The long awaited decisions of the High Court in the cases of Brodie & Anor v Singleton Shire Council and Ghantous v Hawkesbury City Council were handed down on Thursday last, 31 May 2001. This is the first time since 1950 that the High Court has been called upon to fully consider and explore the continuing application of the rule of nonfeasance.
In order to understand the decisions, it is necessary to understand the distinction between misfeasance and nonfeasance. In essence, a Council may owe a duty of care to a road user which, if breached, will give rise to liability in damages where the Council has exercised its powers (misfeasance) but cannot be liable in respect of a failure to act (nonfeasance). The primary question for the High Court was whether the law would be better without the rule of nonfeasance and, if so, whether the appropriate way to remove it was by a decision of the Court.
The Court was required to consider the "highway immunity" of nonfeasance.
In summary, Mr Brodie was travelling along a road within the Shire of Singleton, a route which required him to cross two timber bridges. On the approach to the first bridge, there was a load limit sign indicating a maximum load of 16 tonnes gross. The loaded weight of the truck was about 22 tonnes. Mr Brodie gave evidence that he drove safely across the first bridge without looking at, or taking notice of, the sign. The second bridge, known as Forrester's Bridge, partially collapsed whilst the truck was crossing it. The collapse caused injury to Mr Brodie and damage to the truck. The bridge had been in place for at least 50 years and there was no suggestion that it had been negligently designed or constructed. The bridge was supported by girders, which had deteriorated as a result either of dry rot or white ants. No repairs to the girders had been carried out.
Whilst there was no sign indicating a load limit for the bridge, expert evidence was given that in its state at that time, the load limit should have been between 9.3 and 13.5 tonnes. The Council produced evidence that all timber bridges within its area were usually inspected about four times per year. The bridge had been graded by the Council as "being in moderately poor condition."
In the trial at first instance, the judge found that he was bound by the rule of nonfeasance. However, he considered that the replacement of some timber planks from time to time by the Council was sufficient to bring the case within the rule of misfeasance and made a substantial award of damages against the Council.
The Court of Appeal (NSW) reversed the decision of the trial judge at first instance upon the basis that the real cause of complaint, if any, was failure to inspect and repair the girders. Accordingly, the matter fell within the rule of nonfeasance.
In the High Court, the matter was considered by a full bench of seven judges. Chief Justice Gleeson took the view that the nonfeasance rule is a rule about the accountability of a public authority invested by Parliament with the responsibility of applying funds to the construction, maintenance and improvement of public roads. The common law approach is that such an issue is to be determined by the will of Parliament as expressed in legislation, and not by the Court. That is, it is the responsibility of each State Parliament to decide whether the rule should be replaced and, if so, what it should be replaced with. Upon this basis, the Chief Justice concluded that the appeal should be dismissed. In this approach to upholding the principle of nonfeasance, the Chief Justice was supported by Justices Hayne and Callinan.
However, the majority of the Court – Justices Gaudron, McHugh, Gummow and Kirby – determined to the contrary and allowed the appeal with costs, and set aside the orders of the Court of Appeal. Accordingly, with the majority of the High Court determining to allow the appeal, the matter was remitted to the Court of Appeal for determination of the remaining issues upon the basis that the rule of nonfeasance no longer provides protection for the Council in its role as a highway authority.
In the joint judgment of Justices Gaudron, McHugh and Gummow, the following reasons were given for the removal of the nonfeasance rule –
"First, the rule operates capriciously and denies equal protection of the law by barring absolutely a remedy to victims of the negligent omissions of a highway authority … Moreover, … limitation of funds affords no answer by the defendant.
Secondly, a result of the growth of the misfeasance rule … is that an authority will escape liability if it has never attempted to repair some danger on a road or bridge but thereafter may become liable if it attempts, even perfunctorily, to repair it. …
The abolition of the "immunity" would not move the law from the extreme of non-liability to the other extreme of liability in all cases. There would not be imposed a duty which can be discharged only by repairing roads to bring them to a perfect state of repair. The opposite of "non repair" is not "perfect repair".…"
The essence of the reasons adopted by the majority of the Court is that in cases such as the Brodie case, the issue of liability does not and should not turn upon the application of an "immunity" provided by the "highway rule". The previous High Court decisions in 1936 (Buckle v Bayswater Road Board) and 1950 (Gorringe v The Transport Commission (Tas) which upheld the rule of nonfeasance, should no longer be followed. The majority judges held the view that such matters should be considered under the law of negligence which supplies the appropriate criteria to determine liability. That is, an assessment should be undertaken in each case upon the basis of whether there is a duty of care owed and whether there has been a breach of that duty sufficient to give rise to liability in negligence.
This case considered both rules of nonfeasance and misfeasance. Mrs Ghantous tripped and fell while walking along a concrete path. Since the original construction of the footpath, which was not shown to have been negligent in any respect, erosion had resulted in subsidence so that in some places the verge was about 50 mm below the concrete. Mrs Ghantous tripped and suffered injuries.
Mrs Ghantous failed in her claim at both first instance and in the Court of Appeal. The High Court was unanimous in its decision to dismiss her appeal.
The Council admitted that it had responsibility for care, control and maintenance of the footpath and adjacent guttering. The Court, agreed that there was no breach of duty by the Council, either in the construction of the footpath or in the failure to keep the concrete and verges level. Callinan J concluded that there was no failure in that regard because the footpath was not unsafe for a person taking ordinary care. This conclusion meant that, putting the "immunity" to one side, the Council neither created nor negligently confirmed a nuisance.
The legal question that the Court considered was whether the Council owed a duty to Mrs Ghantous to make the footpath safe, on the assumption, that it was unsafe at the relevant time. The Court found, however, that this was a case of deterioration over time of works which were originally properly designed and executed. The Council had not undertaken any works to alleviate what Mrs Ghantous saw as the danger. Given that the Court was not minded to uphold the rule of nonfeasance, the claim by Mrs Ghantous was considered under the principles of negligence. It was upon this basis and the facts in question that the Court determine that there was no liability on the part of the Council.
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