BARBIERI V FAIRFIELD CITY COUNCIL [1997] NSWCA 405
NSW Court of Appeal – 29 October 1999
FACTS
Barbieri was injured when his leg fell into a hole under a broken manhole cover. The manhole cover gave access to the stormwater drain system. The cover by replaced by the Council on the Monday following the accident.
Barbieri sued the Council for negligence. There was no direct evidence that the Council had broken the manhole cover though a contractor engaged by the Council to complete roadworks may have damaged the cover.
Council claimed that principle of nonfeasance protected it from being liable to Barbieri. The principle of nonfeasance provides that no civil liability is incurred by an authority responsible for roads for neglect to construct or repair a road.
ISSUES
Was the stormwater drain system and manhole cover part of the road system?
Had the Council actually caused the danger (the broken manhole cover) and therefore not entitled to rely on the principle on nonfeasance.
FINDING
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