Where a footpath has been constructed only four to five years before an accident and the unevenness is attributable either to improper original construction or subsidence on an inadequate base, the condition constitutes misfeasance, not nonfeasance. A council seeking to rely on delegation to an independent contractor must adduce evidence that it had reasonable grounds to believe the contractor was competent; the failure to do so, where the evidence is peculiarly within the council's knowledge, may give rise to a Jones v Dunkel inference. The question whether a council has a non-delegable duty in respect of footpath construction was left open.
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