Hokianga County Council Loses Appeal

Northern Advocate, 26 April 1940, Page 6

Hokianga County Council Loses Appeal

t Special to “Northern Advocate.’’] AUCKLAND, This Day. Dismissing the Supreme Court appeal of the Hokianga County Council from a magistrate's decision, Mr Justice Ostler, has held the council liable for damages arising from the collapse of one of its bridges on Hook’s Road, near Waimamaku. The sole question argued before his Honor was whether it was a case of misfeasance or merely nonfeasance on the part of the council. “The law on this point has been in an unsatisfactory state,” said his Honor, “ever since the decision of the Privy Council in the borough of Bathurst versus MacPherson.” Cause of Action. Plaintiffs in the Magistrate’s Court were Parlane Bros, of Waimamaku (Mr. Trimmer) who sued the Hokianga County Council (Mr. Reynolds) for damages caused to a motor truck which fell into the bed of the stream through the collapse of the Hook’s Road bridge. Two spans of the bridge were washed away by a flood in February, 1935, and the council repaired it by laying pinus insignus stringers across the spans. Eighteen months later it was found by a Public Works engineer to be in a dangerous condition requiring renewal, but nothing was done. No Sign Erected.

“Not only did the county council take no steps to repair the bridge,” said his Honor, “although it had fair warning of its dangerous nature, but it erected no warning sign that it was unsafe, although it had erected such signs at other bridges in the county, and it actually approved of a gazette notice of December 22, 1937, raising the maximum load of the bridge from four and a half to five tons.” The magistrate held that the council has been guilty of misfeasance, in accordance with the rule laid down in the borough of Bathurst versus MacPherson, and awarded the plaintiff £B6 17/3 damages. Against this the council appealed. On Horns of Dilemma. His Honor said in the Bathurst case it was decided that, even where there was no statutory duty to repair, if a local authority constructed an artificial work on a road fit was bound to keep it in such a state of repair as to prevent it being a danger to the users of the highway. He traversed certain subsequent decisions, and said the council appeared to be on the horns of a dilemma. The repair it did was intended either to be permanent or temporary. If it was intended as a permanent repair, then, notwithstanding that the woi'k was completely done, the use of a timber which it was known would retain its strength only for a short period, in his opinion, amounted to negligence on the part of the appellants. In his opinion, what was done actually amounted to misfeasance and not merely nonfeasance, and the magistrate was right in his decision. The appeal would be dismissed with £lO 10/- costs.