Harding v Lithgow Corporation

The case of Harding v Lithgow Corporation concerned an appeal to the High Court of Australia from a decision of the Supreme Court of New South Wales. The appellant, Mildred Mary Harding, brought an action as the widow of Walter Edward Harding, alleging that the respondent council was negligent in its management of levelling works, which resulted in her husband's death. The council pleaded that no notice of action had been served by the deceased during his lifetime, as required by section 580 of the Local Government Act 1919-1935 (N.S.W.), and therefore the widow had no right to sue under the Compensation to Relatives Act 1897-1928 (N.S.W.).

The central legal issue before the High Court was whether the failure of the deceased to provide the notice required by section 580 of the Local Government Act, prior to his death, extinguished the right of his widow to bring an action for damages under section 3 of the Compensation to Relatives Act. Specifically, the court had to determine the meaning of the phrase "entitled to maintain an action and recover damages" within section 3 of the Compensation to Relatives Act, and whether this entitlement was defeated by the procedural requirement of a notice of action under the Local Government Act.

The High Court, in allowing the appeal, reasoned that section 3 of the Compensation to Relatives Act creates a new cause of action for the relatives of a deceased person, contingent on the wrongful act or default being one that would have entitled the deceased to maintain an action had death not ensued. The court held that the requirement of a notice of action under section 580 of the Local Government Act is a procedural prerequisite to commencing legal proceedings, not an element of the cause of action itself. Therefore, the deceased's entitlement to maintain an action was not lost by his failure to provide the notice before his death, as this was a step that could have been taken to enforce his right, rather than a matter that destroyed the right itself. The court distinguished between the existence of a cause of action and the procedural steps necessary to enforce it.

The High Court ordered that the appeal be allowed, the judgment of the Supreme Court be set aside, and judgment in demurrer be entered for the plaintiff.