Brodie v Singleton Shire Council
(2001) 206 CLR 512[2001] HCA 29
(2001) 75 ALJR 992
(2001) 180 ALR 145
[2001] Aust Torts Reports 81-607
(2001) 114 LGERA 235
(2001) 33 MVR 289
(Judgment by: Gleeson CJ)
Between: Scott Munn Brodie and Anor - Applicants
And: Singleton Shire Council - Respondent
Between: Catherine Ghantous - Applicant
And: Hawkesbury City Council - Respondent
Judges:
Gleeson CJGaudron J
McHugh J
Gummow J
Kirby J
Hayne J
Callinan J
Subject References:
NEGLIGENCE
HIGHWAYS
Injuries to user of highway
Liability of highway authority
Whether immunity under the 'highway rule'
Distinction between misfeasance and non-feasance
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
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
highway rule
immunity
Legislative References:
Local Government Act 1919 (NSW) - ss 220-277B
Judgment date: 31 May 2001
Judgment by:
Gleeson CJ
1. 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 [F1] . 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 [F2] . 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 [F3] . 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 [F4] :
"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 Board [F5] , in 1936, and Gorringe v The Transport Commission (Tas) [F6] , in 1950. Gorringe was followed by the Full Court of the Supreme Court of New South Wales in Kirk v Culcairn Shire Council [F7] . 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 Committee [F8] . 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 construc t, 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" [F9] .
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 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.
15. One of the rule's most forceful critics, Professor Fleming, explained it in this way [F10] :
"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."
16. 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 [F11] . 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 [F12] , 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.
17. 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?
18. 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 [F13] . After all, a road is itself an artefact. So, even more obviously, is a bridge [F14] .
19. The question for decision is what is the appropriate judicial response to such criticisms.
20. 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.
21. In Gorringe, Dixon J referred to "the principle upon which provisions imposing upon highway authorities a duty of repair have been construed". He said [F15] :
"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."
22. 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 [F16] . 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.
23. In the earlier case of Buckle, Dixon J explained the rationale underlying the principle of statutory construction. He said [F17] :
"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."
24. 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
25. 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.
26. 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.
27. 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) [F18] . 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.
28. In the Court of Appeal [F19] , 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.
29. 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.
30. 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
31. 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.
32. 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 [F20] . In some Australian jurisdictions, there is now legislation limiting the damages which may be recovered in transport accidents [F21] .
33. 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.
34. 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 [F22] :
"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 [F23] . Fullagar J referred to a line of English cases as establishing two principles of law. He said [F24] :
"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."
35. The decision in Gorringe was followed by the Full Court of the Supreme Court of New South Wales in Kirk [F25] . 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.
36. 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 [F26] , 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."
37. 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.
38. In Bropho v Western Australia [F27] , 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 [F28] . It also pointed out that a judge-made rule of construction may be supplemented by legislative provision [F29] . 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.
39. In State Government Insurance Commission v Trigwell [F30] 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 [F31] :
"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."
40. His Honour went on to say [F32] :
"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."
41. Finally, he added [F33] :
"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."
42. 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.
43. 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
44. 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 [F34] . 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 [F35] , that the duty of care owed by highway authorities should be left to be determined by general common law principles [F36] , but that claims against such authorities should be brought within the scheme of the Transport Accidents Compensation Act 1987 (NSW) [F37] . 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 [F38] .
45. The New South Wales Parliament did not act on the recommendations. On the contrary, in 1993 it enacted s 65 of the Roads Act.
46. 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.
47. These are additional reasons for concluding that it is not appropriate to change the law in the manner proposed by judicial decision.
Conclusion
48. In the matter of Brodie there should be a grant of special leave to appeal but the appeal should be dismissed.
Orders
49. In each matter, special leave to appeal should be granted but the appeal should be dismissed with costs.