CITATION: THREADGATE v TAMWORTH CITY COUNCIL [1999] NSWCA 32 FILE NUMBER(S): CA 40089/98 HEARING DATE(S): 24 February 1999 JUDGMENT DATE:
24 February 1999PARTIES :
ROSEMARIE ANNE THREADGATE
v
TAMWORTH CITY COUNCILJUDGMENT OF: Handley JA at 1; Powell JA at 21; Giles JA at 23
LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S) : 29/96 LOWER COURT JUDICIAL OFFICER: Nader ADCJ
COUNSEL: J D Hislop QC/T F McKenzie (Appellant)
S J Harben (Respondent)SOLICITORS: W J Enright & Son, Maitland (Appellant)
Phillips Fox (Respondent)CATCHWORDS: NEGLIGENCE - misfeasance/nonfeasance - whether the nonfeasance rule applies to footpaths and nature strips DECISION: Appeal dismissed with costs
9THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40089/98
29/96
HANDLEY JA
POWELL JA
GILES JAWednesday 24 February 1999
ROSEMARIE ANNE THREADGATE v TAMWORTH CITY COUNCIL
NEGLIGENCE - misfeasance/nonfeasance - whether the nonfeasance rule applies to footpaths and nature strips
The appellant fell in a hole on a nature strip on a Council footpath. She sued the Council and failed at the trial because of the nonfeasance rule. She appealed.
HELD, dismissing the appeal: (1) The appellant’s claim that the nonfeasance rule only applied to that part of the highway which was trafficable by vehicles failed. It applies to all areas where there is a public right of passage. Buckle v Bayswater Road Board (1936) 57 CLR 259 applied. (2) The appellant’s claim that the Council had withdrawn the nature strip from public use by planting occasional trees on it also failed. (3) The Council’s failure to erect a warning sign was not a failure in some other capacity and the nonfeasance rule applied. Turner v Ku-ring-gai Muncipal Council (1990) 12 MVR 321 distinguished.ORDERSAppeal dismissed with costs.
THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40089/98
29/96
HANDLEY JA
POWELL JA
GILES JAWednesday 24 February 1999
1 HANDLEY JA: Mrs Threadgate was in Tamworth in January 1996 for the country and western music festival. She and a friend had crossed Belmore Street Tamworth and had stepped over a brick retaining wall on the far side and proceeded to cross an unsurfaced nature strip between a concrete path and the brick retaining wall. In this unsurfaced grassed area, there was a substantial hole into which she stepped causing her to fall and suffer a significant injury.ROSEMARIE ANNE THREADGATE v TAMWORTH CITY COUNCIL
JUDGMENT
2 Belmore Street was vested in the Tamworth Council. The plaintiff’s action against the Council in the District Court was heard by Nader DCJ in February last year and the Judge found the facts relating to the accident in her favour but entered a verdict for the Council holding that the area in question was part of a public highway and there was no evidence that the Council had created or contributed to the danger by any act of misfeasance. Mrs Threadgate's action therefore failed because of what is commonly described as the nonfeasance rule under which highway authorities…
Keep reading for free
Create a free CaseChat account to read Threadgate v Tamworth City Council and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
Details
- Case
- [1999] NSWCA 32
- Decision Date
CaseChat Overview and Summary
Threadgate (the plaintiff) brought proceedings against Tamworth City Council (the defendant) in negligence concerning injuries sustained from a fall on a nature strip adjacent to a public footpath. The plaintiff alleged the fall was caused by a defect in the nature strip.
The central legal issue before the Court of Appeal was whether the established common law rule that a public authority is not liable for damage caused by its mere nonfeasance (failure to act) applies to the maintenance of nature strips, or if such areas are to be treated differently from public roads and footpaths. The plaintiff contended that the Council owed a duty of care to maintain the nature strip in a safe condition, and its failure to do so constituted misfeasance, not nonfeasance.
The Court of Appeal, applying established principles of negligence concerning public authorities, held that the nonfeasance rule applied to nature strips in the same way it applied to public roads and footpaths. The Court reasoned that the Council's failure to repair or maintain the nature strip, even if it created a hazard, was a failure to act rather than an act of misfeasance. Therefore, the Council was not liable for the plaintiff's injuries.
The appeal was dismissed with costs.
The central legal issue before the Court of Appeal was whether the established common law rule that a public authority is not liable for damage caused by its mere nonfeasance (failure to act) applies to the maintenance of nature strips, or if such areas are to be treated differently from public roads and footpaths. The plaintiff contended that the Council owed a duty of care to maintain the nature strip in a safe condition, and its failure to do so constituted misfeasance, not nonfeasance.
The Court of Appeal, applying established principles of negligence concerning public authorities, held that the nonfeasance rule applied to nature strips in the same way it applied to public roads and footpaths. The Court reasoned that the Council's failure to repair or maintain the nature strip, even if it created a hazard, was a failure to act rather than an act of misfeasance. Therefore, the Council was not liable for the plaintiff's injuries.
The appeal was dismissed with costs.
Orders
Orders of the court
Appeal dismissed with costs
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.