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Singleton Shire Council v Brodie

Singleton Shire Council v Brodie

Case [1999] NSWCA 37 16 March 1999

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CITATION: SINGLETON SHIRE COUNCIL v. BRODIE & ANOR. [1999] NSWCA 37

FILE NUMBER(S): CA 40069/97

HEARING DATE(S): 25 February 1999

JUDGMENT DATE:
16 March 1999

PARTIES :

SINGLETON SHIRE COUNCIL (Appellant)
SCOTT MUNN BRODIE (First Respondent)
LONDAY PTY. LIMITED (Second Respondent)

JUDGMENT OF: Handley JA at 1; Powell JA at 2; Giles JA at 48

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 1701/93

LOWER COURT JUDICIAL OFFICER: Tapsell A-DCJ

COUNSEL: L. King SC/W. Reynolds (Appellant)
R.S. Toner SC/J.P. Berwick (Respondents)

SOLICITORS: Moray & Agnew (Appellant)
Craddock Murray & Neumann (Respondents)

CATCHWORDS: HIGHWAYS - Negligence and nuisance - Injuries to user of highways - Liability of highway authority - In respect of what matters; HIGHWAYS - Negligence and nuisance - Injuries to user of highways - Liability of highway authority - Nonfeasance and Misfeasance

DECISION: Appeal allowed

31
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40069/97
DC 1701/93
HANDLEY JA
POWELL JA
GILES JA
15 March 1999

SINGLETON SHIRE COUNCIL v. BRODIE & ANOR

JUDGMENT

1 HANDLEY JA: I agree with Powell JA.
2 POWELL JA: This is an appeal from a Judgment delivered, and verdict found, by Tapsell A-DCJ on 31 January 1997 in proceedings in which the First Respondent (“Mr. Brodie”) and his family company, the Second Respondent, Londay Pty. Limited (“Londay”), sought to recover from the Appellant (“the Council”) damages in respect of injuries and losses which, so they alleged, they had sustained as a result of the Council’s negligence.
3 Although the history of the proceedings is not entirely clear, it would seem (AB 402-403) that, originally, the Council was the only Defendant to the proceedings, but that, after the proceedings had been commenced, the Council raised a Cross-Claim seeking to recover from Pioneer Concrete (NSW) Pty. Limited (“Pioneer”) indemnity against, or contribution toward, any damages for which it (the Council) might be held liable to Mr. Brodie and Londay. That having been done, as it would appear, Mr. Brodie and Londay caused the proceedings to be amended so as to join Pioneer as a second party-Defendant, following which Pioneer, in its turn, raised a Cross-Claim seeking to recover from the Council damages in respect of the destruction of the concrete agitator, which was owned by it, but which was fixed to the truck which was owned by Londay and which was being driven by Mr. Brodie at the time of the accident which gave rise to the proceedings. However, it would appear (AB 90, 402-403) that , during the course of the second day of the trial, the proceedings as between Mr. Brodie and Pioneer and as between the Council and Pioneer were compromised, it being said (AB 402) that “the substance of the settlement (was) that there (was) a verdict for Pioneer in each case and each party (was) to pay its own costs”. The proceedings then continued as between Mr. Brodie and Londay on the one hand and the Council on the other.
4 Although it…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Singleton Shire Council v Brodie

Details

AGLC: Singleton Shire Council v Brodie [1999] NSWCA 37
Case: [1999] NSWCA 37
Decision Date: 16 March 1999

CaseChat Overview and Summary

Singleton Shire Council (the Council) appealed to the New South Wales Court of Appeal against a judgment of the District Court of New South Wales which found the Council liable for injuries sustained by Mr Brodie when his motorcycle collided with a pothole on a road maintained by the Council. Mr Brodie had alleged negligence on the part of the Council in failing to maintain the road in a safe condition.

The central legal issue before the Court of Appeal was whether the Council had breached its duty of care to road users by failing to repair the pothole, and if so, whether this breach caused Mr Brodie's injuries. The Court was required to consider the distinction between misfeasance and nonfeasance in the context of a highway authority's liability for defects in the road.

The Court of Appeal found that the Council had not been guilty of misfeasance, meaning it had not actively created a danger. Instead, the issue concerned nonfeasance, which traditionally imposed a lesser duty on highway authorities. However, the Court clarified that a highway authority could be liable for nonfeasance if it had actual knowledge of a dangerous defect and failed to take reasonable steps to remedy it, or if it had constructive knowledge due to the notoriety of the defect. In this instance, the evidence did not establish that the Council had actual or constructive knowledge of the specific pothole that caused Mr Brodie's accident. Therefore, the Council was not liable for negligence.

The appeal was allowed, and the judgment of the District Court in favour of Mr Brodie was set aside.

Orders

Orders of the court

Appeal allowed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Singleton Shire Council v Brodie [1999] NSWCA 37

Most Recent Citation

City of Melbourne v Barnett [1999] VSCA 171

Cases citing this decision · 10 of 10 shown

Smith v Zhong
[2015] WASCA 202

…Batt v Wilkinson [1983] 2 Qd R 619 Circosta v Falzon [1999] NSWCA 308; (1999) 30 MVR 365 Cochrane v Hannaford [1999] NSWCA 37 Cole v Ellis (1992) Aust Torts Reports 81-186 Conley v Minehan [1999] NSWCA 432 Den Hoedt v Barwick [2006] WASCA 196; (2006) 46 MVR 30 Dunlany v Hunters Hill Bus Co Pty Ltd (Unreported, NSW…
Roads and Traffic Authority (NSW) v Refrigerated Roadways Pty Ltd
[2009] NSWCA 263

…CLR 431 Rowling v Takaro Properties Ltd [1988] AC 473 (UKPC) Schiller v Mulgrave Shire Council (1972) 129 CLR 116 Singleton Shire Council v Brodie [1999] NSWCA 37 Smith v Leurs (1945) 70 CLR 256 South Tweed Heads Rugby League Football Club Ltd v Cole [2002] NSWCA 205; (2002) 55 NSWLR 113 Spedding v Nobles [2007]…
Smyth v Shire of Murrindindi
[2003] VSCA 75 Para 1

…shire and ordered judgment in its favour against which the appellants appeal. [2](1950) 80 C.L.R. 357. [3][1999] VSCA 171. [4][1999] VSCA 77. [5][1999] NSWCA 37. [6]After the present case was determined, the High Court overturned the decision of the New South Wales Court of Appeal in Brodie & Anor v. Singleton Sh…
Owners - Strata Plan No 13218 v Woollahra Municipal Council
[2002] NSWCA 92 Para 8

…e authorities his Honour then concluded (RAB 18): “13.The highway immunity rule has been upheld recently in Ghantous v. Hawkesbury City Council [1999] NSWCA 37 and Brodie v. Singleton Shire Council [1999] NSWCA 51. Ghantous is the subject of an appeal in the High Court of Australia, but as I understand it success…
Brodie v Singleton Shire Council
[2001] HCA 29 Para 4

…tter of law, it had been made out, was not decided because, on the existing state of the law, it did not arise. [19] Singleton Shire Council v Brodie [1999] NSWCA 37.…
James v Shire of Bridgetown-Greenbushes
[2000] WADC 315 Para 4

…ssioner of Main Roads (1989) A Tort Rep 80-260 per Samuels JA (with whom Kirby P and Priestley JA agreed) at 68,785; Singleton Shire Council v Brodie [1999] NSWCA 37; City of Melbourne v Barnett [1999] 2 VR 726. Singleton Shire Council v Brodie ( supra ) is the subject of an appeal in the High Court of Australia.…
Suvaal v The Nominal Defendant
[2000] NSWSC 1043

…GRA 173 Marr v Holroyd Municipal Council (1986) Aust.Tort.Rep 80-031 Attorney General v Borough of North Sydney (1893) 9 WN 177 Singleton SC v Brodie [1999] NSWCA 37 Barbieri v Fairfiled City Council [1999] NSWCA 405 Ghantous v Hawkesbury CC [1999] NSWCA 51 Gosford City Council v Timbs [2000] NSWCA 31 Gloucester S…
Gloucester Shire Council v McLenaghan
[2000] NSWCA 208

…173; 9 MVR 45 McIntyre v Ridley District Council (1991) 56 SASR 343 Simon v Islington Borough Council [1943] 1 KB 188 Singleton Shire Council v Brodie[1999] NSWCA 37 Skilton v Epsom & Ewell Urban District Council [1937] 1 KB 112 Threadgate v Tamworth City Council [1999] NSWCA 32 Turner v Ku-ring-gai Municipal Coun…
Tweed Shire Council v Wood-Lightbound
[2000] NSWSC 153

…Tamworth City Council (NSWCA, 24 February 1998 unreported) Lake Macquarie Shire Council v Bottomley [1999] NSWCA 28 Singleton Shire Council v Brodie [1999] NSWCA 37 Ghantous v Hawkesbury City Council [1999] NSWCA 51 DECISION: See para 26…
City of Melbourne v Barnett
[1999] VSCA 171 Para 8

…e Council (1964) 64 S.R.(N.S.W.) 281, at 288-289; Lake Macquarie City Council v. Bottomley at pars. [37]–[38]; Singleton Shire Council v. Brodie [1999] NSWCA 37 at pars. [43]-[45]. In Campbelltown City Council v. Crain , the plaintiff injured herself when her foot became stuck in a cracked piece of footpath which…

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Cases cited in this decision · 12 of 12 shown

Hill v Commissioner of Police, New South Wales Police Service
[2002] NSWADT 218

…31 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40069/97 DC 1701/93 HANDLEY JA POWELL JA GILES JA 15 March 1999 SINGLETON SHIRE COUNCIL v. BRODIE & ANOR JUDGMENT 1 HANDLEY JA: I agree with Powell JA. 2 POWELL JA: This is an appeal from a Judgment delivered, and verdict found, by Tapsel…
Gorringe v The Transport Commission (Tas)
[1950] HCA 6

…In East Suffolk Rivers Catchment Board v. Kent ([1941] AC 74, 102) Lord Romer stated the law in the following manner: ‘Where a statutory authority is entrusted with a mere power it cannot be made liable for any damage sustained by a member of the public by reason of a failure to exercise that power. If in the exerc…
Buckle v Bayswater Road Board
[1936] HCA 65

…a legislative intention must appear to impose an absolute, as distinct from a discretionary, duty of repair and to confer a correlative private right (cf City of Vancouver v. McPhalen (1911) 45 SCR (Can) 194). No civil liability arises from the incorporated character of the road authority, or from the fact that it i…
City of Vancouver v McPhalen
(1911) 45 SCR 194

…31 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40069/97 DC 1701/93 HANDLEY JA POWELL JA GILES JA 15 March 1999 SINGLETON SHIRE COUNCIL v. BRODIE & ANOR JUDGMENT 1 HANDLEY JA: I agree with Powell JA. 2 POWELL JA: This is an appeal from a Judgment delivered, and verdict found, by Tapsel…
[1941] AC 74
[1941] AC 74

…embark upon an execution of the power, the only duty they owe to any member of the public is not thereby to add to the damages that he would have suffered had they done nothing.’ Thus the Commission was not bound to repair the road, but if it did repair the road it was under a duty to repair it without neglige…
[1912] 1 KB 118
[1912] 1 KB 118

…s situation. That being, in my opinion, the true principle, I am unable to find that the evidence brought before his Honour in this action was such as would support a claim that by the application of that principle the appellant council had been guilty of mis-feasance, and thereby became responsible for the damage…
[1892] AC 345
[1892] AC 345

…. The body remains a public authority charged with an administrative responsibility. It must decide upon what roadway it will expend the funds available for the purpose, what are the needs of the various streets and how it will meet them. A failure to act, to whatever it may be ascribed, cannot give a cause of a…
[1895] AC 433
[1895] AC 433

…administrative responsibility. It must decide upon what roadway it will expend the funds available for the purpose, what are the needs of the various streets and how it will meet them. A failure to act, to whatever it may be ascribed, cannot give a cause of action. No civil liability arises from an omission on…
Gibson v Mayor of Preston
5 QB 218

…e road authority property in and control over the road is to enable it to execute its powers in relation to the highway, not to impose upon it new duties analogous to those of an occupier of property. The body remains a public authority charged with an administrative responsibility. It must decide upon what…
(1964) 64 SR 281
(1964) 64 SR 281

…the longitudinal tracks and fell through the transverse decking as a result of which it was damaged. It was held that, at all times, the bridge was safe for the passage of heavy vehicles only if they remained on the longitudinal tracks and the repair work which was done merely maintained that situation; and, furth…
[1960] 2 QB 72
[1960] 2 QB 72

…as in fact put there as a later addition, thereby assumed an obligation to make every part of the bridge completely safe under all conditions and in all circumstances. The facts of the present case are altogether different from those in McClelland’s Case ([1912] 1 KB 118) and Tickle’s Case ((1954) 19 LGR (NSW) 25…
1 KB 118
1 KB 118

…tion. That being, in my opinion, the true principle, I am unable to find that the evidence brought before his Honour in this action was such as would support a claim that by the application of that principle the appellant council had been guilty of mis-feasance, and thereby became responsible for the damage…

Legislation cited in this decision · 2

Local Government Act 1919 (NSW)
1 mention
Suitors’ Fund Act 1951 (NSW)
1 mention

CITATION:	SINGLETON SHIRE COUNCIL v. BRODIE & ANOR. [1999] NSWCA 37
FILE NUMBER(S):	CA 40069/97
HEARING DATE(S):	25 February 1999
JUDGMENT DATE:	16 March 1999
PARTIES :	SINGLETON SHIRE COUNCIL (Appellant) SCOTT MUNN BRODIE (First Respondent) LONDAY PTY. LIMITED (Second Respondent)
JUDGMENT OF:	Handley JA at 1; Powell JA at 2; Giles JA at 48

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	1701/93
LOWER COURT JUDICIAL OFFICER:	Tapsell A-DCJ

COUNSEL:	L. King SC/W. Reynolds (Appellant) R.S. Toner SC/J.P. Berwick (Respondents)
SOLICITORS:	Moray & Agnew (Appellant) Craddock Murray & Neumann (Respondents)
CATCHWORDS:	HIGHWAYS - Negligence and nuisance - Injuries to user of highways - Liability of highway authority - In respect of what matters; HIGHWAYS - Negligence and nuisance - Injuries to user of highways - Liability of highway authority - Nonfeasance and Misfeasance
DECISION:	Appeal allowed