CAMPBELLTOWN CITY COUNCIL v CRAIN [1998] NSWCA 50

CAMPBELLTOWN CITY COUNCIL v CRAIN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER, POWELL JJA and SHEPPARD AJA 9 October 1998, 23 October 1998

[1998] NSWCA 50

Highways — Negligence and nuisance — Injuries to user of highways — Liability of highway authority — In respect of what matters

Highways — Negligence and nuisance — Injuries to user of highways — Liability of highway authority Nonfeasance and misfeasance

Meagher JA I agree with Powell JA.

Powell JA This is an appeal from a verdict found, and judgment entered, by Carling DCJ on 12 February 1997 in proceedings which had been brought by the Respondent to recover damages in respect of injuries which had been sustained by the Respondent when she fell while walking along a footpath in Railway Street, Ingleburn, the title to which street, so it seems to have been accepted, was, at the time, vested in the Respondent as the appropriate roads authority.

The Respondent's claim, which was founded in negligence, evidenced a common enough misunderstanding as to the circumstances in which a roads authority, such as the Appellant, may be held liable in damages to a person who has suffered injury in an accident said to have been caused by the condition of a road the title to which is vested in it.

The Statement of Claim, which was filed on behalf of the Respondent only a little more than a month after the accident in which she was injured, alleged (inter alia) (AB 4):

"3. Whilst the Plaintiff was present upon the said footpath she fell due to the nature of the footpath and consequently suffered injury disability loss and damage.

4. In the circumstances the Defendant was under a duty of care to Plaintiff and was in breach thereof and was negligent.

Particulars of negligence

a) Failing to take any or any adequate precautions for the Plaintiff's safety; b) Putting the Plaintiff in a position of peril in the circumstances; c) Failing to maintain or adequately maintain the said footpath; d) Allowing the said footpath to fall into disrepair; e) Failing to adequately grade and drain the said footpath area with a result that the area whether the Plaintiff fell had collapsed; f) Failing to warn or adequately worn (sic) the Plaintiff of the condition of the said footpath; g) Failing to prevent by means of ropes, barricades or otherwise persons such as the Plaintiff from walking into the area of the said footpath; h) Failing to devise institute and maintain a proper and safe system of repair of footpaths."