YASS SHIRE COUNCIL v CHRISTOPHER WAYNE BURNETT [1999] NSWCA 35

New South Wales Court of Appeal CITATION : YASS SHIRE COUNCIL v CHRISTOPHER WAYNE BURNETT [1999] NSWCA 35 FILE NUMBER(S) : CA 40622/97 HEARING DATE(S) : 19 February 1999 JUDGMENT DATE : 19 February 1999

YASS SHIRE COUNCIL PARTIES : v CHRISTOPHER WAYNE BURNETT JUDGMENT OF : Handley JA at 1; Powell JA at 22; Giles JA at 23

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 6/95 LOWER COURT JUDICIAL OFFICER : Sinclair DCJ QC

COUNSEL : D L Williams/D Banwell (Appellent) P Mahony/K Poulos (Respondent) SOLICITORS : Colin Biggers Paisley (Appellant) Elrington Boardman Allport, Yass (Respondent) CATCHWORDS : NEGLIGENCE - misfeasance - whether highway authority liable for dangerous situation created on footpath as a result of construction of drain to convey stormwater from private land ACTS CITED : Local Government Act 1919 DECISION : Appeal

9 THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40622/97 DC 6/95

HANDLEY JA POWELL JA GILES JA

Friday 19 February 1999

YASS SHIRE COUNCIL v CHRISTOPHER WAYNE BURNETT

NEGLIGENCE - misfeasance - whether highway authority liable for dangerous situation created on footpath as a result of construction of drain to convey stormwater from private land The respondent tripped in a stormwater drain on a footpath. The trial Judge found that the Council was liable, since it had constructed the drain which originated on a Council lane. HELD, allowing the appeal: (1) The drain did not originate in the Council lane but in private property. (2) The Council was not liable for a dangerous situation created on a footpath as a result of the construction of a drain to convey stormwater from private property. Sisson v North Sydney Municipal Council (1966) 1 NSWR 80 applied. (1) Appeal allowed with costs. (2) Set aside the judgment of the District Court and in lieu thereof order that there be judgment for the defendant in the action. (3) The plaintiff is to pay the defendant's costs of the action and of the appeal but is to have a certificate under the Suitors Fund Act in respect of the costs of the appeal.