HOLROYD MUNICIPAL COUNCIL v S FRYC [1992] NSWCA 109

HOLROYD MUNICIPAL COUNCIL v S FRYC SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, SHELLER and CRIPPS JJA 3 December 1992, 15 December 1992

[1992] NSWCA 109

NEGLIGENCE — COUNCIL — NON-FEASANCE — MISFEASANCE — DIRECTIONS TO JURY Road negligently constructed — road vested in Council — no evidence as to who constructed road — whether Council liable for non-feasance — whether sufficient evidence for a jury to make a finding of misfeasance, Held: Council not liable for non-feasance — sufficient evidence to support jury finding of misfeasance.

Directions to jury — whether trial judge erroneously described non-feasance as misfeasance. Held: judge in error — while evidence sufficient for jury to make finding of misfeasance summing-up left it open to the jury to make a finding on no more than non-feasance.

ORDERS

(1)Appeal allowed;

(2) Judgment at first instance set aside and in lieu thereof order a new trial of the action;

(3) Costs of the trial are to abide the result of the second trial subject to the discretion of the trial judge to make a different order;

(4) The respondent should pay the appellant's costs of the appeal and is to have a certificate under the Suitors and Act in respect of those costs.

Clarke JA Shortly after 7 pm on 8 March 1986 Solange Fryc (the respondent), who was then 71, fell when she stepped into a pot-hole in an unnamed street (which was described on a plan drawn in 1947 as Hawkesbury (Inner) Road) near the community shopping centre at Westmead. She suffered significant injuries and as a consequence sued the Holroyd Municipal Council (the appellant) alleging that her injuries had been caused by its negligence. The appellant admitted that the road was vested in it but denied that it had been negligent.

In her statement of claim the respondent set out the particulars of negligence on which she relied in terms which, omitting particulars so general as to be of no practical use, included the following: