Municipal Council of Sydney v Bourke
| Jurisdiction | UK Non-devolved |
| Judgment Date | 1895 |
| Date | 1895 |
| Year | 1895 |
| Court | Privy Council |
Law of New South Wales - Non-repair of Public Ways -
Held, that the appellants were not liable in damages to the respondent in consequence of their non-repair of the roads vested in them by 43 Vict. No. 3. No statutory obligation in that respect had been imposed upon them, and no right of action had been conferred on the respondent.
APPEAL from an order of the Supreme Court discharging a rule nisi (Windeyer J. dissenting) to set aside a verdict for the respondent.
The grounds on which the rule had been obtained were (1.) that the verdict was against the weight of evidence; (2.) that the appellants were not liable for any injury resulting from their non-repair of the roads as alleged.
The action was brought by the widow and administratrix of Charles Bourke, deceased, under 11 Vict. No. 32. The declaration alleged negligence in the appellants' allowing a portion of Kent street to fall into disrepair, whereby Charles Bourke was thrown from a van whilst driving, and died from the injuries received. A further allegation of the negligent and careless construction of the street was withdrawn. The Chief Justice ruled that the appellants were liable for the non-repair; the verdict was for £723, divisible amongst the widow and children. The evidence was to the effect that heavy rain and traffic for some days previous to the accident had made holes in the road, on crossing one of which the deceased had been jolted from his van.
Sir Edward Clarke, Q.C., and Poley, for the appellants, contended that the Act 43 Vict. No. 3 (see sects. 4 and 67), which vested the public ways of the city of Sydney in the municipal council, did not impose any duty to repair them or to keep them in repair. Even if the earlier Acts relating to the council had imposed any such duty as a binding obligation, the existing and consolidating Act in question did not, on its true construction, continue such obligation. The former Acts, down to and including 20 Vict. No. 36, “required” the council to keep the roads in good order and condition; referring the matter, however, entirely to the discretion of the council by the words “when and as often and in such manner as it shall think necessary.” 43 Vict. No. 3, repealed those provisions, and in lieu of “requiring” gave the council by sect. 67 “full power” to improve and maintain them. Further than that, assuming a statutory duty to repair, the Act does not give to a private person who happens to have sustained injury from a breach of such duty a right of action against the council. Borough of Bathurst v. MacphersonF1 was the basis of the judgments against the appellants in the Court below; but that was a case of misfeasance, and this of non-feasance. Cowley v. Newmarket Local BoardF2 establishes the doctrine of non-liability to an action of this kind for non-feasance even when non-feasance constitutes an indictable breach of duty. Reference was made to the other cases bearing on the subject of the liabilities of corporate bodies in respect of non-feasance and misfeasance respectively — namely, Mackinnon v. PensonF3; Couch v. SteelF4; Young v. DavisF5; Hartnall v. Ryde CommissionersF6; Yarsons v. Vestry of St. MatthewF7; Gibson v. Mayor of PrestonF8; Atkinson v. Newcastle Waterworks Co.F9; Sanitary Commissioners of Gibraltar v. OrfilaF10; Municipality of Pictou v. GeldertF11; Oliver v. Horsham Local BoardF12.
The respondent did not appear.
1895. May 10. The judgment of their Lordships was delivered by
THE LORD CHANCELLOR:—
This action was brought by the respondent, as administratrix of her deceased husband, Charles Bourke, to recover damages against the appellants in respect of their alleged negligence in allowing a portion of a certain street in Sydney, called Kent Street, to fall into disrepair, whereby the deceased man was thrown from a cart which he was driving, and killed. The sole question of law raised by the appeal is, whether the appellants are liable to an action at the suit of any person sustaining damage in consequence of the highways vested in them being allowed to fall into disrepair, or, in other words, in consequence of the non-repair of highways by them. In the view of the majority of the Supreme Court the case was concluded in the respondent's favour by the decision of this Board in Borough of Bathurst v. Macpherson.F13 Windeyer J. dissented. He thought that decision did not govern the present case, and that the appellants were entitled to judgment.
Before discussing the scope of the judgment in Borough of Bathurst v. MacphersonF13, it will be well to consider the question at issue apart from authority. It is admitted that the highway on which the disaster occurred was constructed by the appellants in the first instance quite properly. No complaint of misfeasance is made against them. The sole charge is one of non-feasance: that when the road had fallen into a bad condition, they failed to execute the necessary repairs. If, then, they are liable in the present action, it must be either because that liability has been expressly imposed by some enactment, or because the Legislature has imposed some duty upon them for the breach of which a right of action accrues to any person injured by it.
The Municipal Council of Sydney is the creation of statute, and such rights or duties as it possesses, or as are incumbent upon it, have been conferred or imposed by the Legislature. By the 6 Vict. No. 3, it was enacted that the town of Sydney should be called a city, and the inhabitants thereof were incorporated under the name of the mayor, aldermen, councillors, and citizens of the city of Sydney. The 82nd section of the same Act provided as follows:—
“That it shall be lawful for the said council and they are hereby authorized empowered and required from time to time and when and as often and in such manner as they shall think proper and necessary to order and cause the several streets roads ways …. which now are or hereafter shall be adopted as public or common highways and each and every of them respectively to be altered widened diverted turned or extended paved flagged macadamised or otherwise constructed improved repaired or amended supported and kept in good order and condition with such materials as the said council shall think proper.”
The Act of the 6th Vict. was repealed by the 14 Vict. No. 41, but sect. 84 of the later statute re-enacted the provisions of sect. 82 of the earlier Act. It has been said that this enactment required the council as a matter of legal obligation to cause the streets to be repaired and kept in good order and condition. It may be doubted...
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...can maintain an action against them for any injury arising from their neglect': Russell v. The Men of Devon". 24 In Municipal Council of Sydney v. Bourke, 1895 Appeal Cases, 433, the principle was applied to roads constructed in Sydney, New South Wales, under certain local enactments. At p......
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...J in Gorringe (1950) 80 CLR 357 at 374. 156Cowley v Newmarket Local Board [1892] AC 345 at 355; Municipal Council of Sydney v Bourke [1895] AC 433 at 157Municipal Council of Sydney v Bourke [1895] AC 433 at 435–436. 158 Before Parker v The Queen (1963) 111 CLR 610 and Australian Consolidate......
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