Brodie v Singleton Shire Council
[2001] HCA 29
•31 May 2001
HIGH COURT OF AUSTRALIA
GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJSCOTT MUNN BRODIE & ANOR APPLICANTS
AND
SINGLETON SHIRE COUNCIL RESPONDENT
Brodie v Singleton Shire Council [2001] HCA 29
31 May 2001
S44/1999ORDER
1. Application for special leave to appeal granted.
2. Appeal allowed with costs.
3. Set aside the orders made by the New South Wales Court of Appeal on 16 March 1999.
4. Remit the matter to the New South Wales Court of Appeal for determination of the remaining issues on appeal.
5. The costs of the appeal to the New South Wales Court of Appeal and of the trial to abide the outcome of that appeal.
On appeal from the Supreme Court of New South Wales
Representation:
D F Jackson QC with R S Toner SC and J P Berwick for the applicants (instructed by Craddock Murray & Neumann)
F S McAlary QC with L King SC and W S Reynolds and J A Kernick for the respondent (instructed by Moray & Agnew)
Interveners:
R J Meadows QC, Solicitor-General for the State of Western Australia with C F Jenkins intervening on behalf of the Attorney-General for the State of Western Australia (instructed by Crown Solicitor for Western Australia)
J L B Allsop SC and T H Barrett intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor for New South Wales)
M A Dreyfus QC with S M Cohen intervening on behalf of the Attorney-General for the State of Victoria (instructed by Victorian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
HIGH COURT OF AUSTRALIA
GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJCATHERINE GHANTOUS APPLICANT
AND
HAWKESBURY CITY COUNCIL RESPONDENT
Ghantous v Hawkesbury City Council
31 May 2001
S69/1999ORDER
1. Application for special leave to appeal granted.
2. Appeal dismissed with costs.
On appeal from the Supreme Court of New South Wales
Representation:
A S Morrison SC with M C Walker for the applicant (instructed by Stacks The Law Firm with Goudkamp Mahony)
P R Garling SC with M T McCulloch for the respondent (instructed by Phillips Fox)
Interveners:
R J Meadows QC, Solicitor-General for the State of Western Australia with C F Jenkins intervening on behalf of the Attorney-General for the State of Western Australia (instructed by Crown Solicitor for Western Australia)
J L B Allsop SC and T H Barrett intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor for New South Wales)
M A Dreyfus QC with S M Cohen intervening on behalf of the Attorney-General for the State of Victoria (instructed by Victorian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Brodie v Singleton Shire Council
Ghantous v Hawkesbury City CouncilNegligence – Highways – Injuries to user of highway – Liability of highway authority – Whether immunity under the "highway rule" – Distinction between misfeasance and non-feasance.
Negligence – Duty of care – Statutory authority – Highway authority – Content of duty of care – Relevant considerations.
Negligence and nuisance – Whether nuisance in relation to public authorities subsumed by the law of negligence.
Highways – Negligence and nuisance – Immunity under "highway rule" – Misfeasance and non-feasance – Whether liability subsumed in general principles of negligence.
Precedent – Stare decisis – High Court – Departure from previous decisions – Relevant considerations.
Words and phrases – "highway rule" – "immunity".
Local Government Act 1919 (NSW), ss 220-277B.
GLEESON CJ. Two applications for special leave to appeal to this Court from decisions of the Court of Appeal of New South Wales have been referred to a Full Court and heard together. Each case has been fully argued as on an appeal.
In both matters, it was contended that this Court should reconsider, and overrule, a line of cases, which establish what is sometimes described as a rule of immunity, concerning the tortious liability of a public authority, responsible for the care and management of a highway, when sued by a road user who suffers damage to person or property in consequence of the condition of the highway. In brief, such an authority may be liable for a negligent act of misfeasance, but is not liable for non-feasance. It will be necessary to be more precise as to the nature and scope of the rule, but that is a sufficient description for introductory purposes.
The facts of the two matters, and the provisions of the relevant legislation, are set out in the reasons for judgment of other members of the Court. I will repeat them only to the extent necessary to explain my conclusions. One matter concerns personal injury suffered by a pedestrian using a footpath. The other concerns personal injury and property damage resulting from the partial collapse of a bridge while a heavy truck was crossing it.
It is convenient to deal first with the application in the matter of Ghantous, which can be decided on an alternative ground unaffected by the rule. The matter of Brodie, on the other hand, squarely raises the issue of whether the rule should continue to be regarded as part of the law of Australia.
The matter of Ghantous
Mrs Ghantous tripped and fell while walking along a concrete footpath. Since the original construction of the footpath, which was not shown to have been negligent in any respect, erosion had resulted in subsidence of the earth in some places, so that the verge was about 50 mm below the concrete. When she stepped aside to allow other pedestrians to pass, the applicant placed her foot so that it was partly on the concrete and partly on the lower verge. This resulted in her fall.
In England, the common law rule which the applicants in both matters seek to challenge was abolished by statute in 1961[1]. It then became easier for a pedestrian who was injured by falling on a road or footpath to succeed in an action for damages resulting from failure on the part of the responsible authorities to maintain and repair the road or footpath[2]. Even so, when general principles of negligence, unqualified by any rule of immunity, were applied, the courts insisted that an injured plaintiff had to show that the road or footpath was dangerous. That did not mean merely that it could possibly be an occasion of harm. The fact that there was unevenness of a kind which could result in a person stumbling or falling would not suffice[3]. Not all footpaths are perfectly level. Many footpaths are unpaved. People are regularly required to walk on uneven surfaces on both public and private land.
[1]Highways (Miscellaneous Provisions) Act 1961 (UK), s 1(1).
[2]See Salmond and Heuston, The Law of Torts, 21st ed (1996) at 90-91.
[3]Meggs v Liverpool Corporation [1968] 1 WLR 689; [1968] 1 All ER 1137.
In Littler v Liverpool Corporation, Cumming-Bruce J said[4]:
"Uneven surfaces and differences in level between flagstones of about an inch may cause a pedestrian temporarily off balance to trip and stumble, but such characteristics have to be accepted. A highway is not to be criticised by the standards of a bowling green."
[4][1968] 2 All ER 343 at 345.
I agree with Callinan J that no case of negligence was made out against the respondent.
Because the applicant failed at first instance and in the Court of Appeal at least partly on the basis of the rule in question, special leave to appeal should be granted. However, the appeal should be dismissed for reasons which do not depend upon the rule.
The matter of Brodie
The non-feasance rule
The manner in which the case was conducted, and decided, at first instance and in the Court of Appeal, is to be understood in the light of the law originally developed by English courts, and declared for Australia by two decisions of this Court in Buckle v Bayswater Road Board[5], in 1936, and Gorringe v The Transport Commission (Tas)[6], in 1950. Gorringe was followed by the Full Court of the Supreme Court of New South Wales in Kirk v Culcairn Shire Council[7]. As will appear, the present case is very similar to Gorringe, and is indistinguishable from Kirk.
[5](1936) 57 CLR 259.
[6](1950) 80 CLR 357.
[7](1964) 64 SR (NSW) 281.
The relevant rule is frequently, and conveniently, described as a rule of immunity. However, when considering an argument that it should be discarded by judicial decision, it is necessary to examine more closely the nature of the rule, and the reason for its existence. It is a rule concerning the extent of the legal duty of care owed by a highway authority to individual users of the highway, breach of which may give rise to an action for damages at the suit of a person who suffers damage to person or property as a result of the condition of the highway.
The problem which the rule addresses is one particular aspect of the wider problem of the manner in which the law should relate the public responsibilities of persons or bodies invested by statute with a power to manage public facilities, which include the responsibility to apply public funds for that purpose, and the rights of citizens who may be affected by the manner in which those responsibilities are exercised. The resolution of that problem, in varying circumstances, is usually the result of the combined effect of legislation and the principles of the common law. A recent example of the way in which the problem may arise in a novel situation is Crimmins v Stevedoring Industry Finance Committee[8]. We are here concerned, not with a novel situation, but with one that has a long history. In earlier times, the question of the responsibility of highway authorities to maintain and repair roads, bridges and paths, and the forms of accountability to which they were subject, which may be legal or political, sometimes arose in the context of potential criminal liability, or gave rise to issues as to forms of action, or the identity of parties to civil proceedings. In more recent times, the question is usually considered in terms of the existence and scope of a duty of care. This change reflects more general trends in the development of legal principle. But the underlying problem remains the same: it is a problem of responsibility, and of the appropriate form of accountability. The problem has both legal and political dimensions. The highway is one of the most common occasions of injury to person or property. The rights and liabilities which exist as between users of the highway are the subject of extensive legislative regulation in most Australian jurisdictions. Issues of road safety are of public concern. Programmes of road maintenance and improvement constitute a major form of the application of public funds. The question of the circumstances in which a public authority, with a statutory power to construct, maintain, repair and improve public roads, will be liable to be sued by a road user who suffers harm in consequence of the state of a road, is one in which, inevitably, legislatures are closely concerned. The non-feasance rule was described by Latham CJ in Gorringe as "a well-established legal principle of ... great importance"[9].
[8](1999) 200 CLR 1.
[9](1950) 80 CLR 357 at 362-363.
The rule is intimately related to questions of statutory interpretation. It concerns the manner in which courts understand and apply legislation about the powers and responsibilities of highway authorities.
The essence of the rule is that a highway authority may owe to an individual road user a duty of care, breach of which will give rise to liability in damages, when it exercises its powers, but it cannot be made so liable in respect of a mere failure to act. This distinction between misfeasance and non-feasance has been trenchantly, and fairly, criticised. Like many attempts to draw a line, it produces difficult borderline cases. But this line has been a feature of the law relating to the legal liability of public authorities for a long time. The question is whether the law would be better without it and, if so, whether the appropriate way to get rid of it is by decision of this Court. The first part of that question requires a consideration of the possible alternatives; the second part requires a consideration of the relationship between this Court and the parliaments which have, by their legislation, set up the statutory bodies affected by the rule.
One of the rule's most forceful critics, Professor Fleming, explained it in this way[10]:
"This immunity … negates both a general duty to repair (sounding in nuisance) and any specific obligation to exercise care in control and management even with respect to known dangers (negligence). It is, moreover, reinforced by the judicial construction that even a statutory duty to repair does not subject a road authority to liability, unless the legislature has clearly conveyed a contrary intent either expressly or by necessary implication."
[10]Fleming, The Law of Torts, 9th ed (1998) at 484-485.
The distinction between acts and omissions, which is critical to the practical operation of the rule, is, without doubt, productive of uncertainty, and of anomalous differences in the outcomes of particular cases. But it is a distinction which has been influential in the development of the common law of tort, as has been the distinction between doing an act which causes harm to someone and failing to take steps to prevent harm[11]. A legal regime which denies the existence of a duty to keep all roads in such a condition that they expose no user to any real and avoidable risk of injury may be subject to valid criticism, but it cannot fairly be described as irrational. The most obvious justification is the cost of complying with such a duty. Road maintenance and improvement involves, amongst other things, establishing priorities for the expenditure of scarce resources. Accountability for decisions about such priorities is usually regarded as a matter for the political, rather than the legal, process. Road safety involves issues of upgrading, and improving, as well as repairing, roads. As Mahoney AP pointed out in Hughes v Hunters Hill Municipal Council[12], the appropriate response to dissatisfaction with the rule may be, not its abolition, but some modification "so that that which the council must do is more closely and directly accommodated to, for example, its financial resources, the exigencies of time and the competing demands of other works". If such considerations come to depend entirely upon judicial estimation, case by case, of the reasonableness of a council's public works programme, it is at least understandable that governments may think they have cause for concern. Three State governments intervened in the present proceedings to oppose judicial abolition of the non-feasance rule.
[11]See, for example, Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 75 ALJR 164; 176 ALR 411.
[12](1992) 29 NSWLR 232 at 236.
Another reason for discontent with the non-feasance rule is the arbitrariness of having a special rule for highway authorities; an arbitrariness which is emphasised in cases where the one public body may have two capacities or sources of authority to act. This also is a cogent criticism. Why single highway authorities out for special treatment; especially when the one body may be both a highway authority and, for example, a traffic authority?
Another strong criticism is made of the further distinction that has been developed between responsibilities in relation to highways and responsibilities in relation to artificial structures (such as pipes, or grids) placed on the highway[13]. After all, a road is itself an artefact. So, even more obviously, is a bridge[14].
[13]See Fleming, The Law of Torts, 9th ed (1998) at 486-487.
[14]As to the assimilation of the position of a bridge with that of a road, see Gorringe v The Transport Commission (Tas) (1950) 80 CLR 357 at 379 per Fullagar J, and Local Government Act 1919 (NSW), s 236(2).
The question for decision is what is the appropriate judicial response to such criticisms.
In deciding that question it is necessary to take into account, not only the policy underlying the rule, but also the legal basis of the rule. The nature, and legal basis, of the rule constrains the manner in which this Court can respond to any sense of dissatisfaction with it. To change the law by abolishing an established rule does not involve reform unless what is left, or what is put in its place, is something better.
In Gorringe, Dixon J referred to "the principle upon which provisions imposing upon highway authorities a duty of repair have been construed". He said[15]:
"At common law highway authorities have never been subject to a private right of action for neglect to maintain or repair highways under their control notwithstanding the existence of a general duty to repair and maintain. They have been liable only for negligence in the course of the exercise of their powers or the performance of their duties with reference to the maintenance and reparation of highways. Statutes directing such authorities to maintain and repair roads, streets and bridges prima facie are not to be understood as conferring private rights of action in derogation from this principle."
[15](1950) 80 CLR 357 at 369.
The principle was strengthened, as a matter of statutory construction, where the statute did not impose a duty, but merely gave a discretionary power, to maintain and repair a highway. Dixon J went on immediately to contrast the rule of construction of a statute relating to a highway authority with the approach to the construction of a statute concerning a tramway authority[16]. The presently relevant point is not that there is merit in a distinction between highway and tramway authorities, but that, ultimately, the issue was seen as one of discerning, and giving effect to, the meaning and intendment of Acts of Parliament.
[16](1950) 80 CLR 357 at 369.
In the earlier case of Buckle, Dixon J explained the rationale underlying the principle of statutory construction. He said[17]:
"The purpose of giving the road authority property in and control over the road is to enable it to execute its powers in relation to the highway, not to impose upon it new duties analogous to those of an occupier of property. The body remains a public authority charged with an administrative responsibility. It must decide upon what road work it will expend the funds available for the purpose, what are the needs of the various streets and how it will meet them. A failure to act, to whatever it may be ascribed, cannot give a cause of action. No civil liability arises from an omission on its part to construct a road, to maintain a road which it has constructed, to repair a road which it has allowed to fall into disrepair, or to exercise any other power belonging to it as a highway authority."
[17](1936) 57 CLR 259 at 281-282.
The harm suffered by the applicants resulted from events which occurred in August 1992. They involved the partial collapse of a bridge forming part of a public road vested in the respondent Council. The relevant legislation was Pt IX of the Local Government Act 1919 (NSW) ("the Act"). Section 235 of the Act provided that a council may provide any public road. Section 240 relevantly provided that a council may construct, improve, maintain, protect and repair any public road and may construct, improve, maintain and repair the road with such materials and in such manner as the council thinks fit. Section 249 gave a council the care, control and management of public roads. The legislation fell squarely within the principle of construction referred to by Dixon J, bearing also in mind that it was expressed in language conferring a power rather than imposing a duty.
The proceedings at first instance and in the Court of Appeal
The first applicant was the driver, and the second applicant was the owner, of a truck which was delivering concrete to a construction site. In order to do so, the driver travelled along a road within the Shire of Singleton. The route took the truck across two timber bridges. The second bridge was known as Forrester's Bridge. On the approach to the first bridge there was a sign "BRIDGE LOAD LIMITED 15T GROSS". The loaded weight of the truck was about 22 tonnes. The first applicant drove safely across the first bridge without looking at, or taking notice of, the sign. As the truck was crossing the second bridge, the bridge partially collapsed, causing injury to the first applicant and damage to the truck. The bridge had been there for at least 50 years. There was no suggestion that it had been negligently designed or constructed. The bridge was supported by girders, which were large timber beams running parallel to the road. They had deteriorated as a result either of dry rot or white ants. This created a condition known as piping. No repairs to the girders had been carried out. On a number of occasions, over several years before the accident, timber planks on the road surfaces of the bridge had been replaced where that was regarded as necessary, but the accident had nothing to do with the condition of the planks. There was a dispute, and some uncertainty, as to the exact load-bearing capacity of the bridge in its condition at the time of the accident. There was expert evidence as to what its load limit should have been. It is not a simple matter to calculate, but figures between 9.3 tonnes and 13.5 tonnes on various assumptions were given. Vehicles of the same weight as, or greater weight than, the applicants' truck had safely crossed the bridge right up until the time of the collapse. The Court of Appeal found that the trial judge exaggerated the extent of the deterioration in the girders. There was also a dispute as to the procedures observed by the Council in relation to inspecting timber bridges for such deterioration. There was documentary evidence that all timber bridges were usually inspected about four times per year. An expert, whose evidence was accepted by the trial judge, said it should have been possible to detect the piping. The bridge was graded by the Council as being in moderately poor condition.
The trial judge found that Council staff should have discovered that the girders were substantially affected by piping and that the Council was negligent in failing to take steps to replace the girders.
The trial judge was bound by the non-feasance rule. He considered, however, that the case was one of misfeasance, and found for the applicants, making substantial awards of damages in their favour. The basis on which the case was found to be one of misfeasance was said to be the same as that which underlay the decision of the Court of Appeal of New South Wales in Hill v Commissioner for Main Roads (NSW)[18]. That was a case in which a highway authority had negligently repaired a roadway, leaving it in a condition in which it was bound to deteriorate in a manner that would cause a hidden danger to users of the highway. The manner in which the authority exercised its power to repair in effect created a trap. The trial judge regarded what had been done in relation to the surface planking of Forrester's Bridge as analogous, and concluded that the case involved misfeasance in the form of negligence in the actual exercise of a power to effect repairs.
[18](1989) 9 MVR 45.
In the Court of Appeal[19], this analogy was considered, and rejected. Powell JA, who wrote the leading judgment, disagreed with a number of findings of fact made by the trial judge. It is unnecessary to go into those areas of disagreement beyond noting that the findings of fact at first instance were in some respects reversed. Understandably, because the Court of Appeal was itself bound by the non-feasance rule, and because he took the view that the case had been litigated and decided as a case of misfeasance, Powell JA confined his criticisms to the findings relevant to the misfeasance issue. The Court of Appeal held that the replacement of the surface planks from time to time had nothing to do with the collapse of the bridge and that, if there was a close analogy, it was in the facts of Gorringe and Kirk rather than those of Hill. The real cause of complaint, if any existed, was failure to inspect and repair the girders. This was non-feasance. On that ground, the decision of the trial judge was reversed. The question whether, if a case of negligent non-feasance had been available as a matter of law, it had been made out, was not decided because, on the existing state of the law, it did not arise.
[19]Singleton Shire Council v Brodie [1999] NSWCA 37.
Leaving to one side the question whether the non-feasance rule is good law, no error has been shown in the reasoning of the Court of Appeal. However, if the non-feasance rule is not good law, then the case was conducted and decided on a false premise. Nobody can be criticised for that. The case was litigated in the light of long-standing decisions of this Court and other courts.
It becomes necessary, then, to decide whether this Court should decline to follow the reasoning in Buckle and Gorringe, overrule the line of authority which establishes the non-feasance rule, and declare that the rule no longer applies. What, if anything, is to be put in its place is a related question. Argument proceeded upon the assumption that, as the rule may be regarded as an exception or qualification to a more general principle, the general principle would then be left to apply to highway authorities, without any such exception or qualification.
Statute and common law
The non-feasance rule provides an example of the way in which statutes and principles of common law, as sources of legal rights and obligations, interact. Legislation and the common law are not separate and independent sources of law; the one the concern of parliaments, and the other the concern of courts. They exist in a symbiotic relationship.
In its practical operation, much of the law affecting the users of public roads involves a complex interplay of legislation and common law principles. For example, statutory schemes of third party insurance proceed upon the basis of the vicarious liability of owners of vehicles arising from a deemed agency, sometimes in surprising circumstances, such as where the driver of a vehicle has stolen it[20]. In some Australian jurisdictions, there is now legislation limiting the damages which may be recovered in transport accidents[21].
[20]See Fleming, The Law of Torts, 9th ed (1998) at 431-432.
[21]eg Transport Accident Act 1986 (Vic), Pt 3.
The non-feasance rule itself is a rule of statutory construction. It was developed and explained as a rule about the approach to be taken by courts in deciding whether a statute conferring a power, or imposing a duty, to maintain or repair public roads creates, or denies, or is consistent or inconsistent with, civil liability to a road user who suffers damage to person or property as a result of the condition of a road.
In Gorringe, a truck had been damaged, and the driver killed, when a culvert, which had been built to permit a highway to cross a natural water-course, collapsed. The collapse resulted from deterioration in the timber from which the culvert was constructed. The trial judge directed a verdict for the defendant authority on the basis that, at worst, there was a negligent failure to keep the culvert in good repair. That decision was upheld in the Full Court of the Supreme Court of Tasmania and in this Court. Latham CJ examined the terms of the Tasmanian statutes which empowered the authority to maintain roads. He said[22]:
"I agree with the learned trial judge and the Full Court that the relevant statutes do not show any intention to alter the law with respect to non-feasance in its application to the Transport Commission as a highway authority."
Dixon J said that statutes directing authorities to maintain and repair roads are not to be understood as conferring private rights of action in the case of non-feasance unless the legislature has used language indicating an intention that liability shall be imposed[23]. Fullagar J referred to a line of English cases as establishing two principles of law. He said[24]:
"These are (1) that at common law no person or persons, corporate or unincorporate, is or are subject to any duty enforceable by action to repair or keep in repair any highway of which, whether at common law or by statute, he or they or it has or have the management and control, and (2) that if a duty to repair or keep in repair a highway or highways is imposed by statute on any such person or persons, that duty is not enforceable by action unless the statute makes it clear by express provision or necessary implication that the duty is to be enforceable by action at the suit of a person injured by its breach."
[22](1950) 80 CLR 357 at 363.
[23](1950) 80 CLR 357 at 369.
[24](1950) 80 CLR 357 at 375-376.
The decision in Gorringe was followed by the Full Court of the Supreme Court of New South Wales in Kirk[25]. In that case a heavy truck, crossing a bridge maintained by a shire council, fell through the decking of the bridge. The trial judge accepted evidence that the bridge was in a bad state of repair, sections of it having completely rotted. An attempt was made to argue that certain repair work that had been carried out on other parts of the bridge made the bridge a trap, and constituted actionable misfeasance. That argument was rejected. On the facts, the case was a stronger case than the present for the injured party. In principle, the case is indistinguishable. As was noted above, together with Gorringe, it accounts for the way the present case was conducted, and for the way it was decided in the Court of Appeal.
[25](1964) 64 SR (NSW) 281.
In New South Wales, which is the jurisdiction with which these proceedings are concerned, the non-feasance rule has been expressly taken up by the legislature. In 1993, the year after the events giving rise to this case, the New South Wales Parliament enacted the Roads Act 1993 (NSW) which conferred certain powers of road maintenance upon the Roads and Traffic Authority ("RTA"). Section 65 provides:
"While exercising the functions of a roads authority under this Division with respect to a road for which it is not the roads authority, the RTA has the immunities of a roads authority with respect to that road."
In earlier legislation relating to the same Authority, which preceded the events giving rise to the present case[26], the legislature provided:
"The Authority has, and may exercise, in relation to a classified road or a toll work, the functions and immunities of a council in relation to a public road."
[26]State Roads Act 1986 (NSW), s 12(1).
I am unable to read these provisions as though the words "if any" appeared after "immunities". Bearing in mind that "immunity" is a shorthand reference to a rule of statutory construction, the clear purpose and effect of these provisions is to state that the rule of statutory construction shall apply to legislation relating to the RTA. It would be surprising if this Court, in the interests of removing an anomaly, were to produce the result that the non-feasance rule ceases to apply to local councils and other road authorities but it continues to apply to the RTA. The rights of road users would then depend upon which public road they were using.
In Bropho v Western Australia[27], this Court modified a common law principle of statutory construction in a certain respect. However, in doing so the Court pointed out that the effect of its decision was not to overturn the settled construction of particular existing legislation[28]. It also pointed out that a judge-made rule of construction may be supplemented by legislative provision[29]. The alteration to the law which this Court is invited to make would overturn the settled construction of particular existing legislation. And supplementing a judge-made rule of construction by legislative provision can have no effect different from repeating and extending the application of the rule by legislative provision.
[27](1990) 171 CLR 1.
[28](1990) 171 CLR 1 at 22.
[29](1990) 171 CLR 1 at 15.
In State Government Insurance Commission v Trigwell[30] this Court was concerned with an ancient common law rule concerning accidents suffered by road users as a result of animals straying onto the road. It was argued that the rule was ill-suited to modern conditions, and that this Court should reform the law by abolishing the rule. The Court declined the invitation. Mason J, with whom Gibbs, Stephen and Aickin JJ agreed, said[31]:
"I do not doubt that there are some cases in which an ultimate court of appeal can and should vary or modify what has been thought to be a settled rule or principle of the common law on the ground that it is ill-adapted to modern circumstances. If it should emerge that a specific common law rule was based on the existence of particular conditions or circumstances, whether social or economic, and that they have undergone a radical change, then in a simple or clear case the court may be justified in moulding the rule to meet the new conditions and circumstances. But there are very powerful reasons why the court should be reluctant to engage in such an exercise. The court is neither a legislature nor a law reform agency. Its responsibility is to decide cases by applying the law to the facts as found. The court's facilities, techniques and procedures are adapted to that responsibility; they are not adapted to legislative functions or to law reform activities. The court does not, and cannot, carry out investigations or enquiries with a view to ascertaining whether particular common law rules are working well, whether they are adjusted to the needs of the community and whether they command popular assent. Nor can the court call for, and examine, submissions from groups and individuals who may be vitally interested in the making of changes to the law. In short, the court cannot, and does not, engage in the wide-ranging inquiries and assessments which are made by governments and law reform agencies as a desirable, if not essential, preliminary to the enactment of legislation by an elected legislature."
[30](1979) 142 CLR 617.
[31](1979) 142 CLR 617 at 633.
His Honour went on to say[32]:
"It is beyond question that the conditions which brought the rule into existence have changed markedly. But it seems to me that in the division between the legislative and the judicial functions it is appropriately the responsibility of Parliament to decide whether the rule should be replaced and, if so, by what it should be replaced. The determination of that issue requires an assessment and an adjustment of the competing interests of motorists and landowners; it might even result in one rule for urban areas and another for rural areas. It is a complicated task, not one which the court is equipped to undertake."
[32](1979) 142 CLR 617 at 634.
Finally, he added[33]:
"The fact that the United Kingdom Parliament has abolished the rule has no relevance for us, except to confirm my opinion that the question should be left to Parliament."
[33](1979) 142 CLR 617 at 636.
All of those considerations apply with equal force to the present case. But they apply with even greater force when the rule in question is intimately connected with the way in which parliamentary legislation is interpreted, when it is one on the faith of which parliaments have expressed themselves in conferring powers and responsibilities on public authorities, and when the Parliament in the relevant Australian jurisdiction has expressly taken up the rule and extended its application to a particular public authority.
The non-feasance rule is a rule about the accountability of public authorities invested by Parliament with the responsibility of applying public funds to the construction, maintenance and improvement of public roads. The common law principle has been that such an issue is to be determined by the will of Parliament expressed in legislation, and the courts have encouraged parliaments to understand that their legislation will be interpreted and applied in a particular fashion. It is clear that parliaments have acted upon the faith of such an understanding. If the rule is to be changed, the change should be made by those who have the capacity to modify it in a manner appropriate to the circumstances calling for change, who may be in a position to investigate and fully understand the consequences of change, and who are politically accountable for those consequences.
Law reform
Part of the background to this case is that the Law Reform Commission of New South Wales has already considered, and reported upon, possible changes to the law in relation to the liability of highway authorities for non-feasance[34]. The nature of the recommendations demonstrates the complexity of the problem. The Law Reform Commission regarded the non-feasance rule as unsatisfactory and in need of legislative reform. In coming to that conclusion, it examined the law in overseas countries and in other Australian jurisdictions. We were taken in argument to that aspect of the Commission's investigations. However, the Commission did not simply propose the abolition of the rule. First, its Report distinguished between actions for personal injury and death, and actions for property damage. That is a distinction which a legislature can make. This Court cannot. There is no principle of tort law by which this Court could legitimately distinguish between a claim for damage to the suspension of a motor car which runs into a pot-hole resulting from a spell of wet weather, and a claim for personal injury to an occupant of the car. In relation to actions for personal injury or death, it was recommended that the non-feasance rule should be abolished[35], that the duty of care owed by highway authorities should be left to be determined by general common law principles[36], but that claims against such authorities should be brought within the scheme of the Transport Accidents Compensation Act 1987 (NSW)[37]. That scheme provided for benefits significantly different from common law damages. In relation to actions for property damage, the Report said that, while the Commission believed in principle that the non-feasance rule should be abolished, it would be necessary for the financial consequences of this to be investigated and, to enable that to be done, recommended postponement of further consideration of abolition for five years following the abolition of the rule in respect of claims for personal injury or death[38].
[34]New South Wales Law Reform Commission, Liability of Highway Authorities for Non-Repair, Report No 55, (1987).
[35]Par 5.2.
[36]Par 5.14.
[37]Par 5.27.
[38]Par 5.38.
The New South Wales Parliament did not act on the recommendations. On the contrary, in 1993 it enacted s 65 of the Roads Act.
What this shows is that, in this area of the law, the kind of change that might constitute reform is a matter of complexity. This Court has not investigated the financial consequences of the abolition of the rule in relation to property damage, or at all. The step we are invited to take in relation to property damage is a step the New South Wales Parliament was advised by the Law Reform Commission not to take without further investigation. The step we are invited to take in relation to personal injury and death is a step the New South Wales Parliament was advised to take subject to qualifications and it is a step which the Parliament has not taken.
These are additional reasons for concluding that it is not appropriate to change the law in the manner proposed by judicial decision.
Conclusion
In the matter of Brodie there should be a grant of special leave to appeal but the appeal should be dismissed.
Orders
In each matter, special leave to appeal should be granted but the appeal should be dismissed with costs.
GAUDRON, McHUGH AND GUMMOW JJ.
A. Introduction
These applications for special leave to appeal from decisions of the New South Wales Court of Appeal were heard consecutively and raise a fundamental question respecting the common law of Australia. This is the applicability of the principles of the torts of negligence and of nuisance in actions against public authorities on which statute confers powers for the construction, maintenance and repair of public roads, including bridges, culverts and footpaths. In this judgment, it will be convenient to consider together the facts and submissions in both applications.
Each action was tried by a judge sitting without a jury. It appears that, at least in New South Wales, claims made by pedestrians who have sustained injuries in trips and falls on footpaths account for the majority of claims made against local government authorities and are the single most expensive cause of public liability claims[39]. Ghantous is such a case. The applicant in Ghantous sued both in negligence and in nuisance. She failed in her action for damages in respect of injuries suffered on 10 July 1990 when she fell whilst stepping from a concrete footpath to an earthen verge in a street at Windsor. It was admitted on the pleadings that the respondent Council had responsibility for the care, control and maintenance of the footpath and adjacent guttering. The trial judge in the District Court held that the case was one of non‑feasance so that the action was bound to fail. An appeal was dismissed by the New South Wales Court of Appeal (Handley, Powell and Giles JJA)[40].
[39]Parliament of New South Wales, Public Bodies Review Committee, Public Liability Issues Facing Local Councils, November 2000 at 36‑37.
[40](1999) 102 LGERA 399.
The accident which gave rise to the litigation in Brodie occurred on 19 August 1992 when the first applicant drove a truck owned by the second applicant onto a bridge constructed some 50 years earlier within the Singleton Shire. The truck weighed 22 tonnes and the bridge was adapted to bear a load of 15 tonnes. The timber girders failed, the bridge collapsed and the truck fell onto the creek bed below. The second applicant's truck was damaged and the first applicant suffered injuries, particularly to his back. The applicants claimed that the accident was caused by the negligence of the respondent Shire Council. At trial in the District Court, the case was held to be one of misfeasance and there were verdicts in favour of both applicants. The first applicant recovered a verdict for $354,316.50. The second applicant recovered $43,880.30, this representing the agreed value of the truck plus interest. An appeal by the Shire Council to the New South Wales Court of Appeal (Handley, Powell and Giles JJA) was successful. It was held there that such actions as the Council may have taken in replacing defective decking planks on the bridge were no more than superficial repairs to the surface and did not remove the case from the category of non‑feasance.
In this Court, the respondents submit that the applications are foreclosed against the applicants by the holdings, or at least the reasoning, respecting the "immunity" conferred on "highway authorities" in decisions of this Court decided in 1936 and 1950 respectively. They are Buckle v Bayswater Road Board[41] and Gorringe v The Transport Commission (Tas)[42]. They also submit that the decisions in Buckle and Gorringe should not be further examined or reviewed, that in each action the Court of Appeal correctly decided that what was involved was a claim for non‑feasance and that, even if the law be as the applicants would have it, so that the tort of negligence applied without any "immunity" provided by the "highway rule", any appeal would enjoy no prospects of success.
[41](1936) 57 CLR 259.
[42](1950) 80 CLR 357.
However, the later decision of this Court in Webb v The State of South Australia[43] gives an indication of an approach more attuned to that advocated by the present applicants. The plaintiff in that case injured his foot by reason of the defendant's "artificial construction" in the highway, and recovered damages in negligence. Mason, Brennan and Deane JJ said[44]:
[43](1982) 56 ALJR 912; 43 ALR 465.
[44](1982) 56 ALJR 912 at 913; 43 ALR 465 at 467‑468.
"The question then is: What is the response which the reasonable man, foreseeing the risk, would make to it? Is the risk so small that a reasonable man would think it right to neglect it? In Wyong Mason J said[45]:
'The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.'
…
The respondent created the danger by its artificial construction in the highway. In this situation the application of a reasonable standard of care calls for the elimination of risk of injury to users of the highway presented by that artificial construction, the more so where elimination of the risk can be achieved without undue difficulty and expense. It is well established that it is the duty of highway authorities to keep:
'… the artificial work which they [have] created in such a state as to prevent its causing a danger to passengers on the highway which, but for such artificial construction, would not have existed, or, at the least, of protecting the public against the danger …'[46].
It would not be right or reasonable for a highway authority to ignore a risk of injury which it has created by its artificial construction in the highway, if it entails a possible risk of injury to pedestrians which, though small, is not fanciful or farfetched."
That treatment of the content of the duty of care was consistent with the well‑known passage in the judgment of Mason J in Wyong Shire Council v Shirt[47]. However, on existing authority, the general considerations respecting the tort of negligence to which Mason, Brennan and Deane JJ referred only applied because the false kerb (into the gap between which and the permanent kerb the plaintiff took his faux pas) was an "artificial construction"; otherwise the "immunity" would have applied to the exclusion of any liability to an action in negligence. The applicants seek the removal from the corpus of the common law in Australia of such restrictions upon what otherwise would be the operation of the tort of negligence.
[45]Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47‑48.
[46]Borough of Bathurst v Macpherson (1879) 4 App Cas 256 at 265; Thompson v Mayor, &c, of Brighton [1894] 1 QB 332 at 339; see also Buckle v Bayswater Road Board (1936) 57 CLR 259 at 283‑284.
[47](1980) 146 CLR 40 at 47‑48.
In our opinion, various considerations, taken together, favour the following conclusions. In cases such as those giving rise to the present applications, the liability of the respondents does not turn upon the application of an "immunity" provided by the "highway rule". In so far as Buckle and Gorringe require the contrary and exclude what otherwise would be the operation of the tort of negligence, they should no longer be followed. Further, it is the law of negligence which supplies the criterion of liability in such cases; the tort of public nuisance in highway cases has been subsumed by the law of negligence.
The significant question that remains in these cases is a different one. As Doyle CJ pointed out in Calvaresi v Beare[48], with reference to Crimmins v Stevedoring Industry Finance Committee[49], the question fixes upon the statutory powers of the relevant public body. In exercising or failing to exercise those powers, was the authority in breach of a duty of care owed to a class of persons which included the plaintiff?
[48](2000) 76 SASR 300 at 332‑333.
[49](1999) 200 CLR 1.
In his judgment in Ghantous, with apparent reference to the nineteenth century cases denying the existence of actions for breach of duty under various statutes, Powell JA said[50]:
"[The] immunity is reinforced by the authorities which demonstrate that, even if a duty to repair or to keep in repair a highway or highways is imposed by statute on a road authority, that duty is not enforceable by action at the suit of any person injured as the result of the failure to repair the highway or to keep it in repair until the statute makes it clear by express provision or necessary implication that that duty is to be enforceable by action at the suit of such person."
Earlier, in Gorringe[51], Dixon J had said that statutes directing authorities "to maintain and repair roads, streets and bridges prima facie are not to be understood as conferring private rights of action in derogation from [the] principle" that "[a]t common law highway authorities have never been subject to a private right of action for neglect to maintain or repair highways under their control notwithstanding the existence of a general duty to repair and maintain".
[50](1999) 102 LGERA 399 at 405.
[51](1950) 80 CLR 357 at 369. See also Buckle (1936) 57 CLR 259 at 281‑282.
Four points should be made here. First, the common law to which Dixon J referred had spoken at a time before the tort of negligence had been extricated from nuisance. This matter is considered later in these reasons under the heading "Nuisance and negligence". Secondly, in this Court the common law respecting negligence and the exercise of statutory powers has undergone significant development in recent years. This matter is to be considered under the heading "Negligence and statutory powers". Thirdly, the principles respecting the construction of statutes to discern the conferral of a cause of action for breach of statutory duty, for which express words are not required, have been refined in authorities such as Sovar v Henry Lane Pty Ltd[52]. Whether the nineteenth century authorities concerning this cause of action would necessarily be decided the same way in the light of cases such as Sovar is a subject which does not arise in this litigation. Fourthly, the case for the retention of the "immunity" is not necessarily reinforced by the continuing existence of those nineteenth century authorities. To say of a statute that it does not create a cause of action for breach of the norms it imposes is not necessarily to say that there is no room for the operation of the principles of negligence. Nor is it to the point that the statute in question is not expressed to alter what at the time of its enactment was taken to be the common law on a particular matter.
[52](1967) 116 CLR 397.
In Hughes v Hunters Hill Municipal Council[53], Mahoney AP suggested that, although not formulated as such in Buckle, the "highway rule" is a mechanism to accommodate competing interests. His Honour saw these as the cost to the community (or the responsible portion of it) for maintaining highways, the allocation of priorities for expenditure of public moneys, and the interests of individuals in safe use of those highways. To require expenditure sufficient to remove most if not all risks would be too extreme; to abandon citizens to hazardous road conditions also would be unacceptable.
[53](1992) 29 NSWLR 232 at 236.
Mahoney AP continued by stating, in a passage with which we would agree[54]:
"It may be that there is a tendency in more recent times to require the adoption of higher standards of care for individuals using public facilities notwithstanding that the adoption of them will require the expenditure of additional moneys or the diversion of moneys to those areas of public activity selected by the courts for such protection. By L Shaddock & Associates Pty Ltd v Parramatta City Council[55], councils were required to accept responsibility for answers made by them to inquiries from the public and, accordingly, to bear such cost as was involved in ensuring the accuracy of those answers. In Sutherland Shire Council v Heyman[56], the courts recognised the possible liability of a council in negligence for failing to exercise a statutory right of inspection of building works".
[54](1992) 29 NSWLR 232 at 236.
[55](1981) 150 CLR 225.
[56](1985) 157 CLR 424.
To approach in this way the issues thrown up in cases once determined by application of the "highway rule" often may favour or disfavour plaintiffs to a like degree as would have followed from the application of that rule. The outcome in the litigation may be the same. That, however, is not a consideration adverse to placing the common law of Australia on a principled basis.
B. The legislation
Each respondent Council at the relevant time owed its corporate character to the operation of Pt 2 (ss 11-15) of the Local Government Act 1919 (NSW) ("the LG Act")[57]. This provided for units of local government identified as cities, municipalities and shires. Division 1 of Pt 4 (s 22) provided for the incorporation of the councils of cities, municipalities and shires.
[57]All of the LG Act has now been repealed: Environmental Planning and Assessment Amendment Act 1997 (NSW), s 7.
Part 9 (ss 220‑277B) of the LG Act was headed "PUBLIC ROADS". The terms "road" and "pathway" were defined in s 4 as meaning respectively:
"road, street, lane, highway, pathway, or thoroughfare, including a bridge, culvert, causeway, road‑ferry, ford, crossing, and the like on the line of a road through or over a watercourse";
"a public road provided for the use only of foot passengers and of such classes of vehicles as may be defined by ordinance".
"Public road" meant a road which the public were entitled to use (s 4). The powers and duties conferred or imposed upon a council under Pt 9 applied in respect of each local government area to the council of that area (s 220(b)). Section 240(1) empowered the respondent Councils to "construct improve maintain protect repair drain and cleanse any public road"; in aid of those powers, s 249 gave them "the care control and management of every public road".
The State Roads Act 1986 (NSW) ("the RTA Act")[58] stated (in s 12(1)) that the Roads and Traffic Authority ("the RTA") (constituted under the Transport Administration Act 1988 (NSW)) had and might exercise, in relation to "a classified road" or "a toll work", the functions of the council of a city, municipality or shire in relation to a public road. The function respecting works of construction and maintenance of those classified roads which were freeways was vested exclusively in the RTA[59]. For other classified roads, agreements between the RTA and the relevant council might divide or allot the carrying out of this work[60]. It was not suggested in either of the present cases that, in respect of the roads in question, the RTA was involved in this way as a responsible actor. That actor, in each case, was the respondent Council.
C. The "highway rule" today
[58]Since repealed by s 265 of the Roads Act 1993 (NSW) ("the Roads Act").
[59]RTA Act, s 13(3).
[60]RTA Act, s 13(4)-(10).
The authorities said to establish the "highway rule" in this Court present the problem of the present status of a common law doctrine when the circumstances and assumptions upon which it depended in England never fully applied in Australia and, in any event, have disappeared or significantly changed[61]. For example, federal laws such as the National Roads Act 1974 (Cth), the States Grants (Roads) Act 1977 (Cth) and the Roads Grants Act 1981 (Cth) bear out Professor Fleming's point[62] that the assumption by central governments of significant financial responsibility for road construction and maintenance has deprived of some of its force the argument that the "immunity" always is necessary because all local authorities require it for the protection of the pockets of their ratepayers.
[61]cf Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574; Miliangos v George Frank (Textiles) Ltd [1976] AC 443 at 469‑470, 476; Lord Roskill, "Law Lords, Reactionaries or Reformers", (1984) 37 Current Legal Problems 247 at 255‑257.
[62]The Law of Torts, 9th ed (1998) at 485.
In numerous later decisions in State and Territory courts[63], Buckle and Gorringe have been taken as enshrining the "highway rule". This operates for the benefit of "highway authorities" and involves a distinction between concepts of "misfeasance" and "non‑feasance". The latter is said to bring with it an "immunity" from suit.
[63]And also in the Federal Court of Australia on appeal from the Supreme Court of the Australian Capital Territory: McDonogh v Commonwealth of Australia (1985) 9 FCR 360; Australian Capital Territory v Badcock (2000) 169 ALR 585.
The "highway rule" is said to be that, "by reason of any neglect on its part to construct, repair or maintain a road or other highway", a "road authority" incurs "no civil liability". The terms are those used by Dixon J in Buckle[64]. However, the cases develop exceptions and qualifications which so favour plaintiffs as almost to engulf the primary operation of the "immunity"[65]. The interests of public authorities cannot fairly be served by maintaining an "immunity" which functions so poorly.
[64](1936) 57 CLR 259 at 281.
[65]cf Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 544.
Those who would seek to preserve the status quo represented by the case law cannot describe the content of the common law under the "immunity" regime. That content is dictated by the caprices of unprincipled exceptions and qualifications. Yet it then is said by the respondents that some species of judicial deference to legislative authority[66] disables the courts of common law, and in particular this Court, from seeking to cure this infirmity by the application of principle.
[66]cf Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135 at 151‑155 [39]-[49], 158 [59].
Although structures such as drains, sewers and tram‑tracks may be thought to be part of the highway, the "immunity" in respect of non‑feasance may not apply to them, and, as Webb v The State of South Australia illustrates, an action for damages may lie. That is because these are "artificial structures". In Buckle, McTiernan J founded his decision against the Road Board on the proposition that the defective drain was "artificial work"[67]. Again, for the "immunity" to apply against the plaintiff, the defect or default complained of must be within the limits of the surface of the highway. Accordingly, an injured pedestrian may succeed and the "highway rule" have no application because the path in question is insufficiently associated with a road to be treated as part of it.
[67](1936) 57 CLR 259 at 300.
Further, the defendant may be a public authority with powers in respect of the highway but may not enjoy the "immunity" because it is not a "highway authority". The decision of this Court in Thompson v Bankstown Corporation[68] provides an example. The pole, in the course of climbing which the infant plaintiff received an electric shock, stood on a public highway but had been erected by the defendant in the exercise of its authority under the LG Act to provide for the transmission of electricity[69]. The plaintiff recovered in negligence because the defendant had failed in its duty to road users to take reasonable care in the management of its electricity.
[68](1953) 87 CLR 619.
[69](1953) 87 CLR 619 at 625, 641.
Finally, there is the need to distinguish between a neglect or non‑feasance and a misfeasance which will attract liability even to a highway authority.
An indication of the present position in intermediate appellate courts is provided by the observations made by Priestley JA in Gloucester Shire Council v McLenaghan[70]. There, the New South Wales Court of Appeal rejected the submission of the appellant council that at trial no finding of liability should have been made against it. The litigation arose from a car accident in 1992, about 20 kilometres from Nowendoc on the road between Gloucester and Walcha. After referring to Buckle, Priestley JA continued[71]:
"The origin of the rules stated in the case lay far away from Nowendoc both in time and space. That might not matter were it not also the case that between the time of the origin of the rules and 1936 there had been very significant change in the type and volume of road traffic, the building of roads and highways, the ways in which roads and highways were maintained and controlled, and the ways in which highway authorities were constituted and financed. Changes in these matters continued rapidly between 1936 and 1992.
The Court in Buckle upheld the non‑feasance/misfeasance distinction on the basis of a chain of authority, mostly the decisions of English judges, reaching back to the days of Coke (d 1634), when a common law liability lay upon the inhabitants of parishes or counties to repair roads. This liability was later transferred to local authorities by statute, according to Latham CJ[72]. The liability had been enforceable not by an action for damages but by indictment. Dixon J left open the possibility that in 1936 that was still the position[73]. The relevant decisions were not all consistent and Dixon J exerted his very considerable powers in reconciling the bulk of them and branding an unfortunate few as incorrect and responsible for a departure from principle requiring a process of rehabilitation which proved to be slow[74]. In 1950 Fullagar J described the position reached in regard to the immunity of highway authorities as 'very curious'[75]. Dixon J's rationalisation in Buckle of the law as he then saw it seems unpersuasive to many judges today, if the number of cases which this Court sees in which trial courts struggle to evade or limit its reach can be taken as a reliable indication. Right at the beginning of the 20th century there seems to have been some dissatisfaction in England with the position reached by the case law; in Buckle[76] McTiernan J mentioned that in 1904 Lord Halsbury had commented adversely on the fact that in some cases non‑feasance had been found where the facts really amounted to misfeasance[[77]].
In the present case the trial judge escaped Buckle's vice‑like grip by reliance on a decision of this Court, Turner v Ku‑ring‑gai Municipal Council[78] in which reference was made to the fact that the non‑feasance/ misfeasance distinction had no application to negligent omissions by a traffic authority even though it happened also to be the highway authority".
[70](2000) 109 LGERA 419.
[71](2000) 109 LGERA 419 at 421.
[72](1936) 57 CLR 259 at 268.
[73](1936) 57 CLR 259 at 292.
[74](1936) 57 CLR 259 at 290.
[75]Gorringe v The Transport Commission (Tas) (1950) 80 CLR 357 at 377.
[76](1936) 57 CLR 259 at 301.
[77]Shoreditch Corporation v Bull (1904) 90 LT 210.
[78](1990) 72 LGRA 60.
Evidence was led in McLenaghan as to the financial resources of the Gloucester Shire Council; of its significance Priestley JA said[79]:
"The evidence in the present case shows the following: the population of the Gloucester Shire was approximately 4,900, so that the number of ratepayers would be very considerably lower; the council's area was about 2,900 [square kilometres]; much of the road building and improvement in the Shire was paid for by special grants from the Commonwealth and the State; the council was earnest and persevering in its efforts to complete a fully sealed road between Gloucester and Walcha, but it was simply impossible to do so from its own funds and those otherwise made available to it, any more quickly than by the rather stately rate of progress shown in the evidence.
These features were emphasised in the council's case, on the merits, and also were no doubt symptomatic of the policy background to the non‑feasance rule. On the other side of the merits question was the fact that the council actively promoted the use of the road for tourist and commercial purposes, with a view to improving the economic life of the district. This was why the Gloucester/Walcha road was renamed Thunderbolt's Way. The council was thus in the dilemma of wanting traffic on the road to increase but not having sufficient funds to bring it quickly into the state which was planned for it.
Cases more or less like the present one are continually occurring and cause acute problems both for damaged users of the roads and the highway authorities."
D. Relevant considerations
[79](2000) 109 LGERA 419 at 423.
We turn now to the various considerations leading us in the present applications to the outcome we have indicated in the introduction to these reasons. These involve (i) the state of the law in other common law jurisdictions as it has developed since Buckle and Gorringe; (ii) the unprincipled distinctions to which those cases have given rise; (iii) the unsatisfactory dichotomy between misfeasance and non‑feasance; (iv) the classification of the "highway rule" as conferring an "immunity"; (v) the development of the law respecting negligence and the exercise of statutory powers; (vi) the role here of precedent; (vii) the clarification of the distinction between nuisance and negligence; and (viii) the relationship between the "immunity" and statute in New South Wales.
(i) Other jurisdictions
Since Buckle and Gorringe were decided, the law in other common law jurisdictions has moved away from the path said to be dictated by those cases. In Canada the distances are as great as those in Australia but the climate is harsher, even in closely settled areas. The "highway rule" and the distinction between misfeasance and non‑feasance in the exercise of statutory powers are not observed. The reasoning in Anns v Merton London Borough Council[80] has been influential in the Supreme Court of Canada. The prevailing view in the Supreme Court is that of Cory J in Just v British Columbia[81], Brown v British Columbia (Minister of Transportation and Highways)[82] and Swinamer v Nova Scotia (Attorney General)[83]. This is that there is a general duty of care on a Province to maintain its highways, that the traditional tort law duty of care applies to government agencies in the same way as to individuals and that liability is avoided only by establishing that the particular case falls within a recognised exception to the general duty. In Swinamer, Sopinka J was of the contrary view, that the bona fide exercise of a statutory power to maintain highways cannot give rise to a liability on the basis of a private law duty of care[84]. La Forest J concurred with McLachlin J. McLachlin J expressed the governing principles differently from Cory J and emphasised that public authorities have no private duty to individuals capable of founding civil action unless such a duty can be found in the terms of the relevant statute; nevertheless, liability may arise in negligence if the authority elects to exercise a power and does so negligently[85].
[80][1978] AC 728.
[81][1989] 2 SCR 1228.
[82][1994] 1 SCR 420.
[83][1994] 1 SCR 445.
[84][1994] 1 SCR 445 at 450‑451.
[85][1994] 1 SCR 445 at 449‑450.
In the United States, the subject for long has been bedevilled by the distinction between cities and counties as units of government and the treatment of municipal corporations as bodies exercising some governmental functions and thereby entitled, at least to an extent, to governmental "immunity"[86]. Most jurisdictions accept that the construction and maintenance of streets and public ways is not within the immunity[87]. Comment b to §349 of the Restatement (Second) of the Law of Torts reads:
"The duty of maintaining a highway in a condition safe for travel is, in some States by statute and in others by common law, placed upon the municipal subdivision which holds the highway open to the public for travel. This duty includes not only a duty to maintain the surface of the highway in a condition reasonably safe for travel, but also a duty of warning the traveling public of any other condition which endangers travel, whether caused by a force of nature, such as snow and ice, or by the act of third persons, such as a ditch dug in the sidewalk or roadway or an obstruction placed upon it."
[86]Williams, The Liability of Municipal Corporations for Tort, (1901), §4; Borchard, "Government Liability in Tort", (1924) 34 Yale Law Journal 1 (Pt 1), 129 (Pt 2) at 130‑138, 229 (Pt 3) at 229‑240.
[87]Prosser and Keeton on the Law of Torts, 5th ed (1984) at 1054; Harper, James and Gray, The Law of Torts, 2nd ed (1986), §29.7.
In New Zealand, it has been said that there must be doubt whether any such immunity for highway authorities would now be upheld given the adoption in that country of the reasoning in Anns v Merton London Borough Council[88]. However, for the time being, it appears that no New Zealand court has specifically rejected the "immunity"[89].
[88][1978] AC 728.
[89]Todd, The Law of Torts in New Zealand, 2nd ed (1997) at 210‑211.
In the United Kingdom, statute deals with the matter. The "rule of law exempting the inhabitants at large and any other persons as their successors from liability for non‑repair of highways" was abrogated by s 1(1) of the Highways (Miscellaneous Provisions) Act 1961 (UK). Thus, the common law doctrine, inapposite to conditions in the Australian colonies but nevertheless translated there, with the subsequent effort in Buckle to rationalise it, has ceased to apply in its country of origin. There, the state of repair of highways now is dealt with by ss 41 and 58 of the Highways Act 1980 (UK). A statutory duty is imposed to maintain highways which are maintainable at public expense but, in an action in respect of damage for breach of that duty, it is a defence that the authority took such care as was reasonable to ensure that the relevant part of the highway was not dangerous to traffic[90]. The duty requires the fabric of the highway to be kept in such good repair as to render it safe for ordinary traffic to pass at all seasons of the year, but does not extend to the prevention of ice forming on the highway or the removal of accumulated snow[91]. What is of particular significance for present purposes is that the statutory duty, by shifting the burden of proof on the issue of reasonable care to the defendant, involves an even more stringent liability for defendants than would apply under ordinary negligence principles[92]. Yet the floodgates do not appear to have collapsed.
(ii) Unprincipled distinctions
[90]See Stovin v Wise [1996] AC 923 at 939.
[91]Goodes v East Sussex County Council [2000] 1 WLR 1356; [2000] 3 All ER 603.
[92]McDonald, "Immunities Under Attack", (2000) 22 Sydney Law Review 411 at 418‑419.
Decisions at trial and in intermediate appellate courts since Buckle and Gorringe turn upon distinctions between the highway itself and other infrastructure, such as drains and sewers, between misfeasance and non‑feasance, and between road authorities and other bodies with statutory powers exercisable in respect of roads and supporting infrastructure. The decisions both are numerous and depend upon capricious differences in factual circumstances.
The maintenance of these distinctions (developed from Buckle and Gorringe) on the footing, urged by the respondent Councils in the present litigation, that otherwise their financial resources would be strained to the prejudice of other calls upon those resources, may be paradoxical. At the present day the "immunity" serves poorly the interests of public authorities. The distinctions found in the cases are apt to provoke rather than to settle litigation and to lead to expenditure of public moneys in defending struggles over elusive, abstract distinctions with no root in principle and which are foreign to the merits of the litigation. The cases are legion. In the New South Wales Court of Appeal there has been a special list for appeals in cases against highway authorities[93]. But, the cases present a wilderness of single instances because they turn upon what have long been seen as "disputable judicial escape mechanism[s]"[94] which require the drawing of distinctions not the application of principle.
[93]Forbes Shire Council v Jones [1999] NSWCA 419 at [4].
[94]The phrase is that of Professor Sawer, "Non‑Feasance Revisited", (1955) 18 Modern Law Review 541 at 546, referring to the article by Professor Friedmann, "Liability of Highway Authorities", (1951) 5 Res Judicatae 21.
The case law produces the result that a tree may be an "artificial structure", the planting of which may be a misfeasance by a highway authority. A plaintiff, injured by a fall caused by the disturbance of a footpath by the roots of such a tree, may recover damages in negligence. Yet the defendant will have the "immunity" of the "highway rule" if the tree was self‑sown or perhaps if it was planted by another authority[95] and the defendant cannot be said to have adopted and continued a nuisance[96]. What can be said in favour of such a state of affairs?
[95]See Donaldson v Municipal Council of Sydney (1924) 24 SR (NSW) 408; Grafton City Council v Riley Dodds (Australia) Ltd [1956] SR (NSW) 53; Bretherton v The Council of the Shire of Hornsby [1963] SR (NSW) 334; Hughes v Hunters Hill Municipal Council (1992) 29 NSWLR 232; Threadgate v Tamworth City Council [1999] NSWCA 32; Frankston City Council v Eyles (2000) 108 LGERA 115.
[96]See the judgment of McLelland J in Stephenson v Ku‑ring‑gai Municipal Council (1953) 19 LGR 137 at 140.
The exception or qualification respecting an "artificial structure" warrants further examination as a striking instance of the unsatisfactory state of authority. The notion, derived from the decision of the Privy Council in Borough of Bathurst v Macpherson[97], is that, if an "artificial structure" or "artificial work" is introduced onto a highway and either is dangerous or becomes dangerous through non‑repair, then the act of the authority introducing it will be treated as misfeasance; this will be so even if the cause of injury to the plaintiff is solely non‑repair of the structure[98]. The scope of this qualification is obscure. That is because, in Buckle, Dixon J (in dissent but with whom Latham CJ agreed on this point) excluded from the qualification a structure installed in the authority's "capacity" as a "highway authority", where that structure "forms part of the road construction and is put there to serve a purpose arising out of its character as a highway, as for example to carry off the surface water, or to drain off seepage and protect the road base"; in those circumstances the immunity in respect of non‑feasance will apply to that structure unless "in the first instance" the authority "acted improperly in placing it there"[99].
[97](1879) 4 App Cas 256 at 265‑266.
[98]Unger v The President, Council, and Ratepayers of the Shire of Eltham (1902) 28 VLR 322 at 326‑327; Buckle (1936) 57 CLR 259 at 298‑300.
[99](1936) 57 CLR 259 at 271, 291‑292.
This reasoning requires the drawing of distinctions between an authority acting in one "capacity" as against another (if indeed it be possible to separate them)[100]. It requires decisions as to when a structure will form "part of the road"[101], and presents evidentiary difficulties in showing that a public authority was "acting improperly". Leaving these matters aside, Dixon J's formulation proposes scrutiny of the purpose for which such a structure was installed. That may not be ascertainable. Further, the formulation assumes that structures serve only one purpose. Moreover, no principled reason was offered for the existence or operation of this qualification to the rule respecting artificial structures.
(iii) Misfeasance and non‑feasance
[100]See the distinctions between a "highway authority" on the one hand and, on the other, a "drainage authority" (Sisson v North Sydney Municipal Council [1966] 1 NSWR 580 at 581‑582); a "traffic authority" (Turner v Ku‑ring‑gai Municipal Council (1990) 72 LGRA 60 at 67); and a "tramways authority" (Sisson v North Sydney Municipal Council [1966] 1 NSWR 580 at 584; Day v Commissioner of Main Roads (WA) (1989) 9 MVR 471 at 502‑503). See also Frankston City Council v Eyles (2000) 108 LGERA 115 at 120, where the council was said to have planted a tree acting as "the factotum of all the town".
[101]In Webb v The State of South Australia (1982) 56 ALJR 912 at 913; 43 ALR 465 at 467‑468, a "false kerb" was treated as an artificial structure and the exception was applied. Contrast the views of Latham CJ and McTiernan J with those of Dixon J in Buckle (1936) 57 CLR 259 at 273‑275, 292‑293, 300.
In Gorringe[102], Fullagar J referred to the view of Sir Harrison Moore[103] that the dichotomy between misfeasance and non‑feasance had its origin in the development of trespass, case and assumpsit, and said that in relation to public authorities the distinction appears first to have been drawn by Willes J in 1867[104]. Sir Harrison Moore had also pointed to the basic issue which re‑emerges in the present litigation, saying[105]:
"The common law of tort deals with causes which look backwards to some act of a defendant more or less proximate to the actual damage, and looks askance at the suggestion of a liability based not upon such a causing of injury but merely upon the omission to do something which would have prevented the mischief. Where tortious liability arises from some cause other than the commission of an unlawful act it is in general because the defendant has done something or put himself in a position which though lawful in itself does expose the rights of others to risk and danger, unless he shows such care as the circumstances require".
Moreover, in Woollahra Council v Moody[106], Isaacs J made the point that it had never been laid down in the highway authority cases simply that there is no responsibility for non‑feasance; the phrase was "mere non‑feasance" and the force of "mere" should not be overlooked[107].
[102](1950) 80 CLR 357 at 375.
[103]"Misfeasance and Non-feasance in the Liability of Public Authorities", (1914) 30 Law Quarterly Review 276 (Pt 1), 415 (Pt 2) at 278.
[104]Parsons v St Mathew, Bethnal Green (1867) LR 3 CP 56 at 60.
[105]"Misfeasance and Non-feasance in the Liability of Public Authorities", (1914) 30 Law Quarterly Review 276 (Pt 1), 415 (Pt 2) at 278.
[106](1913) 16 CLR 353.
[107](1913) 16 CLR 353 at 361.
The category of cases with respect to negligent misstatement (which includes failures to provide information or advice, as well as failures to provide information or advice that was accurate[108]) shows both the artificial nature of the distinction between "misfeasance" and "non‑feasance" and its diminishing importance. Again, who today, given the line of judgments in this Court commencing with that of Fullagar J in Commissioner for Railways (NSW) v Cardy[109], would state the general duty of care which an occupier may owe to a trespasser as limited, in Sir John Salmond's phrase, to "positive acts of negligent misfeasance"[110]? Where the defendant "allows" or "permits" land to become or remain the source of the injurious consequences suffered by the plaintiff, "[h]is sin is nonfeasance rather than misfeasance"[111]. The issue in Hargrave v Goldman[112], where the defendant had not originated the fire which later spread to the plaintiff's land, was whether the defendant had suffered the fire to continue without taking reasonably prompt and sufficient means for its abatement (if the action be framed in nuisance)[113] or whether the defendant was negligent in not rendering harmless the fire which spread from the felled tree (if the action be framed in negligence)[114]. On either cause of action, the essential issue concerned a failure by the defendant further to act where action was called for. The same was true of the appellant council in Pyrenees Shire Council v Day[115].
[108]See the observations of Gaudron J in Perre v Apand Pty Ltd (1999) 198 CLR 180 at 198‑199 [29] and see, generally, Hill v Van Erp (1997) 188 CLR 159.
[109](1960) 104 CLR 274 at 296‑297.
[110]Salmond, The Law of Torts, 6th ed (1924) at 454.
[111]McLaren, "Nuisance in Canada", in Linden (ed), Studies in Canadian Tort Law, (1968) 320 at 335.
[112](1963) 110 CLR 40; affd (1966) 115 CLR 458.
[113](1963) 110 CLR 40 at 51.
[114](1963) 110 CLR 40 at 61.
[115](1998) 192 CLR 330.
I agree with Callinan J that no arguable case of want of care by the respondent was established. I would again grant the application for special leave, but order that the appeal be dismissed with costs.
CALLINAN J.
Catherine Ghantous v Hawkesbury City Council
Case history
The applicant, a woman of 63 years of age, on 10 July 1990, fell, after stepping from a concrete footpath on to an earthen verge in Kable St at Windsor in New South Wales. The concrete footpath was 1.2 m wide. The areas on either side of it had been earlier turfed. Traffic, wind and water had eroded the verges so that the earthen surface had subsided to a level about 50 mm or so below the level of the concrete strip. The applicant had seen two other women walking toward her. To allow them to pass she stepped to her right. She then fell "because her foot landed partly on the concrete strip and partly overhanging the lower earth surface". She suffered injuries in the fall in respect of which she claimed damages in the District Court of New South Wales.
A footpath had first been constructed in the location of the current one about 40 years earlier. No complaint had been made about it or the state of the concrete strip and verges which replaced it.
In 1984 the respondent Council, in whose local government area Windsor is situated, closed George St just around the corner from Kable St to create a pedestrian mall, and extended the paving of the new mall a short distance down Kable St. That paving extended from kerb to building alignment for some 2.5 m. A shopping centre and parking lot were also constructed at the other end of the footpath in Kable St and were opened for business a year later in 1985.
There was evidence that the stretch of narrow concrete was almost the only narrow stretch left in the central business district of Windsor. The shopping centre and the mall inevitably generated some increased pedestrian traffic but that had occurred to a relatively limited extent only.
In the originating proceedings the applicant sued the architects and landscape designers who were responsible for the design of the mall as well as the respondent Council. The case against the last was put principally upon the basis that it had failed to ensure that the design and construction of the mall were not such as to cause soil erosion of the kind that had occurred. The other two defendants were alleged to have been similarly negligent in designing, and in the case of the landscape designers, in the construction also of the mall. One particular of negligence alleged against the respondent was in this form:
"The [respondent] … [k]new or should have known that the redesign and reconstruction work involved in the Shopping Centre, Mall and consequent reconstruction of the Footpath and Guttering would lead to increased pedestrian usage of the area of the Footpath in question and its surrounds."
The applicant also pleaded that the respondent had committed a nuisance in causing or allowing the verges to deteriorate. The respondent denied that it had been negligent in any way and that the applicant was entitled to the relief sought. The respondent also pleaded that the applicant's injuries were caused or contributed to by her own negligence, in failing, in effect, to look where she was walking.
The case against the other defendants at the trial was shown to be unsustainable: it was clearly established and accepted by the applicant that there was no such increase in water flowing from the mall as to cause erosion of the verge where the applicant fell. Judgment was entered for those defendants.
The trial judge found that the combination of erosion and increased foot traffic between the mall and the parking station and the shopping centre acted upon the grass verges of the footpath to cause weathering and the subsidence that had taken place on either side of the concrete strip.
An expert called by the respondent at the trial gave evidence that it was poor maintenance to allow the surfaces alongside the concrete strip to deteriorate to the extent to which they had, and that in their current condition they were a hazard to a person stepping, as the applicant did, to one side.
The applicant submitted at the trial (to preserve her rights on appeal) that there was no longer, or there should no longer be, a distinction between non-feasance and misfeasance and that as a highway authority the respondent should be liable for both.
In argument at the trial the applicant had submitted that the mall generated additional foot traffic to the extent that the natural and necessary consequence of that traffic was the erosion of verges giving rise to the difference in levels which was the hazard to which the applicant fell victim. The trial judge posed for himself this question: "Could Council's failure to keep the [verges] in adequate repair or, with foresight to avoid such degeneration by laying an adequate footpath be said to be a misfeasance?"
His Honour declined to distinguish between a footpath and the vehicular carriageway. The former was part of the road. It was unnecessary for his Honour to deal with the respondent's case that it had not been negligent and that the applicant's fall was caused by her own negligence. His Honour answered the question that he had posed for himself by holding that this was a case of non-feasance and he was accordingly bound to dismiss the applicant's action.
In the Court of Appeal of New South Wales
An appeal to the Court of Appeal of New South Wales (Handley, Powell and Giles JJA) was dismissed[555]. Powell JA (with whom the other members of the Court agreed) did not doubt that the works on the footpath were carried out in a proper and workmanlike manner[556]. His Honour noted that there was no obligation upon road authorities to monitor roads and that an immunity in this respect negated a general duty to repair, and further, any specific obligations to exercise care with respect even to known dangers. His Honour's reasons included this[557]:
"[T]he law is clear that, in order that it might be charged with misfeasance, a road authority must have been an active agent in creating, or adding to, an unnecessary danger in the highway (see, for example, Buckle v Bayswater Road Board[558]; Bretherton v Hornsby Shire Council[559]) and the findings of fact made by Freeman DCJ demonstrate clearly that the respondent has taken no action in relation to the footpath at the site of the accident which created or added to an unnecessary danger."
[555](1999) 102 LGERA 399.
[556](1999) 102 LGERA 399 at 402.
[557](1999) 102 LGERA 399 at 420.
[558](1936) 57 CLR 259.
[559](1963) 63 SR (NSW) 334.
The applicant had also argued on the appeal as she had at the trial, that the footpath was not part of the road and that any immunity that a road authority enjoyed did not extend to it. The submission was made without reference to the Local Government Act 1919 (NSW) ("the Act"). It was rejected on the basis that authority[560] supported the conclusion that a footpath formed part of the road reserve and that an immunity for non-feasance extended to it. The appeal was dismissed and a cross-appeal on an issue as to costs with which this Court is not concerned was upheld.
[560]Buckle v Bayswater Road Board (1936) 57 CLR 259; Gorringe v The Transport Commission (Tas) (1950) 80 CLR 357; Grafton City Council v Riley Dodds(Australia) Ltd (1955) 56 SR (NSW) 53.
The application to this Court
An application for special leave was made to this Court.
In my opinion the application should fail at the outset. The respondent has not abandoned its contention that it was not negligent, whether as a highway authority or otherwise[561]. Even if I were to assume that an action in negligence lay against the respondent for any failure to maintain or improve the footpath to keep or make it safe, whether as a matter of misfeasance or otherwise, I would conclude that there was no failure in that regard because the footpath was not, despite what the expert witness was allowed to say, unsafe. The case of the applicant in negligence was that a differential in height between the concreted part of the footpath and the earthen part of it created a dangerous situation. A court is not obliged to accept an expert, especially when his or her evidence is evidence purportedly resolving and concluding an issue of the kind which arose here[562]. A court is not bound to accept that a matter of ordinary observation such as the readily apparent state of the footpath is a matter calling for expert opinion. But in any event the expert's opinion (uncontradicted as it was) did not go so far as to say that the "poor maintenance" which caused the "hazard" actually caused one of such a nature that to leave it unrectified was negligent. There was no concealment of the difference in height. It was plain to be seen. The world is not a level playing field. It is not unreasonable to expect that people will see in broad daylight what lies ahead of them in the ordinary course as they walk along. No special vigilance is required for this. The applicant herself admitted in cross-examination that she knew before the day of the accident that the earthen surface was lower than the concrete surface. The photographs tendered at the trial clearly show that there was a discernible difference between the kerb and the earthen verges. There was no negligence on the part of the respondent either in the construction of the footpath or in not keeping the concrete strip and verges level.
[561]Respondent's submissions, pars [4] and [5].
[562]Naxakis v Western General Hospital (1999) 197 CLR 269 at 306 [110], fn 137.
In deference to the other arguments of the applicant I will say something briefly about them. The first of these was again that the footpath was an area apart from the road and was not something to which the law relating to road
authorities applied. The inclusive definitions in s 4 of the Act, however, of "Pathway"[563], "Road"[564] and "Public road"[565] provide a complete answer to this.[563]"'Pathway' means a public road provided for the use only of foot passengers and of such classes of vehicles as may be defined by ordinance."
[564]"'Road' means road, street, lane, highway, pathway, or thoroughfare, including a bridge, culvert, causeway, road-ferry, ford, crossing, and the like on the line of a road through or over a watercourse."
[565]"'Public road' means road which the public are entitled to use, and includes any road dedicated as a public road by any person or notified, proclaimed or dedicated as a public road under the authority of any Act, including this Act, or classified as a main road in the Gazette of the thirty-first day of December, one thousand nine hundred and six."
The legal question that was argued was that the respondent owed a duty to the applicant to make the footpath safe (on the assumption that it was unsafe at the material time).
The applicant submitted that although the respondent pursuant to s 240(1)(a)[566] of the Act had power to, but was not obliged to construct and maintain roads, Buckle v Bayswater Road Board[567] stands as authority for the proposition that a positive obligation may be inferred from statutory provisions apparently permissive in language. However, the sections of the Act upon which the applicant relies in this case are the same as those referred to by the applicant in Brodie v Singleton Shire Council[568]. They do not, as I point out in that case, have the effect for which the applicant here contends. Both Buckle and Gorringe v The Transport Commission (Tas)[569] have been consistently applied in all the States[570]. I do not think that it is for this Court to devise a different rule which could have financial and other ramifications far beyond those of which this Court might be aware.
[566]"Power to construct and improve roads
240(1) The council may construct improve maintain protect repair drain and cleanse any public road, and in particular and without limitation of any other power conferred by this Act the council may in respect of any public road:
(a)construct improve maintain repair and cleanse the road with such materials and in such manner as the council thinks fit …"
[567](1936) 57 CLR 259.
[568]See Gorringe v The Transport Commission (Tas) (1950) 80 CLR 357.
[569](1950) 80 CLR 357.
[570]See, in Queensland – Commissioner of Main Roads v O'Ryan (1992) 78 LGERA 387; ACT – Watts v Australian Capital Territory (1997) 139 FLR 8; Victoria – Transport Accident Commission v Shire of Corangamite unreported, Supreme Court of Victoria, 29 April 1998; South Australia – McIntyre v Ridley District Council (1991) 56 SASR 343; Western Australia – Hennessey v City of Fremantle (1995) 12 SR (WA) 360; Northern Territory – Hatch v Alice Springs Town Council (1989) 100 FLR 56.
The applicant also submitted that she was a person within the class of persons to whom a duty was owed as formulated in Pyrenees Shire Council v Day[571].
[571](1998) 192 CLR 330.
In support of this proposition the applicant relied in particular on a passage in the judgment of Gummow J[572]:
"The general rule is that 'when statutory powers are conferred they must be exercised with reasonable care, so that if those who exercise them could by reasonable precaution have prevented an injury which has been occasioned, and was likely to be occasioned, by their exercise, damages for negligence may be recovered'[573]. A public authority which enters upon the exercise of statutory powers with respect to a particular subject matter may place itself in a relationship to others which imports a common law duty to take care which is to be discharged by the continuation or additional exercise of those powers[574]. An absence of further exercise of the interconnected statutory powers may be difficult to separate from the exercise which has already occurred and that exercise may then be said to have been performed negligently[575]. These present cases are of that kind. They illustrate the broader proposition that, whatever its further scope, Lord Atkin's formulation in Donoghue v Stevenson[576] includes 'an omission in the course of positive conduct ... which results in the overall course of conduct being the cause of injury or damage'[577]."
In my opinion Pyrenees cannot be regarded as an authority governing this case. It was not concerned with the use and maintenance of roads. No matter what might be thought of the singling out for special treatment in law of what road authorities may or may not do in relation to roads, without rendering them liable to users of them, the distinction between roads and other works is very well entrenched in this country. Legislatures in expressing the powers and duties of road authorities to construct and maintain roadworks must have been well aware of this. As Latham CJ said in Buckle[578]: "[T]he rule of non-liability for non-feasance in the case of a highway authority must be regarded as fully established." And Dixon J in the same case said[579]: "But the existence of such powers gives rise to no civil liability for the consequences of the defective state of a road."
[572](1998) 192 CLR 330 at 391-392 [177].
[573]Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202 at 220; Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 436, 458, 484.
[574]Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 459-460.
[575]cf Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 479; Fellowes v Rother District Council [1983] 1 All ER 513 at 522; X (Minors) v Bedfordshire County Council [1995] 2 AC 633 at 763.
[576][1932] AC 562 at 580.
[577]Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 501.
[578](1936) 57 CLR 259 at 269.
[579](1936) 57 CLR 259 at 281.
There are further real points of distinction between this case and Pyrenees: the statutory framework governing the Council's powers in issue there as summarised by McHugh J[580] was quite different from the way in which Councils' powers in respect of roads are expressed and have been understood and construed in the cases. Furthermore the Council there had actual knowledge of the dangers that the premises which had been inspected by it presented.
[580](1998) 192 CLR 330 at 371-372 [112].
In Buckle, Dixon J re-examined many of the earlier cases in which the extent of a highway authority's obligations and the availability of a defence of non-feasance were considered. Some of these cases might be properly regarded as cases of nuisance rather than of negligence. Indeed Buckle itself may have been such a case, although the narrative in the report refers in terms to negligence[581]. Their Honours who decided Buckle would have been alive to the different elements of the torts. The statements of principle were, however, unqualified and establish that a highway authority will not be liable for non-feasance for roadworks whether what has occurred has resulted from negligence or nuisance properly so called.
[581](1936) 57 CLR 259 at 260.
It is true that the distinction between non-feasance and misfeasance has often been criticised. Some of these criticisms were echoed in the submissions[582] of the applicants in Brodiev Singleton Shire Council which was argued at the same time as this case, that the distinction between misfeasance and non-feasance has led to the drawing of fine distinctions between roadworks and other works on or about them. So much may be accepted but that is no more than to say that such cases[583] are no different from many other cases in tort, in which difficult questions of fact have to be answered. It should not be overlooked that in this country road authorities are called upon to construct and maintain roads over vast distances and at great cost, roads whose use is not necessarily confined to those who pay for them. This is no doubt a powerful policy consideration operating on the minds of legislators in enacting legislation in respect of road authorities.
[582]Buckle, it was argued, ultimately turned on whether the drain in question was related to the road or had both a road and non-road function. See also Tickle v Hastings Shire Council (1954) 19 LGR 256, a decision of the Supreme Court of New South Wales upholding a jury verdict on facts similar to this case. In Kirkv Culcairn Shire Council (1964) 64 SR (NSW) 281, a different conclusion on not dissimilar facts was reached. See further Law Reform Commission of Western Australia, Report on the Liability of Highway Authorities for Non-feasance, Project No 62, (1981) at 48.
[583]See, for example, Tickle v Hastings Shire Council (1954) 19 LGR 256; KirkvCulcairn Shire Council (1964) 64 SR (NSW) 281; McDonogh v Commonwealthof Australia (1985) 9 FCR 360; Hill v Commissioner for Main Roads (1989) 68 LGRA 173 at 179-180 per Samuels JA; Law Reform Commission of Western Australia, Report on the Liability of Highway Authorities for Non-feasance, Project No 62, (1981) at 48; New South Wales Law Reform Commission, Liability of Highway Authorities for Non-Repair, Report No 55, (1987), par 2.11.
That the rule and the distinction may have been heavily criticised does not avail the applicant. The legislature here has not chosen to abolish or change the rule as has occurred, for example, in the United Kingdom where the Parliament there passed the Highways Act 1980 (UK) to impose a duty to maintain highways at public expense (s 41) upon road authorities, and to prescribe the conditions for a successful defence to an action by such an authority (s 58). This is a case of deterioration over time of works which were not originally improperly designed or executed and of a kind to which Dixon J referred in Buckle[584] as not giving rise to any civil liability on the part of the respondent.
[584](1936) 57 CLR 259 at 284-285.
Non-feasance by a Council empowered, but not obliged, to monitor roadworks as the respondent was, is not actionable by a person injured as a result of it in this country.
I would allow the application for special leave to appeal and dismiss the appeal with costs.
Scott Munn Brodie and Anor v Singleton Shire Council
Case history
This and the application for special leave in Ghantous v Hawkesbury City Council were argued at the same time. The facts may be shortly stated. On 19 August 1992, the first applicant drove a truck which was owned by the second applicant on to a bridge constructed within the respondent's locality some 50 years earlier. It was designed to bear a load of 15 tonnes. The truck weighed 22 tonnes. The first applicant a short time before approaching the bridge in question had safely driven the truck across another bridge on the same road which had been signposted as having a capacity of 15 tonnes only. The timber girders of the second bridge failed and it collapsed. The truck fell to the creek bank below. The truck was damaged and the first applicant injured. The applicants sued in the District Court of New South Wales. The case was heard by Tapsell ADCJ who held the case to be one of misfeasance and awarded the applicants a total of almost $400,000 in damages.
The history of the bridge was that the planks in it had been replaced from time to time. In the ordinary course, in recent times it would have been inspected about four times a year and "minor components" in it such a decking or hand railings, if found to be defective, replaced. The trial judge made a finding that the planking was repaired six times between March 1986 and July 1991. An inspection of the bridge had been made in 1991 for the purpose of determining whether a crane of 20 tonnes might safely cross over it. It was so determined and a crane of that weight crossed the bridge without incident. His Honour held that, in July 1991, on the last occasion of the repair of planking, the respondent should have discovered the defects that led to the collapse of the bridge, although it was not the planking of the bridge but the supporting girders that were defective and failed. For these reasons he gave judgment for the applicants.
The appeal to the Court of Appeal of New South Wales
An appeal to the Court of Appeal of New South Wales (Handley, Powell and Giles JJA) was upheld. Powell JA, with whom the other members of the Court agreed, analyzed the evidence upon which the primary judge relied for his findings as to misfeasance. His Honour stated his conclusions on that evidence in this passage[585]:
"At best, the evidence, insofar as it was relevant, demonstrated that, from time to time over the years, the Council replaced decking boards which appeared to require replacement. There is not the slightest evidence that, before any such boards were replaced, the bridge had become impassable. Given the unqualified evidence of Mr Brand that the bridge decking in no way affected the structural integrity of the bridge itself; the absence of any evidence indicating when, if at all, the Council had carried out work on the structural members of the bridge; the absence of any evidence as to the state of the bridge at any time when decking planks may have been replaced; the evidence of Mr Brand to which I have earlier referred as to the weight carrying capacity of the bridge even in the state in which it was immediately prior to the accident; and such evidence as there was as to the user of the bridge both prior to and on the day of the accident; it seems to me that to attempt, as Tapsell A-DCJ did, to describe the bridge as 'impassable', and, having done so, to apply by analogy the observations of Dixon J in the passage from his Judgment in Gorringe v The Transport Commission (Tas)[586] to which I have earlier referred was totally insupportable. With respect to those who may be of another view, it seems to me that such actions as the Council may, from time to time, have taken in replacing defective decking planks are to be regarded as no more than superficial repairs to the road surface and thus – since they did not increase the risks of accidents – did not subject the Council to liability."
[585]Singleton Shire Council v Brodie [1999] NSWCA 37 at [46].
[586](1950) 80 CLR 357.
The application to this Court
The applicants applied for special leave to appeal to this Court. Their first submission was that the distinction between non-feasance and misfeasance and the consequences attaching to it were illogical, the subject of much justifiable criticism, outmoded, misconceived, historically nonsensical in principle, unjustified, and should, in any event, be discarded on policy grounds. Alternatively they submitted that this was a case in which, in any event, misfeasance had been proved. The applicants also submitted that on a proper examination of the relevant legislation governing the responsibility of the respondent for roads within the shire, the respondent was under a continuing duty to ensure that a road, of which a bridge was part, was safe.
It is with the last submission that I will deal first. Attention was drawn to s 220[587] of the Local Government Act 1919 (NSW) ("the Act") which refers in general terms to the powers and duties conferred upon cities and shires in respect of the subject matter of Pt IX of the Act, "Public Roads". Section 226 makes provision for the classification of roads. The mandatory language of ss 227 and 229 prescribes the widths of roads within each classification. Section 230 also uses the word "shall" but neither s 232[588], s 235[589], s 236[590], s 240[591] nor s 249[592] which, the applicants submit, implies an obligation rather than confers a mere power, does so, except in a limited way which has nothing to say about the imposition of any positive obligation to keep a road in repair. Section 233(2) is concerned with the vesting of property in the Council. Section 235 by contrast makes clear that a Council may provide a public road, and s 236 enacts that a Council shall have power, but, it may be observed, not a duty, to provide, among other things, a bridge. Section 240 provides that a Council may repair a public road and s 249 that a Council shall have the care, control and management of every known road. It is to this last provision in particular that the applicants point for this limb of their argument. But to provide that a Council shall have the care, control and management of a road or a bridge is not to say how, when, and in what circumstances, at what expense, and in what order of priorities repairs are to be made, or indeed that repairs must be made at all.
[587]"Application
Subject to the provisions of this Act:
(a)this Part shall apply to municipalities and shires; and
(b)the powers and duties conferred and imposed upon a council under this Part shall apply in respect of each area to the council of the area."
[588]"Fee-simple
(1)Except where otherwise expressly provided [by this Act, the Crown and Other Roads Act 1990 or any other Act], every public road, and the soil thereof, and all materials of which the road is composed, shall by virtue of this Act vest in fee-simple in the council, and the council, if it so desire, shall by virtue of this Act be entitled to be registered as the proprietor of the road under the provisions of the Real Property Act 1900.
(2)The vesting in fee-simple under this section shall be deemed to be not merely as regards so much of the soil below and of the air above as may be necessary for the ordinary use of the road as a road, but so as to confer on the council subject to the provisions of this Act the same estate and rights in and with respect to the site of the road as a private person would have if he were entitled to the site as private land held in fee-simple with full rights both as to the soil below and to the air above.
(3)Unless otherwise expressly provided nothing in this section shall be deemed:
…
(4)This section shall bind the Crown." (emphasis added)
[589] "Power to provide roads
(1)The council may provide any public road, and in particular and without limitation of this or any other power conferred by this Act the council may:
(a)make surveys for the laying out of a new public road;
(b)lay out, construct, and open a new public road;
(c)extend and widen a public road;
(d)divert or alter the course of a public road;
(e)determine what proportion of the width of a public road shall be devoted to carriage-way, bicycle-way, footway, tree-planting, gardens, grass-plots, island refuges, public conveniences, street lamps, fountains, monuments, statues, and the like;
(f)widen a public road to or beyond the width or widths applicable to the road under section 229(2) or to a width or widths less than that width or those widths.
(2)Any land required for the purposes of this section may be acquired in any mode authorised by this Act." (emphasis added)
[590] "Bridges, road-ferries etc.
(1)The power of the council to provide any public road shall include the power to provide:
(a)any bridge, causeway, and the like over any water or depression crossing the line of the road;
…
(2)For the purposes of any other power of the council in respect of a public road any bridge, causeway, road-ferry, ford, or the like provided by the council in accordance with this section shall be deemed to be a public road."
[591]"Power to construct and improve roads
(1)The council may construct improve maintain protect repair drain and cleanse any public road, and in particular and without limitation of any other power conferred by this Act the council may in respect of any public road:
(a)construct improve maintain repair and cleanse the road with such materials and in such manner as the council thinks fit …" (emphasis added)
[592]"Care control and management of roads
The council shall have the care control and management of every public road, and in particular and without limitation of this or any other power conferred by this Act the council may in respect of any public road …"
As Dixon J said in Buckle v Bayswater Road Board[593]:
"The purpose of giving the road authority property in and control over the road is to enable it to execute its powers in relation to the highway, not to impose upon it new duties analogous to those of an occupier of property."
The legislation may be contrasted with that which was considered by this Court in Crimmins v Stevedoring Industry Finance Committee[594]. There what were described as functions and powers enacted by the Stevedoring Industry Finance Committee Act 1977 (Cth) could, indeed, in my opinion, should be construed as being in the nature of duties to give the legislation any reasonable degree of efficacy at all[595]. On the other hand, a local authority may, indeed must, function in a less than perfect world of roads within its boundaries of various classifications, various degrees of use, and in various states of deterioration and repair. The Act does not have the meaning for which the applicants contend. It does not impose any statutory obligation to keep roads (and bridges) within the shire in good repair.
[593](1936) 57 CLR 259 at 281.
[594](1999) 200 CLR 1.
[595](1999) 200 CLR 1 at 116-117 [365]-[369] per Callinan J.
As to the other argument of the applicants, that the distinction between misfeasance and non-feasance is not founded on principle, and is, in any event, ripe for reconsideration and should be discarded, I would add only a few observations to what I have said in Ghantous in rejecting the same argument there.
It was suggested in argument that the word "immunity" which was used in the courts below, in this Court, in other jurisdictions and by the respondents and interveners in this case and Ghantous interchangeably with the defence of non-feasance, was a misnomer, and overstated the position of road authorities. That may be so. Its use is probably explicable on the grounds that historically the causing of an obstruction or a danger on a road was likely to constitute a public nuisance and therefore a criminal offence[596], and that it was immunity in respect of this that a local authority and its officers needed to avoid conviction for it. Nuisance, either public or private, may sometimes involve negligence and at other times not[597]. The word "immunity" was, however, adopted by the legislature in terms in s 12(1) of the State Roads Act 1986 (NSW). Section 12(1) provided as follows:
"The Authority has, and may exercise, in relation to a classified road or a toll work, the functions and immunities of a council in relation to a public road."
[596]See Archbold Criminal Pleading, Evidence and Practice, (1994), vol 2, par 31-40.
[597]See Goldman v Hargrave [1967] 1 AC 645 at 657 per Lord Wilberforce.
Section 17 of the State Roads Act used the word "immunities" also. It is highly likely that the legislature in using the word was not only using it in the same sense as the courts frequently have, as a synonym for a defence of non-feasance, but also, and of more importance, as making a very deliberate decision not to respond to the criticism of the rule of no liability for non-feasance on the part of road authorities, by abolishing or amending it. Indeed the enactment may be taken as a very strong affirmation of it.
It remains to deal with the applicants' alternative case that this was a case of misfeasance and properly so found by the primary judge.
The applicants' submission was that misfeasance relevantly occurs when a road authority exercises its powers negligently. The applicants submitted that the respondent was guilty of misfeasance and acted negligently in that regard by covering the bridge with new planking in circumstances where the bridge underneath was not safe and carrying out inspections negligently in the sense of not appreciating that the bridge was so rotten underneath in its girders, on the one hand, and, on the other, to take no action by way of signposting or otherwise.
In Buckle Dixon J put the obligations of a road authority in this way[598]:
"But a road authority in doing [works on a roadway] must take due care for the safety of those using the highway and is not protected if it creates dangers which reasonable care and skill could avoid. Because the road is under its control, it necessarily has an opportunity denied to others for causing obstructions and dangers in highways. But when it does so, the road authority is liable, not, I think, under any special measure of duty which belongs to it, but upon ordinary principles."
[598](1936) 57 CLR 259 at 283.
It is in the applicants' formulation and proof of particulars that their misfeasance case runs into difficulty.
I deal first with the contention that it was misfeasance to fail to cover the bridge with new planking. The answer to that is that it was not the planking that failed but, as was accepted on both sides, rather the timber girders because of piping in them which I take to be a loss of body and strength by reason of age. It is certainly likely that from time to time planking was removed and replaced. It is unnecessary, however, to resolve the difference between the primary judge and the Court of Appeal as to the occasions when this occurred by attempting to analyze the documents in evidence as the Court of Appeal did. The girders were not touched, and by replacing planks the respondent did not, to use the language of Dixon J in Buckle[599], undertake active measures of repair to safeguard the applicants from the condition of the girders, and created no dangers in respect of them. On this particular the applicants' case fails at the threshold. There was no misfeasance in relation to the girders, the part of the structure that failed.
[599](1936) 57 CLR 259 at 283.
I turn to the other particular. Of itself an inspection would achieve nothing. Indeed the respondent was aware that there was piping in the girders. The second particular therefore asserts a positive obligation that the respondent did not have. The respondent would only be liable if it had been bound (as it was not) to rectify deteriorating roads and bridges in the shire. It was no more obliged to do that than it was to convert the bridge from one with a capacity of 15 tonnes when constructed to a bridge of a capacity of 22 tonnes which was the weight of the truck.
I would grant the application for special leave to appeal and dismiss the appeal with costs.
Brodie v Singleton Shire Council [2001] HCA 29
L v State of SA [2004] SADC 110
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