THREADGATE v TAMWORTH CITY COUNCIL

COUNSEL : J D Hislop QC/T F McKenzie (Appellant) S J Harben (Respondent) SOLICITORS : W J Enright & Son, Maitland (Appellant) Phillips Fox (Respondent) CATCHWORDS : NEGLIGENCE - misfeasance/nonfeasance - whether the nonfeasance rule applies to footpaths and nature strips DECISION : Appeal dismissed with costs

NEGLIGENCE - misfeasance/nonfeasance - whether the nonfeasance rule applies to footpaths and nature strips The appellant fell in a hole on a nature strip on a Council footpath. She sued the Council and failed at the trial because of the nonfeasance rule. She appealed. HELD, dismissing the appeal: (1) The appellant's claim that the nonfeasance rule only applied to that part of the highway which was trafficable by vehicles failed. It applies to all areas where there is a public right of passage. Buckle v Bayswater Road Board (1936) 57 CLR 259 applied. (2) The appellant's claim that the Council had withdrawn the nature strip from public use by planting occasional trees on it also failed. (3) The Council's failure to erect a warning sign was not a failure in some other capacity and the nonfeasance rule applied. Turner v Ku-ring-gai Muncipal Council (1990) 12 MVR 321 distinguished. ORDERS Appeal dismissed with costs.

1 HANDLEY JA: Mrs Threadgate was in Tamworth in January 1996 for the country and western music festival. She and a friend had crossed Belmore Street Tamworth and had stepped over a brick retaining wall on the far side and proceeded to cross an unsurfaced nature strip between a concrete path and the brick retaining wall. In this unsurfaced grassed area, there was a substantial hole into which she stepped causing her to fall and suffer a significant injury. 2 Belmore Street was vested in the Tamworth Council. The plaintiff's action against the Council in the District Court was heard by Nader DCJ in February last year and the Judge found the facts relating to the accident in her favour but entered a verdict for the Council holding that the area in question was part of a public highway and there was no evidence that the Council had created or contributed to the danger by any act of misfeasance. Mrs Threadgate's action therefore failed because of what is commonly described as the nonfeasance rule under which highway authorities are not liable to members of the public who are injured in the course of lawful movement on a highway as a result of mere failure on the part of the highway authority to inspect the highway and carry out necessary repairs or warn the public of the danger. 3 His Honour however assessed damages which have been the subject of a cross-appeal. Mr Hislop QC, who did not appear for the plaintiff at the trial, has appeared in this Court and has taken a number of grounds in support of the appeal in an endeavour to displace the operation of the nonfeasance rule. 4 His first submission was that the nonfeasance rule only applied to that part of the highway which was trafficable by vehicles. In support of that proposition he referred to a dictum of this Court in Grafton City Council v Riley Dodds Australia Limited 56 SR (NSW) 53 at 62 where the Full Court in its joint judgment said: "As the principle of mere nonfeasance applies only to the highway, i.e. the roadway proper it is difficult to see why a failure to take reasonable care of an artificial structure which might prove a source of danger is not actionable against a local authority just as it would be in the case of a private owner of land". 5 That case involved an injury sustained on the roadway proper as a result of the council's removal of all but one of a row of trees which had stood some twelve feet from the kerb in what was otherwise part of the carriageway. The Court was not concerned with any question relating to footpaths and as Mr Hislop very properly drew to our attention on p 57 the Court, in applying the judgment of Sir Owen Dixon in Buckle v Bayswater Road Board (1936) 57 CLR 259 at 281-2, referred to the fact that the nonfeasance principle applies to footpaths and the like and indeed to all areas over which there is a public right of passage. 6 Mr Hislop also drew attention to a dictum of Mahoney J in Hughes v Hunters Hill Municipal Council (1992) 29 NSWLR 232 at 236 where his Honour left for future decision the question of the application of the nonfeasance rule to footpaths in a public road. 7 In my judgment the question for this Court is concluded by the judgment of Sir Owen Dixon in Buckle v Bayswater Road Board, where his Honour refers to the nonfeasance rule in its application to footpaths and other areas over which there is a public right of passage at pp 281, 282, 285, 286. I would therefore reject the first of Mr Hislop's submissions. 8 His second submission was that the nonfeasance rule only applied in relation to footpaths in respect of any artificial surface created by the Council for the purpose of being used by the public in the exercise of their right of passage and in this regard he relied upon the Grafton case at p 57 in the passage to which I have already referred. In my judgment no distinction is to be drawn between situations where the highway or other area over which the public have a right of passage consists of a natural surface and those cases where the right of passage is exercisable over an artificial surface. The rule depends not on the nature of the surface but on the existence of a public right of passage. 9 The next submission of Mr Hislop was that the area in question where the plaintiff fell, that is the nature strip between the paved footpath and the paved carriageway, was not part of the highway because, as a matter of fact, the Council held this area by virtue of some other title. At least, he submitted, it was not established that the Council held this area as part of a public road. Mr Hislop relied on para 3 of the plaintiff's statement of claim and its admission in the statement of defence. 10 The trial Judge found: "that that unsealed part of the footpath was part of the footpath part of the highway". 11 The trial was conducted on that basis as is apparent from the way plaintiff's counsel opened to the trial Judge and there is no evidence on which this Court could act which would enable it to displace the Judge's finding of fact that I have referred to. 12 The next point made by Mr Hislop is that the Council, by planting trees in the nature strip between the footpath and the paved carriageway at substantial intervals as shown in the photographs in evidence, had withdrawn the whole of the unsurfaced area of the footpath from use as a footpath by the public so that it was no longer for relevant purposes part of the highway. He relied upon the decision of the Full Court in Donaldson v Municipal Council of Sydney 24 SR (NSW) 408. That case concerned an injury sustained by a pedestrian in Crown Street when she fell in a depression in the footpath in an area of soil left around a tree. The Court held that the tree was an artificial structure introduced by the council onto the footpath and that the council had been negligent in failing to maintain the soil around the tree as part of this artificial structure. The verdict for the plaintiff was therefore sustained. 13 The case depended upon the fact that the tree was an artificial structure in the highway introduced by the council which created a positive duty on the council to prevent danger to the public. Mr Hislop particularly relied upon the statement by Ferguson J at 412: "I think that the position is exactly the same as if the council had withdrawn a certain part of the highway and turned it into a garden plot. If that plot were allowed by neglect to get into such a condition as to be a source of danger to people using the highway it could not be said that the neglect was mere nonfeasance in the repair of the highway. The case is covered by the decision of the Privy Council in the case of Borough of Bathurst v McPherson that where an artificial structure is made on the highway then that structure must be kept in such a condition as not to become a source of danger". 14 Mr Hislop submitted, as I have said, that the Council by planting trees at intervals in this unsurfaced area had withdrawn the whole of it from use by the public as a highway. In my judgment this submission fails on the facts. There is no doubt that the Council withdrew from use by the public as part of the highway so much of the nature strip as was effectively occupied by the trees but the balance of the nature strip was left open for use by the public. Indeed that is exactly what the plaintiff was doing when she sustained her injuries. The photographs also lead to an inference that the public used the area of the nature strip not occupied by trees to pass and repass in exercise of their public rights of passage. I would therefore reject this submission also. 15 The next submission of Mr Hislop was that the Council was negligent in failing to erect some warning sign to alert members of the public to the existence of this hole, that this failure was a failure by the Council in a capacity other than that of a highway authority, and that the nonfeasance rule therefore did not apply. 16 Mr Hislop relied upon the decision of this Court in Turner v Ku-ring-gai Municipal Council (1990) 12 MVR 321 where a motor cyclist who had come to grief on Pentecost Highway sued the council for misfeasance. The Court held that a possible head of negligence in the case related to the council's failure to erect an advisory traffic sign warning of the safe speed at which the road could be travelled. It was held that any negligence in this regard was in its capacity as a traffic authority not a highway authority. 17 The case in my judgment does not assist the plaintiff here. The Court in its joint judgment particularly at pp 328 and 329 makes it clear that the camber on the particular section of the road was arguably dangerous because of the way in which it had been initially constructed or last reconstructed before the accident. The danger could have been dealt with either by doing further work on the road surface, or by erecting an advisory speed sign, or perhaps by some combination of the two. In other words the need to erect the sign was arguably enlivened by the dangerous situation created by the council when it reconstructed the road surface. 18 In the present case the Council had no relevant capacity in relation to the area other than as a highway authority. It had not created a source of danger, and had not introduced an artificial structure into the nature strip at the relevant place. This also serves to distinguish the decision in Fisher v Rouislip Northwood Urban District Council [1945] KB 584 where council had erected an air raid shelter in the road which became dangerous during blackouts and placed upon the council an obligation to warn persons using the highway of the existence of the artificial structure in the middle of the road. 19 The remaining submission of Mr Hislop was a formal submission that this Court should depart from the established nonfeasance rule in relation to highway authorities. In my judgment the existing decisions of the High Court in Buckle v Bayswater Road Board and Gorringe v The Transport Commission (1950) 80 CLR 357 preclude this Court from taking that course. 20 In my opinion therefore all grounds taken in support of the appeal fail and the appeal should be dismissed with costs. 21 POWELL JA: I agree, but I would add only one brief comment. It seems to me that too much is sought to be read into the decision of this Court in Turner v Ku-ring-gai Municipal Council which is, in my respectful view, merely an example of the fact that 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. The point is, I think, dealt with compendiously in the judgment of Sir Owen Dixon in Buckle v Bayswater Road Board (1936) CLR 259 at p 284 where his Honour said: "The improper nature of the original act with the road authority must always be the foundation of the complaint against it. Cases in which but for continual subsequent safeguards the work actively done by the road authority would make the highway dangerous must be distinguished from a very different class of case in which the operations of the road authority put the highway in a condition perfectly proper and safe but liable in the course of time through wear and tear and deterioration to become unsafe". 22 As I say I agree with the orders proposed by Handley JA. 23 GILES JA: I also agree with both the reasons of Handley JA and the added observations of Powell JA. 24 HANDLEY JA: That will be the order of the Court, appeal dismissed with costs.

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