Brodie v Singleton Shire Council

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,Gaudron,McHugh,Gummow JJ,Kirby J,Hayne J,Callinan J
• Judgment Date: 31 May 2001
• Neutral Citation: [2001] HCA 29,2001-0531 HCA A
• Court: High Court
• Docket Number: S44/1999
• Date: 31 May 2001

Scott Munn Brodie & Anor

Applicants

and

Singleton Shire Council

Respondent

Catherine Ghantous

Applicant

and

Hawkesbury City Council

Respondent

[2001] HCA 29

Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ

S44/1999

S69/1999

HIGH COURT OF AUSTRALIA

Brodie v Singleton Shire Council Ghantous v Hawkesbury City Council

Negligence — 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.

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)

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.

1 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.

2 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.

3 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.

4 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

5 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.

6 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.

7 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.’

8 I agree with Callinan J that no case of negligence was made out against the respondent.

9 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

10 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 Board5, 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 Council7. As will appear, the present case is very similar to Gorringe, and is indistinguishable from Kirk.

11 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.

12 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 Committee8. 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.

13 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.

14 The essence of the rule is that a highway...