Lake Macquarie City Council v Bottomley

The appeal concerned the liability of Lake Macquarie City Council for injuries sustained by Mr. Bottomley when his motorcycle collided with a pothole on a public road. Mr. Bottomley alleged that the Council was negligent in its maintenance of the road, leading to his injuries. The matter was heard by the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the Council owed a duty of care to road users in relation to the maintenance of the road surface, and if so, whether the Council had breached that duty by failing to repair the pothole. The Court was required to consider the distinction between nonfeasance (failure to act) and misfeasance (an act or omission that causes harm) in the context of a highway authority's liability.

The Court of Appeal found that the Council had a duty to maintain the road in a safe condition. It reasoned that the Council's failure to repair the pothole, which had been present for a significant period and was of a size and depth likely to cause danger, constituted misfeasance rather than mere nonfeasance. The Court applied principles of negligence, holding that the Council ought to have foreseen the risk of injury to road users from such a defect and failed to take reasonable steps to prevent it.

The appeal was allowed, and the decision of the lower court was set aside.