Brodie v Singleton Shire Council

Case [2001] HCA 29

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

SCOTT MUNN BRODIE & ANOR   APPLICANTS

AND

SINGLETON SHIRE COUNCIL  RESPONDENT

Brodie v Singleton Shire Council [2001] HCA 29
31 May 2001
S44/1999

ORDER

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 JJ

CATHERINE GHANTOUS   APPLICANT

AND

HAWKESBURY CITY COUNCIL  RESPONDENT

Ghantous v Hawkesbury City Council
31 May 2001
S69/1999

ORDER

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 Council

Negligence – Highways – Injuries…

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AGLC
Brodie v Singleton Shire Council [2001] HCA 29
Case
[2001] HCA 29
Decision Date

CaseChat Overview and Summary

The case of *Brodie v Singleton Shire Council* involved claims brought by Mr. Brodie and his employer against the Singleton Shire Council following the collapse of a bridge. The bridge, designed to carry a maximum load of 15 tonnes, collapsed when a 22-tonne truck driven by Mr. Brodie drove onto it, causing damage to the truck and injuries to Mr. Brodie. The applicants alleged the accident was due to the Council's negligence. The New South Wales Court of Appeal had previously overturned the trial judge's findings in favour of the applicants, holding that the Council's actions, such as replacing decking planks, constituted no more than superficial repairs and thus amounted to non-feasance, which traditionally did not attract liability for highway authorities.

The High Court was required to determine the continued applicability of the "highway rule" in Australian law, which historically distinguished between misfeasance (an act of commission) and non-feasance (an omission) in relation to the liability of highway authorities. Specifically, the Court considered whether the common law should retain the distinction between misfeasance and non-feasance in the context of negligence claims against public authorities responsible for road maintenance, and whether the traditional immunity afforded to highway authorities for non-feasance should be abolished or modified in light of modern principles of negligence and the development of the law in other common law jurisdictions.

The High Court acknowledged that the law in other common law jurisdictions, such as Canada, had moved away from the strict distinction between misfeasance and non-feasance, generally imposing a duty of care on government agencies to maintain highways. The Court noted the unsatisfactory nature of the dichotomy and the unprincipled distinctions it had generated. While the Court considered the arguments for departing from established precedent, it ultimately concluded that it was not appropriate to change the law in the manner proposed by judicial decision in these specific cases.

The High Court granted special leave to appeal but dismissed the appeals. The orders made by the New South Wales Court of Appeal were set aside, and the matters were remitted to that Court for determination of the remaining issues on appeal. The costs of the appeal to the New South Wales Court of Appeal and of the trial were ordered to abide the outcome of that further appeal.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GLEESON CJ HUGH AND GUMMOW JJ CALLINAN J
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, Mc 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.

Ratio Decidendi

Legal Principle Established

Established by: GLEESON CJ, HUGH AND GUMMOW JJ, CALLINAN J

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.