Bus v Sydney County Council

The High Court of Australia heard an appeal brought by the Sydney County Council against a decision of the Court of Appeal. The dispute concerned an allegation of negligence.

The central legal issue before the High Court was whether the Court of Appeal had erred in principle by abdicating its decision-making role. Specifically, the appellant argued that the Court of Appeal had found negligence would have been established but for the precedent set by the High Court decision in *Dell'Oro*. The appellant contended that *Dell'Oro* did not bind the Court of Appeal on the question of breach of duty, as that is a question of fact.

The appellant submitted that the Court of Appeal's approach, which involved acknowledging that negligence would have been found but for *Dell'Oro* and then deferring to that precedent without independent assessment, constituted an error. The appellant argued that *Dell'Oro* dealt with the effect of a lack of expert evidence on breach, not the formulation of breach itself, and that the statement in *Dell'Oro* that the question of breach is always a question of fact and never a question of law meant it did not bind lower courts on the factual determination of breach. The High Court was therefore asked to consider the proper application of precedent, particularly when a superior court's statement might be interpreted as turning a question of fact into a question of law.