Lake Macquarie City Council v Day

The Court of Appeal of New South Wales heard an appeal concerning a claim of negligence brought by Mr Day against Lake Macquarie City Council. Mr Day alleged that the Council was negligent in its maintenance of a road, resulting in a "step" or difference in level between the original road surface and the surface of a trench dug for drainage piping. This step allegedly caused Mr Day to fall and sustain injuries.

The central legal issue before the Court was whether the Council had been negligent in the installation or maintenance of the drainage piping, which resulted in the uneven road surface. Specifically, the Court had to determine if, on the probabilities, the step was caused by the Council's actions in installing the piping, or if it was equally, or more likely, attributable to the natural degradation of the original road surface since the piping was installed. The Court considered whether the Council's conduct amounted to misfeasance, which requires an act of commission rather than mere omission.

The Court found that the evidence did not establish on the probabilities that the step was due to the Council's negligence in installing the piping. It was equally, if not more, plausible that the unevenness arose from the natural deterioration of the original road surface over time, independent of the Council's work. Consequently, the Court concluded that misfeasance had not been established.

The appeal was allowed, and orders were made regarding costs and restitution.