THREADGATE v TAMWORTH CITY COUNCIL [1999] NSWCA 32

New South Wales Court of Appeal CITATION : THREADGATE v TAMWORTH CITY COUNCIL [1999] NSWCA 32 FILE NUMBER(S) : CA 40089/98 HEARING DATE(S) : 24 February 1999 JUDGMENT DATE : 24 February 1999

ROSEMARIE ANNE THREADGATE PARTIES : v TAMWORTH CITY COUNCIL JUDGMENT OF : Handley JA at 1; Powell JA at 21; Giles JA at 23

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 29/96 LOWER COURT JUDICIAL OFFICER : Nader ADCJ

COUNSEL : J D Hislop QC/T F McKenzie (Appellant) S J Harben (Respondent) SOLICITORS : W J Enright & Son, Maitland (Appellant) Phillips Fox (Respondent) CATCHWORDS : NEGLIGENCE - misfeasance/nonfeasance - whether the nonfeasance rule applies to footpaths and nature strips DECISION : Appeal dismissed with costs

9 THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40089/98 29/96

HANDLEY JA POWELL JA GILES JA

Wednesday 24 February 1999

ROSEMARIE ANNE THREADGATE v TAMWORTH CITY COUNCIL

NEGLIGENCE - misfeasance/nonfeasance - whether the nonfeasance rule applies to footpaths and nature strips The appellant fell in a hole on a nature strip on a Council footpath. She sued the Council and failed at the trial because of the nonfeasance rule. She appealed. HELD, dismissing the appeal: (1) The appellant's claim that the nonfeasance rule only applied to that part of the highway which was trafficable by vehicles failed. It applies to all areas where there is a public right of passage. Buckle v Bayswater Road Board (1936) 57 CLR 259 applied. (2) The appellant's claim that the Council had withdrawn the nature strip from public use by planting occasional trees on it also failed. (3) The Council's failure to erect a warning sign was not a failure in some other capacity and the nonfeasance rule applied. Turner v Ku-ring-gai Muncipal Council (1990) 12 MVR 321 distinguished. ORDERS Appeal dismissed with costs.