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Buckle v Bayswater Road Board

Buckle v Bayswater Road Board

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Case Copied 15 December 1936 76 min read

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57 CLR 259

BAYSWATER ROAD BOARD

RESPONDENT. DEFENDANT,

ON APPEAL FROM THE SUPREME COURT OF

WESTERN AUSTRALIA. Negligence-Non-feasance-Misfeasance-Highway and drainage authority-Drain

constructed in roadway-Hole in roadway caused by break in drain-Failure to repair-Liability of authority-Road Districts Act 1919-1933 (W.A.) (No. 38 of 1919-No. 6 of 1933), secs. 145, 160.

A road board in Western Australia charged with the care and management of the highway and also possessing powers of drainage constructed a suburban roadway which passed through some boggy land made wet by spring water rising on adjacent land. On each side of the travelled way it dug a trench drain leading to a river where the road at that time terminated. Later, on one side of the travelled way it laid an agricultural pipe drain. A central authority then placed a bridge over the river and remade the travelled way as a main road. The agricultural pipe drain was broken in places by servants of the central authority. The road board did not repair the drain or fill in the holes so caused. The plaintiff in crossing the road put his foot into such a hole and was injured. He sued the road board for damages.

57 CLR 260

rule does not apply to drains or other artificial works placed there for purpose foreign to the road considered as a highway, such as sewers for drainage of adjoining land and the like, and a highway authority which is also a drainage authority is liable for failing to keep in a safe condition drains introduced into the roadway by it in its latter capacity.

Borough of Bathurst v. Macpherson, (1879) 4 App. Cas. 256, and Unger V Shire of Eltham, (1902) 28 V.L.R. 322; 24 A.L.T. 96, considered.

(2) By McTiernan J., that the road board was not liable for any damage flowing from mere non-feasance in failing to exercise its statutory powers to repair the road under its control, but it had a duty to prevent the artificial work which it had created from becoming a source of danger on the highway, and, having failed to observe that duty, it was guilty of a misfeasance.

Borough of Bathurst V Macpherson, (1879) 4 App. Cas. 256, applied. (3) By Latham C.J. and McTiernan J. (Dixon J. dissenting), that the plaintiff was entitled to recover from the road board damages in respect of his injuries.

Decision of the Supreme Court of Western Australia (Duyer J.) reversed.

APPEAL from the Supreme Court of Western Australia.

Harry Buckle brought an action in the Supreme Court of Western Australia against the Bayswater Road Board for damages for injuries caused by the negligence of the board in failing to repair a drain in a highway and allowing it to remain in disrepair, with the consequence that the hole became a nuisance to persons using the highway. The facts are set out in the judgments hereunder and also in the judgment of the primary judge, Dwyer J., which contained the following passages :- This road…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1936] HCA 65
Decision Date: 15 December 1936

CaseChat Overview and Summary

Harry Buckle (the plaintiff) brought an action against the Bayswater Road Board (the defendant) in the Supreme Court of Western Australia seeking damages for injuries sustained when he stepped into a hole on Garratt Road. The hole was caused by a broken drain pipe beneath the road surface. The plaintiff alleged that the road board was negligent in failing to maintain the drain and repair the resulting hole, thereby creating a dangerous nuisance on the highway.

The High Court was required to determine whether the road board, as a highway and drainage authority, owed a duty of care to the plaintiff regarding the maintenance of the drain, and if so, whether it breached that duty. Specifically, the court had to consider the distinction between non-feasance (failure to act) and misfeasance (an act or omission that causes harm), and whether the drain constituted an artificial work for which the board could be held liable, even if it was also part of the road's construction. The court also had to assess whether the actions of the Commissioner of Main Roads in reconstructing the road superseded the road board's responsibilities.

The majority of the High Court, comprising Latham C.J. and McTiernan J., found that the road board was liable. They reasoned that while a highway authority is generally not liable for mere non-feasance in repairing a road, this principle does not extend to artificial works introduced into the roadway, such as drains, which are not integral to the road's structure as a highway. The court held that the board, having constructed the drain, had a duty to maintain it in a safe condition to prevent it from becoming a danger. The fact that the drain was broken by the Commissioner of Main Roads did not absolve the board of its responsibility, particularly as the board was aware of the breakage and failed to take action. This constituted misfeasance, not mere non-feasance.

The High Court ordered that the appeal be allowed, the judgment of the Supreme Court of Western Australia be reversed, and the case be remitted to the Supreme Court for the assessment of damages. Dixon J. dissented.

Orders