of the kind, and that in failing to do so the coun- cil was guilty of actionable negligence. A further charge of negligence was preferred by reason of the neglect of the punt-hands to close the gates fore and aft of the vessel. The second plea set out that the deceased, by reason of his position and responsibility towards his pupil, necessarily acted as he did.

The defendant council, while denying the plaintiff's allegations, and pleading not guilty of the negligence alleged, demurred to both counts, which they contended were bad in law and disclosed no cause of action or right to damages as against the Defendant. The facts set out in the declaration, said the council, showed that the deceased voluntarily risked his own his life in an endeavour to save the child. The alleged breach of statutory duty to supply lifebelts and a boat did not in the circumstances give a cause of action to the Plaintiff, and the facts of the case were consistent with the view that the death of the deceased took place from causes not attributable to any wrongful act, neglect, or default on the part of the council.

Mr. Mitchell, who again appeared as lead- ing counsel in support of the demurrers, indicated arguments on new lines which he proposed to place before the Court. One im-portant contention, which was not put before the Court on the last occasion, was that the omission to provide life-jackets or lifeboat on steamers of the kind was a mere non feasance of a statutory duty, and could not be treated as a mis-feasance such as failure to provide guards on a dangerous machine.

Mr. Moffitt (instructed by Messrs. Rose and Dawes, Sydney agents for Mr. John Hooke, of Taree) appeared for the plaintiff in support of the declaration, and Mr. E. M. Mitchell, K.C., and Mr. H. G. Edwards (instructed by Messrs. L. O. Martin and Lamport, Sydney agents for Messrs. L. O, Martin and Son, of Taree) for the defendant council, in support of the demurrers.

The matter is part heard."

Continued in "The Sydney Morning Herald" of Saturday 21 September 1929:

"LAW REPORT. FULL COURT. (Before the Acting Chief Justice (Mr. Justice Ferguson), Mr. Justice James, and Mr. Justice Halse Rogers.)

A SCHOOLMASTER'S SACRIFICE. Evenden v Manning Shire Council.

Reserved Judgment was delivered in the case of Evenden v the Manning Shire Council, after the appeal had been, for certain reasons, argued a second time. Ada Amelia Evenden, widow of Charles Man- ning Evenden, schoolmaster, sued the Shire of Manning to recover £2500 under the Compensation to Relatives Act, 1897-1928, claiming on behalf of herself and two daughters. Plaintiff alleged that her husband's death was due to the negligence of the council in not supplying adequate life-saving appliances on the river punt from which the deceased jumped, to save a 12-year-old girl pupil who had fallen overboard.

The facts alleged in the declaration were that when in November last year the schoolmaster and his pupil were returning from school on a punt controlled by the Manning Shire Council, near Taree, the child attempted to wash her hands from the tail platform of the boat, which was open. She fell into the water, and as she was in danger of drowning the schoolmaster went to her assistance. He reached the child and supported her, and it was alleged that, because of the absence of a rescue boat and lifebelts, assistance was so long delayed that the rescuer was overcome and drowned.

The defendant council pleaded that the deceased voluntarily risked his life in an en- deavour to save the child. The alleged breach of statutory duty to supply lifebelts and a boat did not in the circumstances give a cause of action to the plaintiff'.

The judgment of the Court was delivered by Mr. Justice Halse Rogers, the Acting Chief Justice and Mr. Justice James concurring. His Honor said that examination of the Local Government Act did not, in his opinion, furnish any indication that the Legislature intended to confer a right of action in such a case as this. In his opinion, the proper view to take of the statutory provision in question was that it was made for the benefit of the public generally, and not of any limited class, that in imposing a penalty for non-performance the Legislature created a general remedy-and the only remedy-and that consequently no individual had a right to maintain an action for damages in respect of a breach. Referring to the argument that the deceased "of necessity " plunged into deep water and was drowned in endeavouring to save a child imperilled by the defendant's negligence, his Honor remarked that the words "of necessity" were used to show that the chain of causation from negligence to damage was unbroken. The question was, were they justified, or must they be rejected as surplusage? In his opinion, they must be rejected. The pleader had, in his view, confounded a moral with a legal obligation, and by inserting the words "of necessity" he really begged the whole question which had to be determined. From a legal point of view no damage had resulted to the deceased from the negligence of the defendant. His Honor was of opinion that both counts of the declaration were bad in substance, and that judgment must be for the defendant on demurrer.

Mr. Moffitt (instructed by Messrs. Rose and Dawes, Svdney agents for Mr. John Hooke, of Taree) appeared for the plaintiff in support of the declaration; and Mr. E. M. Mitchell, K.C., and Mr. H. G. Edwards (instructed by Messrs. L. O. Martin and Lamport, Sydney agents for Messrs. L. O. Martin and Son, of Taree) for the defendant council, in support of the demurrers."