Buckle v Bayswater Road Board

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 The court also had to assess whether the actions of the Commissioner of Main Roads in reconstructing the road superseded the road board's responsibilities.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.