URBAN TRANSIT AUTHORITY v PURCELL [1994] NSWCA 329

URBAN TRANSIT AUTHORITY v PURCELL

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY AP, MEAGHER and HANDLEY JJA 7 May 1993, 11 February 1994 [1994] NSWCA 329

APPEAL from Common Law Division — Plaintiff, when boarding bus, injured by dangerous pipe — Sued Municipal Council, Road and Transport Authority (RTA) and Urban Transit Authority (UTA) — Pipe at bus stop in dangerous condition for several months — Action based on negligence.

Held: Council and RTA not liable — UTA liable — Liability of public authority for failure to remove dangers on public street — Knowledge of danger — Availability of resources.

Mahoney AP On 30 June 1987 the plaintiff was injured when he came in contact with a jagged piece of metal projecting seven to ten centimetres from the ground. The metal was projecting from the ground at a bus stop. The plaintiff was hurrying to catch a bus, struck the metal and fell. He sued (as they were described in the proceedings) the Urban Transit Authority ("UTA"), Randwick Municipal Council ("the Council") and the Roads and Transport Authority ("RTA"). He contended that each was liable in negligence and/or nuisance. His claim raises issues of some importance and difficulty in respect of the liability of public bodies in the execution of their public duties.

At the trial and before this Court, nuisance was not argued as a separate basis of liability. The trial judge recorded that counsel for the plaintiff made no submissions as to a distinct liability for nuisance. Nuisance was referred to in passing in the argument before this Court but it was not separately suggested for the plaintiff as a basis of liability. I shall therefore confine what I say to the issue of negligence.

On 9 March 1992 McInerney J found in favour of the Council and RTA but against UTA. He awarded the plaintiff $134,818.80 damages.