Repair maintenance of the surface of Quorrobolong Road, Cessnock
209 According to the plaintiff, the second defendant acted without grappling with or remedying the essential problem as to the cause of the broken edges and potholing and failed to carry out proper patching repair and proper drainage. According to the plaintiff this constitutes misfeasance. In relation to negligent repairs and maintenance, the thrust of the plaintiff's case is that the defect in the relevant section of the road gave rise to pavement and/or sub-grade failure. Potholes and edge breaks were caused by inadequate drainage. The plaintiff submitted that any intervention made by the council in the nature of maintenance or repair which omitted to rectify the cause of the defect in the road surface amounted to actionable negligence. The plaintiff also submitted that the second defendant is liable for misfeasance on each occasion when it carried out repair work by means of temporary patching instead of permanent patching without grading and clearing the shoulders of the road so as to prevent the pooling of water on the shoulder areas next to the repairs. By not fixing the root of the problem the Council allegedly caused the ongoing damage to the road to be accelerated.
210 The second defendant submitted that by carrying out temporary patching ie., superficial repairs rather than a more radical repair of attending to the drainage problems, it did not attract liability. Alternatively, the second defendant submitted that the patches and filled potholes that brought the plaintiff to grief were not the product of negligent repair but rather were from normal wear and tear to the road or from properly executed repairs. Further the second defendant submitted that there was no evidence that the repairs created or added to the danger or rendered an untrafficable road trafficable or created a hidden trap - the repairs and rough edges were always visible.
211 The parties referred to a number of authorities on the vexed question of nonfeasance/misfeasance . They are Buckle at pp 281-2, 283, 284-5; Gorringe v The Transport Commission (TAS) (1950) 80 CLR 357; Florence; Hughes v Hunters Hill Municipal Council (1992) 29 NSWLR 232 at 236 per Mahoney AP; UTA v Purcell (1994) 82 LGRA 284 at 288; Campbelltown City Council v Crain (NSWCA, 9 October 1998, unreported); Bottomley [1999] NSWCA 28; Lake Macquarie City Council v Day [1999] NSWCA 26; Threadgate v Tamworth City Council (NSWCA, 24 February 1999, unreported); Hill v Commissioner for Main Roads 68 LGRA 173; Marr v Holroyd Municipal Council (1986) Aust.Tort.Rep 80-031 at 67,787; Attorney General v Borough of North Sydney (1893) 9 WN 177; Singleton SC v Brodie [1999] NSWCA 37; Barbieri v Fairfield City Council [1999] NSWCA 405; Ghantous v Hawkesbury CC [1999] NSWCA 51; Gosford City Council v Timbs [2000] NSWCA 31; and Gloucester Shire Council v McLenaghan & Anor [2000] NSWCA 208. On 1 September 2000 the High Court in Ghantous and Brodie (s 69/1999), reserved its judgment in the application for leave to appeal.
212 The starting point on the nonfeasance/misfeasance issues is Buckle where Dixon J, (as he then was) said:
"It is well settled that no civil liability is incurred by a road authority by reason of any neglect on its part to construct, repair or maintain a road or other highway. Such a liability may, of course, be imposed by statute. But to do so a legislative intention must appear to impose an absolute, as distinct from a discretionary, duty of repair and to confer a correlative private right (cf City of Vancouver v McPhalen (1911) 45 SCR (Can) 194).
…
The purpose of giving the road authority property in and control over the road is to enable it to execute its powers in relation to the highway, not to impose upon it new duties analogous to those of an occupier of property. The body remains a public authority charged with an administrative responsibility. It must decide upon what roadway it will expend the funds available for the purpose, what are the needs of the various streets and how it will meet them. A failure to act, to whatever it may be ascribed, cannot give a cause of action. No civil liability arises from an omission on its part to construct a road, to maintain a road which it has constructed, to repair a road which it has allowed to fall into disrepair, or to exercise an other power belonging to it as a highway authority."
213 In relation to drainage, Dixon J in Buckle at 291-292 stated:
"It is a mistake to suppose that simply because a thing as a covered drain or gutter is of such a nature that it will, when it falls into disrepair or dilapidation, cause a dangerous condition of the highway, it is incumbent on the road authority which put it there to take active measures to prevent or remove that condition. If the drain or gutter forms part of the road construction and is put there to serve a purpose arising out of its character as a highway, as for example to carry off the surface water, or to drain off seepage and protect the road base, the road authority incurs no civil responsibility by allowing it to fall into a condition of danger, unless in the first instance it acted improperly in placing it there. If the road authority showed a want of care or skill or took an unreasonable course in the adoption of such an expedient or in the design or execution of the work, neither lapse of time nor the use in the interval of some additional precaution which while it was practised had prevented any ill consequences ensuing would relieve the road authority of civil responsibility for damage ultimately caused by the work But, given due care and skill and proper regard for the public safety in the first instance, the road authority does not lose its immunity from liability for damage arising from its failure to uphold, maintain and repair because the work that it has done for highway purposes may, or even probably will, under the influence of wear and tear and the stresses of use, give rise to a defective or dangerous condition."
214 Gorringe was concerned with a large hole on a highway caused by the collapse of a culvert through which ran a natural water course. Latham CJ stated:
"... the plaintiff contended that in the present case there was misfeasance because the Commission did not simply leave the road alone; it did repair the surface of the road, and it is contended that there was negligence in the repairs so effected. In East Suffolk Rivers Catchment Board v Kent ([1941] AC 74, 102) Lord Romer stated the law in the following manner: 'Where a statutory authority is entrusted with a mere power it cannot be made liable for any damage sustained by a member of the public by reason of a failure to exercise that power. If in the exercise of their discretion they embark upon an execution of the power, the only duty they owe to any member of the public is not thereby to add to the damages that he would have suffered had they done nothing.' Thus the Commission was not bound to repair the road, but if it did repair the road it was under a duty to repair it without negligence. If the Commission repaired the road negligently in such a way as to create a danger or to add to danger and damage was thereby caused to persons lawfully using the highway the Commission became liable for that damage."
215 and at 371:
"To fill in the depression with earth or gravel did not mean that traffic could pass over the culvert while without the filling it could not. With or without it the road was passable. It meant only a more level surface. I do not say that the result would have been different had it been otherwise. But it cannot be said that the commission's employees did anything that would amount to throwing an unsafe road open to traffic afresh or providing a place for traffic not otherwise available that was unsafe."
216 The plaintiff referred to Hill. The facts in Hill are that prior to a motor cycle accident a corrugation caused by a shoving effect in the bitumen surface of a roadway was found to be caused by inadequate drainage. Prior to the accident the council carried out patching to restore a reasonable surface but did nothing about the drainage.
217 In Hill the Court of Appeal per Samuels JA (with whom Kirby P and Priestley JA agreed) stated the respondent knew during 1980 that, in consequence of inadequate drainage, the condition of shoving would recur and that the patching which was performed was merely a superficial expedient which was neither designed nor apt to cure the basic cause of the condition. Hence, it was submitted, to patch the road without attacking the drainage was negligent and, if it was, it was an act of misfeasance and was causally connected with the damage.
218 In both Hill and Gorringe, the highway authority did not grapple with the root cause of the problem. In Hill, Samuels JA pointed out the material difference between Hill and Gorringe is that in Gorringe the work done was designed merely to improve the surface of the road and not render passable a trafficway which was otherwise impossible to transverse, and that the depression did not represent a danger. The depression could be negotiated without risk and did not render the road inherently unsafe. However, in Hill, the sequence of events recurred consistently. The defective drainage (my emphasis added) caused the shoving to reappear and this shoving was a danger to the public ( p 52). The deformation would occur and become dangerous soon after the patching had taken place, and then further patching would take place. This consequence was entirely predictable and foreseeable. The patching was held to be negligent because it failed to remedy a foreseeable risk that the Commissioner of Main Roads knew was certain to reappear some time in the future with predictable and hazardous consequences to users of the highway. The patching did no more than throw open an unsafe road to the traffic afresh.
219 Samuels JA stated:
"It seems to me that this amounts to a misfeasance. The essence of the active intervention, negligent in character, was the conversion of an unsafe carriageway into an apparently safe carriageway - one which would remain safely negotiable for a period but which would inevitably deteriorate into danger."
220 In Threadgate, Powell JA (at para 21) expressed the above principle in this way. A highway authority may be rendered liable to those who are injured when using the highway if the authority was an active agent in creating an unnecessary danger in the highway.
221 In Marr, a motorcyclist struck a pothole and suffered injuries. In Marr, an argument, similar to the one the second defendant has submitted in this case was raised, namely the plaintiff cannot identify the specific pothole so his case should fail. Clarke JA was not troubled by this submission. Clarke JA found that from the peculiar shape of the pothole, there was reasonable explanation was that there was a failure to achieve a proper mix of materials used in the efforts to repair the original pothole. It was the defective nature of the repair that caused the reappearance of the pothole at a much earlier time than had the pothole been properly filled (pp 240/241). This meant that it was not a "wear and tear" case and the highway authority was not immune from liability. The plaintiff had made good his case in misfeasance.
222 Buckle concerns a hole in a broken drain; Bottomley, an irregular and sharply sloping portion on the roadway; Threadgate and Timbs the plaintiff fell on a nature strip on a council footpath; Barbieri, a stormwater cover and Brodie, the facts are that a bridge collapsed beneath a truck being driven on it due to defective decking planks. In Hughes, the plaintiff tripped and fell while waiting for a bus. Tree roots had cracked the asphalt and the roots of the trees were exposed. In Purcell, the plaintiff, an elderly man, tripped and fell over a jagged stump of a metal bus zone pole on the footpath. McLenaghan concerned an apportionment of liability in relation to a motor vehicle accident.
223 If the Council, did not carry out any maintenance to the drainage system on the western side of the road but intervened to carry out temporary pothole and patching repairs does it have immunity under the nonfeasance principle? Was the Council under an obligation if it carried out road repairs, to clear the shoulders of trees and unblock the drainage systems on each side of the road and thus grapple with the root of the cause of the problem? Did the Council by carrying out temporary patching without rectifying the drainage problems add to the danger, or add to the danger and damage? Once the Council repaired the road, did it repair it negligently?