Woollahra Municipal Council v Moody [1913] HCA 21

16 C.L.R.] OF AUSTRALIA.

(HIGH COURT OF AUSTRALIA.]

_THE COUNCIL OF THE MUNICIPALITY i iaag OF WOOLLAHRA .°. . Biro s Drrenpants, : AND "MOODY "pisses tne aes) «ite cng fn). RESPONDENT. PLAINTIFF,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

* Local government—Negligence—Muintenance of road—Negligent construction—Mis- feasance or non-feasance—Liability of municipal authority.

"Where a municipal authority, on a road of which they have the care and

management, construct works in such a mannér that the natural and prob-

~ able consequence is that the part of the road immediately adjacent, which

they leave untouched, will become dangerous, negligence in respect of such

: ~ construction may be imputed to the authority for which they will be liable

= in the event of damage being occasioned by reason of the untouched part of the road having so become dangerous,

'The leaving untouched that part of the road which becomes dangerous is not, under such circumstances, a mere non-feasance,

Decision of the Supreme Court of New South Wales : Moody v. Municipality of Woollahra, 12 8.B, (N.S.W.), 597, affirmed.

AppEAL from the Supreme Court of New South Wales.

Rawson Frederick Thomas Moody brought an action in the Supreme Court against the Council of the Municipality of Wool- Jahra, alleging by the first count of the declaration that the defen-

dants "so wrongfully, negligently and improperly made and VoL. XVI. 23

"353

H.C. or A. 1913. —

SYDNEY, April 1, 2.

Barton A.0.J., Isaacs and Gavan Dufly JJ.

H.C. or A. 1913.

~

Wootranra Councin v Moopy.

HIGH COURT (1913.

constituted, kept and maintained a certain public road, street or highway known as the South Head Road, Rose Bay, within the said municipality and also certain kerbings and drains in along and from the said South Head Road, and so wrongfully, negli- gently and improperly constructed an open drain from which an underground drain was constructed and left the same with- out proper lighting, fencing or protection that the stonework or masonry of the said open drain was insufliciently, defectively, incompletely and improperly constructed, and the covering thereof exposed above the level of the said road, so that the said drain having broken away and not having been repaired a hole was caused and made into which plaintiff's motor car slipped and fell, and also violently struck the said exposed and projecting stone, and while stuck and unable to get out of the said hole the said motor car was struck by a passing tram, whereby and by reason whereof the said car was broken and completely wrecked and destroyed and was rendered useless and valueless."