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
(Decision by: Gaudron J, McHugh J, Gummow J)
Between: Scott Munn Brodie and Anor - Applicants
And: Singleton Shire Council - Respondent
Between: Catherine Ghantous - Applicant
And: Hawkesbury City Council - Respondent
Judges:
Gleeson CJ
Gaudron J
McHugh J
Gummow JKirby 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
Decision by:
Gaudron J
McHugh J
Gummow J
A. Introduction
50. 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.
51. 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 [F39] . 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) [F40] .
52. 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.
53. 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 [F41] and Gorringe v The Transport Commission (Tas) [F42] . 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.
54. However, the later decision of this Court in Webb v The State of South Australia [F43] 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 [F44] :
"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 [F45] :'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 ...' [F46] .
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 [F47] . 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.
55. 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.
56. The significant question that remains in these cases is a different one. As Doyle CJ pointed out in Calvaresi v Beare [F48] , with reference to Crimmins v Stevedoring Industry Finance Committee [F49] , 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?
57. 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 [F50] :
"[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 [F51] , 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".
58. 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 [F52] . 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.
59. In Hughes v Hunters Hill Municipal Council [F53] , 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.
60. Mahoney AP continued by stating, in a passage with which we would agree [F54] :
"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 [F55] , 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 [F56] , the courts recognised the possible liability of a council in negligence for failing to exercise a statutory right of inspection of building works".
61. 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
62. 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") [F57] . 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.
63. 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".
64. The State Roads Act 1986 (NSW) ("the RTA Act") [F58] 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 [F59] . For other classified roads, agreements between the RTA and the relevant council might divide or allot the carrying out of this work [F60] . 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
65. 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 [F61] . 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 [F62] 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.
66. In numerous later decisions in State and Territory courts [F63] , 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.
67. 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 [F64] . However, the cases develop exceptions and qualifications which so favour plaintiffs as almost to engulf the primary operation of the "immunity" [F65] . The interests of public authorities cannot fairly be served by maintaining an "immunity" which functions so poorly.
68. 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 [F66] disables the courts of common law, and in particular this Court, from seeking to cure this infirmity by the application of principle.
69. 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" [F67] . 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.
70. 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 [F68] 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 [F69] . 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.
71. 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.
72. 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 [F70] . 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 [F71] :
"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 [F72] . 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 [F73] . 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 [F74] . In 1950 Fullagar J described the position reached in regard to the immunity of highway authorities as 'very curious' [F75] . 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 [F76] 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 [F77] .
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 [F78] 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".
73. Evidence was led in McLenaghan as to the financial resources of the Gloucester Shire Council; of its significance Priestley JA said [F79] :
"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
74. 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
75. 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 [F80] 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 [F81] , Brown v British Columbia (Minister of Transportation and Highways) [F82] and Swinamer v Nova Scotia (Attorney General) [F83] . 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 [F84] . 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 [F85] .
76. 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" [F86] . Most jurisdictions accept that the construction and maintenance of streets and public ways is not within the immunity [F87] . 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."
77. 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 [F88] . However, for the time being, it appears that no New Zealand court has specifically rejected the "immunity" [F89] .
78. 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 [F90] . 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 [F91] . 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 [F92] . Yet the floodgates do not appear to have collapsed.
(ii) Unprincipled distinctions
79. 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.
80. 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 [F93] . But, the cases present a wilderness of single instances because they turn upon what have long been seen as "disputable judicial escape mechanism[s]" [F94] which require the drawing of distinctions not the application of principle.
81. 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 [F95] and the defendant cannot be said to have adopted and continued a nuisance [F96] . What can be said in favour of such a state of affairs?
82. 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 [F97] , 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 [F98] . 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" [F99] .
83. 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) [F100] . It requires decisions as to when a structure will form "part of the road" [F101] , 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
84. In Gorringe [F102] , Fullagar J referred to the view of Sir Harrison Moore [F103] 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 [F104] . Sir Harrison Moore had also pointed to the basic issue which re-emerges in the present litigation, saying [F105] :
"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 [F106] , 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 [F107] .
85. 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 [F108] ) 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 [F109] , 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" [F110] ? 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" [F111] . The issue in Hargrave v Goldman [F112] , 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) [F113] 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) [F114] . 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 [F115] .
86. The persistence of the categories of "misfeasance" and "non-feasance" as part of the "highway rule" continues to give rise to illusory distinctions. This particularly is so respecting the legal consequences of repair or maintenance work. Distinctions are drawn apparently to favour plaintiffs by releasing them from the constriction of the "highway rule" on the footing that they have shown misfeasance rather than non-feasance. It has been said that the misfeasance doctrine applies only where the authority is an active agent in creating or adding to an unnecessary danger [F116] . But an authority may leave itself open to a finding of misfeasance if it takes any positive action in respect of a road, even if that action is an attempt to remove a danger already existing; that is, if the authority did not leave the road alone [F117] . The cases contain statements to the effect that repair work which negligently fails to deal with the danger in question (being one causing injury to the plaintiff) constitutes misfeasance [F118] . Equally, it has been held that negligent repair work which caused to recur more quickly than ordinarily the danger that resulted in the plaintiff's injuries, will amount to misfeasance [F119] . Yet failure to attempt such repairs would be non-feasance and the plaintiff's action would fall foul of the "highway rule".
87. Moreover, an authority will be responsible for the consequences of new work. In Woollahra Council v Moody, Barton ACJ said [F120] :
"If the authority having the care and maintenance of a road undertakes new work such as this kerbing and guttering, and in carrying out that work leaves a place immediately adjoining in such a condition that the natural and necessary consequence is that the place becomes dangerous, then it is clear to me that there is a misfeasance, and not a mere non-feasance; and if damage results by reason of that misfeasance, I think the authority is responsible."
This would seem to apply a fortiori where "the natural and necessary consequence" of doing work negligently was to leave the part worked upon, and not a portion of road next to it, dangerous [F121] . Similarly, where repairs are done in such a way as to continue a dangerous situation in which the plaintiff was injured, the repair work has been held to be misfeasance. This is on the ground that "[a]ctively to maintain a dangerous situation can be as negligent as its original creation" [F122] . The true complaint may have been that, in undertaking superficial repairs, an authority did not address the underlying defects in the road - such as poor drainage - which created the source of danger to the plaintiff which resulted in the injury [F123] .
88. Likewise, there may be misfeasance if the authority has created a false sense as to the security or safety of a road. The authority may have thrown open an unsafe road for use as a safe road [F124] ; its work may have created or maintained a "trap" by creating an appearance of safety, or at least of uniformity, across its surface, which could readily mislead [F125] ; or its work may have created a new danger or added to the danger [F126] by making an unfenced hole [F127] .
89. In some of these cases, the so-called "misfeasance" appears to consist of omissions to take certain steps while carrying out some positive actions. Indeed, on such a reading, anything done which "has in fact increased the risk of accidents" will be misfeasance [F128] , even where that risk has been increased solely by omissions to act. This is so although in Gorringe Dixon J sought to introduce a criterion of "severability" between what was done and what was left undone [F129] . Here, the true determinant seems not to be non-feasance contrasted with misfeasance, but the presence or absence of positive action: if the authority has taken some steps, then its actions are to be examined using the ordinary principles of negligence.
90. Other cases, of which the decision of this Court, shortly after Buckle, in Dundas v Canterbury Municipal Council [No 2] [F130] is an example, suggest that certain anterior activity involving road design and construction requires special consideration. It appears that an authority will be liable if a roadway is negligently designed or built so that it is dangerous to those using it [F131] , unless there is adequate warning (such as by signage) of the dangers [F132] .
(iv) Immunity
91. Another consideration to which the "highway rule" gives rise concerns the classification of the legal position of the public authorities as the enjoyment of an "immunity". In Buckle itself, Dixon J spoke of road authorities as having an "immunity from liability for damage arising from [their] failure to uphold, maintain and repair" [F133] .
92. It will be observed that Dixon J did not describe the liability of road authorities as "non-justiciable". In Australia, that term and cognate expressions have been used to describe controversies within or concerning the operations of one of the other branches of government which cannot be resolved by the exercise of the judicial power. Examples are the exercise by the Governors of the States of their function under s 12 of the Constitution [F134] , certain aspects of the conduct by the Executive Government of foreign relations [F135] and intergovernment arrangements falling short of contract [F136] . The differences of opinion in Sue v Hill [F137] respecting the exercise by this Court of jurisdiction as the Court of Disputed Returns exemplify the fundamental and difficult issues which are wrapped up in the term "non-justiciable".
93. The term "immunity" may be used in a related sense to identify a liability or remedy which, in England, did not arise or was not available against the Executive Government, identified as "the Crown"; hence the common law principle of immunity of the Crown from actions in tort and what is now known as the "public interest immunity" against discovery of documents. The public and local authorities set up by statute in England in the nineteenth century did not enjoy that Crown immunity. For example, in The Mersey Docks Trustees v Gibbs [F138] , the Board was liable for the damage occasioned to the plaintiff's ship by a mudbank which blocked the entrance to a dock. Different questions would arise when the authority contended that its statute sufficiently identified it with the Executive Government to bring it within the umbrella of Crown immunity.
94. The term "immunity" also is used in various areas of the law to indicate an immunity to action in respect of rights and duties which otherwise exist in the law. One example is the common law immunity of the Crown to actions for breaches of its contracts; the common law accepted that a contract had been made and a legal wrong committed [F139] . The immunity of the barrister, upheld in Giannarelli v Wraith [F140] , assumes, as Mason CJ explained [F141] , an obligation to exercise reasonable care and skill but sustains the immunity on considerations of public policy. Again, the common law rule which confers a "qualified immunity" from liability in respect of straying animals is an "exception to the ordinary principles of negligence" and, where it operates, "negates the existence of a duty of care" [F142] . In recent decisions of the House of Lords respecting the liability in negligence of public authorities, the terms "immunity" and "non-justiciable" have been used, apparently interchangeably, and in the sense of negation of the existence of a duty of care. Examples are found in several of the speeches in Barrett v Enfield London Borough Council [F143] .
95. This appears to be the sense in which Dixon J spoke of "immunity" in Buckle. It follows that to determine that the legal basis for this immunity is derived from English origins which furnish no reason for its continuance in Australia is not to cast adrift the Australian common law with nothing in the place of what has been left behind; rather, it is to allow the principles of the law of negligence respecting public authorities to operate freed from this artificial constriction.
96. The point may be illustrated as follows. If, before setting off on the journey which took the first applicant in Brodie to the bridge which collapsed, he had contacted the Singleton Shire Council and in response to his inquiry had been told by a Shire officer that the bridge was safe for a truck weighing 22 tonnes, the principles of negligent misstatement, developed over the past 40 years, would have applied. Subject to any particular statutory exemption clause [F144] , what would have been decisive was not the Buckle immunity, but the reasoning in authorities such as Shaddock & Associates Pty Ltd v Parramatta City Council [No 1] [F145] .
97. Statutory provisions which permit public authorities to engage in what otherwise would be tortious or otherwise legally wrongful conduct are disfavoured; they are "strictly", even "jealously", construed [F146] . So also, surely, what are said to be immunities of this nature provided by the common law itself. In that vein, Lord Cooke of Thorndon recently observed [F147] :
"Absolute immunity is in principle inconsistent with the rule of law but in a few, strictly limited, categories of cases it has to be granted for practical reasons. It is granted grudgingly, the standard formulation of the test for inclusion of a case in any of the categories being Sir Thaddeus McCarthy P's proposition in Rees v Sinclair [F148] , 'The protection should not be given any wider application than is absolutely necessary in the interests of the administration of justice ...' Many other authorities contain language to similar effect."
98. It has been well said that the immunity conferred by the "highway rule" has the following features [F149] :
"First, being absolute, it can produce harsh results. Secondly, it has become increasingly anomalous, against the background of the general law of negligence under which bases for liability have expanded rather than decreased. Thirdly, well-meant efforts to contain or avoid the harsh results of the immunity have led to highly technical and difficult distinctions being drawn, which in turn have had the effect of increasing litigation, and uncertainty and unpredictability of outcome."
99. Are there sufficient reasons of public policy for denial of a remedy against the respondent Councils, if an action otherwise lies against them in negligence? This invites attention to the purposes now served by the "immunity". These purposes plainly are not those served in England in ages past. Even in England those purposes changed over time. When Russell v The Men of Devon [F150] was decided in 1788, there were no highway authorities as later became understood in Australia. The inhabitants of a parish were a fluctuating body of private individuals [F151] , the membership of which was unlikely to correspond at the times of incurrence and discharge of liability, and the common law did not provide for contributions between those concurrently liable [F152] . Moreover, the "highways" spoken of in 1788 today would hardly answer that description. The deficiencies of the English road system had been a common refrain in the recitals of various highway acts. They used terms such as "very dangerous", "ruinous" and "almost impassable" [F153] . Section 6 of The Highway Act 1835 (UK) [F154] required the parish to appoint a surveyor who was to "repair and keep in repair" the highways in the parish. However, the surveyor "was the agent of the inhabitants at large" and "was not liable on indictment or in damages" [F155] .
100. The notions which had underpinned this old law respecting parishes were, without apparent re-articulation by the courts, treated as "transferred" to the new statutory regimes established in England in the mid-nineteenth century. The liability of corporate public authorities was classified as only a transferred liability, not a liability created by statute [F156] . In this period, there developed both the approach to statutory construction which determined the existence of an action for breach of statutory duty and a judicial attitude protective of the funds of public utilities providing the infrastructure for an industrialised society. It would now appear that in 1895 Lord Herschell LC put too narrowly the scope of the common law (particularly by ignoring negligence) in saying [F157] :
"It is admitted that the highway on which the disaster occurred was constructed by the appellants in the first instance quite properly. No complaint of misfeasance is made against them. The sole charge is one of non-feasance: that when the road had fallen into a bad condition, they failed to execute the necessary repairs. If, then, they are liable in the present action, it must be either because that liability has been expressly imposed by some enactment, or because the Legislature has imposed some duty upon them for the breach of which a right of action accrues to any person injured by it."
101. These considerations never applied in this country. The responsibilities of municipal and shire corporations with respect to roads were not transferred to those bodies; they were created by statute. Perhaps for what then was good reason, given the ultimate authority of the Privy Council and the prevailing understanding of a unified common law [F158] , in Buckle the Court kept close to the coastline charted by the English decisions. However, in Australia, a significant issue respects the operation of the principles of liability in negligence in respect of the exercise or failure to exercise statutory powers.
(v) Negligence and statutory powers
102. The decisions of this Court in Sutherland Shire Council v Heyman [F159] , Pyrenees Shire Council v Day [F160] , Romeo v Conservation Commission (NT) [F161] and Crimmins v Stevedoring Industry Finance Committee [F162] are important for this litigation. Whatever may be the general significance today in tort law of the distinction between misfeasance and non-feasance, it has become more clearly understood that, on occasions, the powers vested by statute in a public authority may give it such a significant and special measure of control over the safety of the person or property of citizens as to impose upon the authority a duty of care. This may oblige the particular authority to exercise those powers to avert a danger to safety or to bring the danger to the knowledge of citizens otherwise at hazard from the danger. In this regard, the factor of control is of fundamental importance [F163] .
103. It is often the case that statutory bodies which are alleged to have been negligent because they failed to exercise statutory powers have no control over the source of the risk of harm to those who suffer injury. Authorities having the control of highways are in a different position. They have physical control over the object or structure which is the source of the risk of harm. This places highway authorities in a category apart from other recipients of statutory powers.
104. The postulate that, without the "highway rule" and with the principles of negligence, statutory authorities will be subjected to fresh, indeterminate financial hazards which the common law will ignore should not be accepted. First, as has been pointed out earlier in these reasons, expenditure of public funds on litigation turning upon indeterminate and value-deficient criteria is encouraged, indeed mandated, by the present state of the law. Secondly, financial considerations and budgetary imperatives may fall for consideration with other matters when determining what should have been done to discharge a duty of care [F164] . That is the position in Canadian law [F165] . It is that advocated in this Court a century ago. In Miller v McKeon Griffith CJ said [F166] :
"So the Government of a newly-settled country, which undertakes the first formation of a road, whether the soil has or has not been formally dedicated as a highway, is bound to use such care to avoid danger to persons using it as is reasonable under all the circumstances. These circumstances include the nature of the locality, the extent of the settlement, the probabilities as to the persons by whom the road is likely to be used, and the moneys available to the Government for the purpose".
Each element in these sentences merits careful attention. Evidence respecting funding constraints and competing priorities will be admissible [F167] .
105. The public resources in question are, as indicated earlier in these reasons, provided in part by government grants; the prospect of irate ratepayers left to shoulder the apprehended increased burden is conjectural. Further, it is implicit in the submissions for the interveners that highway authorities carry insurance in respect of their liability for misfeasance and other acts or omissions falling outside the "highway rule". The Attorney-General for Victoria submitted that it should not be assumed that road authorities would be able through insurance to "transfer ... the financial burden of increased exposure to claims for compensation if their immunity for non-feasance is removed". Nor should it be assumed that they will be unable to do so.
106. Appeals also were made to preserve the "political choice" in matters involving shifts in "resource allocation". However, citizens, corporations, governments and public authorities generally are obliged to order their affairs so as to meet the requirements of the rule of law in Australian civil society. Thus, it is no answer to a claim in tort against the Commonwealth under s 75(iii) of the Constitution that its wrongful acts or omissions were the product of a "policy decision" taken by the Executive Government; still less that the action is "non-justiciable" because a verdict against the Commonwealth will be adverse to that "policy decision". Local authorities are in no preferred position. Yet it is submitted that those bodies which answer the description "highway authority", distilled from the case law, merit and require a special consideration which only statute may displace. That submission should be rejected.
(vi) Precedent
107. Where, as we have endeavoured to show is the position in Australia with the "highway rule", the case law speaks in terms which can "no longer command an intellectual assent", should this Court acquiesce and refuse to act by reference "directly to basal principle" [F168] ? If the continuation of that state of affairs, which discredits the Australian legal system, be mandated by precedent, then it is the task of this Court to look into the authorities said to constitute that precedent.
108. This leads to the invocation, particularly by the Singleton Shire Council, of the importance for the legal system of the system of precedent. The Shire Council refers to the well-known statement of Mason J in State Government Insurance Commission v Trigwell that this Court "is neither a legislature nor a law reform agency" [F169] . That may readily be accepted. However, the present state of the cases respecting the "highway rule" neither promotes the predictability of judicial decision nor facilitates the giving of advice to settle or avoid litigation. Observations by McHugh J in Perre v Apand Pty Ltd [F170] are in point. Speaking of the area of judge-made law, and in a court of final appeal, his Honour remarked [F171] :
"While stare decisis is a sound policy because it promotes predictability of judicial decision and facilitates the giving of advice, it should not always trump the need for desirable change in the law [F172] . In developing the common law, judges must necessarily look to the present and to the future as well as to the past."
Here, the reasons for that "sound policy" do not apply. Observations by Brennan J in Giannarelli v Wraith [F173] also are apposite. His Honour said [F174] :
"A court is not ordinarily concerned to apply to the resolution of a current case a proposition of common law plucked from a moment in history, though the court will often refer to the history of the common law in ascertaining a principle for contemporary application. In declaring and applying the common law to a current case, a court is bound by earlier decisions of courts above it in the hierarchy, for those decisions state what that court is bound to take the common law to be. But when the court is not so bound, it may undertake its own inquiry into the common law and it may depart from earlier decisions. The doctrine of stare decisis requires no greater adherence to precedent, though curial policy may lead a court to adhere to earlier authority which is merely persuasive."
109. In addition, as it happens, neither Buckle nor Gorringe is a strong candidate in support of the system of stare decisis. The same was true of Grant v Downs [F175] , as was disclosed by the analysis in Esso Australia Resources Ltd v Federal Commissioner of Taxation [F176] and by the application of the criteria which may justify review by this Court of an earlier decision. Those criteria were discussed in the joint judgment in John v Federal Commissioner of Taxation [F177] .
110. First, Buckle cannot be said to "rest upon a principle carefully worked out in a significant succession of cases" [F178] . The judgments in Buckle ignore the earlier decision of the Court in Miller v McKeon [F179] . There, the submission had been made that it was the duty of the New South Wales Government which had constructed and dedicated the road in question to make it reasonably safe for all such as were likely to use it and to keep it safe; counsel relied upon the judgment of Brett MR in Heaven v Pender [F180] . This, as Fullagar J later remarked [F181] , was a period in which the law of negligence was undergoing considerable development. The judgment of the Master of the Rolls in Heaven v Pender "constituted the first step in the perception of a coherent jurisprudence of common law negligence" [F182] ; it went on to provide a significant element in the reasoning of Lord Atkin in Donoghue v Stevenson [F183] and was "taken up" by Lord Atkin in formulating the general duty in that case [F184] . The result was described in Burnie Port Authority v General Jones Pty Ltd [F185] as being the "emergence of a coherent law of negligence to dominate the territory of tortious liability for unintentional injury to the person or property of another".
111. Griffith CJ said in Miller v McKeon [F186] that the circumstances in which an action will lie had been "well defined" by the Master of the Rolls in Heaven v Pender; the question was what was involved in reasonable care and skill in Australian circumstances. In 1915, in Flukes v Paddington Municipal Council [F187] , a decision of the New South Wales Full Court, to which Miller v McKeon was cited, Street J [F188] and Ferguson J [F189] held that a municipal authority, in making an alteration to the existing condition of a thoroughfare, was obliged to exercise such care to avoid danger to persons using it as was reasonable in the circumstances. However, Buckle has been taken as silently choking the development of the common law in Australia which began with these earlier authorities.
112. There are further considerations respecting the value of Buckle and Gorringe as precedents. There was a difference between the reasons of the Justices constituting the majority in Buckle. Latham CJ and Dixon J took similar views of the legal principles at stake. In particular, there was the need to determine whether the Road Board had constructed the drain in exercise of its powers as a drainage authority or a highway authority; if the former, the "highway rule" did not defeat the plaintiff. However, their Honours differed in the result, Dixon J favouring the application of the "highway rule" to the facts of the case. The third member of the Court, McTiernan J, relied solely upon the "artificial structure" distinction, but agreed with Latham CJ as to the outcome. This was that the appeal by the plaintiff from a decision of a judge of the Supreme Court of Western Australia be allowed, with Dixon J dissenting. A binding authority cannot be extracted from an opinion expressed in a dissenting judgment [F190] . Hence the statement by Sir George Paton and Professor Sawer [F191] that, if the dissenting judgment be ignored, Buckle lacks a ratio decidendi respecting the "highway rule".
113. Thereafter, in Gorringe, the plaintiff accepted that Buckle established "the general proposition that a highway authority is not liable for mere non-feasance but is liable for misfeasance or malfeasance" [F192] . But, rather than challenge Buckle, the plaintiff in Gorringe sought to side-step it. He did so by putting his case on the particular ground that s 8(2) of the Roads and Jetties Act 1935 (Tas) "imposes a duty to maintain State highways with a correlative right in a person injured by a defect in the highway to complain of the failure in the duty" [F193] . The plaintiff thus relied upon the action for damages for breach of statutory duty. This action had succeeded with respect to other statutes in the earlier decisions in this Court in Municipal Tramways Trust v Stephens [F194] and South Australian Railways Commissioner v Barnes [F195] .
114. Moreover, as appears from the matters already discussed in these reasons under the headings "Unprincipled distinctions" and "Misfeasance and non-feasance", there are unacceptable difficulties and uncertainties about the content of the "highway rule". In turn, these are the product of reluctance of the Australian courts in recent times to apply that "rule" to the exclusion of the ordinary principles dealing with negligence. This state of affairs has some affinity to that identified in Burnie Port Authority v General Jones Pty Ltd [F196] respecting the rule in Rylands v Fletcher [F197] . It demonstrates that, rather than achieving a useful result, Buckle has "led to considerable inconvenience", the third of the considerations favouring review which were listed in John v Federal Commissioner of Taxation [F198] .
115. Finally, the reasoning upon which the judgments of Latham CJ and Dixon J in Buckle appear to rest is outflanked by a fuller understanding of the relationship between nuisance and negligence. To this matter we now turn.
(vii) Nuisance and negligence
116. The roots of the reasoning of Latham CJ and Dixon J in Buckle lay in the association between nuisance and the criminal law, and in the blending of principles respecting what now are seen as nuisance, negligence and breach of statutory duty. The decision which often is referred to as indicating that in England at common law no persons were subjected to any enforceable duty to repair or to keep in repair any highway, even persons with the management and control of a highway, is Russell v The Men of Devon [F199] ; but, as Fullagar J indicated in Gorringe [F200] , the earlier decision had turned upon the absence of a proper defendant.
117. The common law duty to maintain the highways in the parish was based in nuisance not negligence [F201] . The duty was enforceable by indictment but a fine was not the only remedy. Writs of distraint might be "awarded in infinitum, till we are certified [by the sheriff] that the way is repaired" [F202] . Further, long before Russell v The Men of Devon, Vaughan CJ, in the course of his lengthy judgment in Thomas v Sorrell, said [F203] :
"And note, if a man have particular damage by a foundrous [F204] way, he is generally without remedy, though the nusance is to be punisht by the King. The reason is,
Because a foundrous way, a decay'd bridge, or the like, are commonly to be repaired by some township, vill, hamlet, or a county who are not corporate, and therefore no action lyes against them for a particular damage, but their neglects are to be presented, and they punish'd by fine to the King.
But if a particular person, or body corporate, be to repair a certain high-way, or portion of it, or a bridge, and a man is endamaged particularly by the foundrousness of the way, or decay of the bridge, he may have his action against the person or body corporate, who ought to repair for his damage, because he can bring his action against them; but where there is no person against whom to bring his action, it is as if a man be damaged by one that cannot be known."
118. The propositions in this last paragraph indicate what later became the settled law that a plaintiff sustaining particular or special loss or damage may recover damages in respect of a public nuisance, and, as affirmed in Boyce v Paddington Borough Council [F205] , may have sufficient interest to support a suit for equitable relief [F206] . The adaptation of this reasoning to the broader field of equitable intervention in public law matters was described in Bateman's Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd [F207] .
119. At common law, explained Windeyer J, "a highway was created when a competent landowner manifested an intention to dedicate land as a public road, and there was an acceptance by the public of the proffered dedication" [F208] ; a highway was a thoroughfare leading from town to town or village to village, but it became identified, again as Windeyer J put it [F209] , as "a way over which all members of the public are entitled to pass and repass on their lawful occasions". The tort of nuisance included unlawful interference with a right over or in connection with land, and interference with the safe enjoyment of the public right of way over a highway might constitute an actionable nuisance [F210] . In Australia, the vesting by statute in local government authorities of the fee simple in land over which there are public streets leaves the streets dedicated to the public [F211] . The authorities hold the fee simple "subject to the rights of the public to use the street for passing and re-passing, except in so far as those rights may be taken away or limited by statute" [F212] .
120. This notion of a public right of user as an entitlement conferred by the common law marked off highway authorities from occupiers of private land and rendered inapt any analogy which treated users of the highway as entrants to whom there was owed a duty of care formulated on that basis. Dixon J emphasised this in Buckle [F213] , saying that the principles upon which the liability of the road authority depended had "nothing to do with the ownership or occupation of property or the relation between an owner or occupier and persons whose presence he may solicit or suffer". It will be necessary to return to this matter when considering the preferred formulation of the duty of care in highway cases.
121. The public right of user of highways also presented conceptual difficulty in the extension of the tort of nuisance from its original operation to protect the interests in liberty to exercise rights over land to the vindication of the interest of bodily security by recovery of damages for personal injury. In what Neasey J described in 1966 [F214] as a well-known article, Professor Newark had explained the process of transition [F215] . He wrote [F216] :
"Nuisance ... lay not only for interference with what have been called natural rights incidental to the occupation of land but also for interference with easements; and in early law the easement most usually affected was the right of way. Interference with a private right of way over another's tenement was undoubtedly nuisance. Interference with the public's right of way along a highway was something different: it was a purpresture, an unlawful encroachment against the king, and enquirable of by the king's justices. But men were satisfied by the superficial resemblance between the blocking of a private way and the blocking of a public highway to term the latter a nuisance as well, and thus was born the public nuisance, that wide term which came to include obstructed highways, lotteries, unlicensed stage-plays, common scolds, and a host of other rag ends of the law."
122. The maintenance of actions for personal injuries caused by an obstruction in the highway began early in the nineteenth century with a series of decisions where the plaintiff's declaration was framed as an action on the case for negligence [F217] . However, by the mid-nineteenth century, declarations more closely resembled those used in an action for public nuisance and the term "nuisance" began to appear in judgments [F218] . The reasons for the change are not readily apparent. However, it may be significant that, as Denning LJ put it [F219] :
"[i]n an action for a public nuisance, once the nuisance is proved and the defendant is shown to have caused it, then the legal burden is shifted on to the defendant to justify or excuse himself. If he fails to do so, he is held liable, whereas in an action for negligence the legal burden in most cases remains throughout on the plaintiff."
Thus, availability of the action in nuisance as a remedy for personal injuries was accurately described by Professor Fleming as "a relatively modern development" [F220] .
123. To Fullagar J in Gorringe, the proper sense of "negligence" is to identify a failure to observe reasonable care; there is "actionable negligence" only if there be "a legal duty to take reasonable care" [F221] . However, the term "negligence" may be used other than to identify an independent tort. In the sense of inadvertence or carelessness with respect to an act or omission, "negligence" may identify a mode of committing another tort which does not require intentional wrongdoing. Hence the statement by Beven [F222] that his work was concerned with an aspect, not a division, of law, and with "defaults in conduct" rather than "any particular class of legal relations".
124. Buckle was decided at a time when the tort of negligence had not been extricated from that of nuisance. In Buckle, Latham CJ observed [F223] :
"There can be no doubt in this case that the hole in the drain was a nuisance in the highway and that, if there was a duty to repair, there was a negligent failure to perform that duty."
Dixon J said [F224] :
"To speak of the resulting state of the road as a nuisance in the highway may be correct enough. There is, of course, always a risk in applying the word to the physical thing instead of to the act or omission constituting the wrong of nuisance. But, apart from that, the question is not whether a nuisance has been caused. A highway authority might be indictable for a nuisance arising from its failure to repair. But it was not liable for the particular damage which an individual suffered from the indictable nuisance. When the highway authority acts in that capacity the question is whether, by the negligent exercise of its statutory powers or otherwise without statutory justification, it has been the active agency in causing the nuisance."
Earlier, O'Connor J indicated the entanglement of nuisance and negligence in the law as then understood in the following passage from his judgment in Miller v McKeon [F225] :
"The plaintiff rests his case upon two grounds, nuisance and negligence. In my view they come to the same thing. The mere construction of a work by the Government upon a public road is not in itself a nuisance, if it is for the more convenient exercise by the public of their right of passage over the road, and if the work is carried out without negligence. If there is any negligence the work is a nuisance, if there is no negligence, there is no nuisance. From whichever point of view we regard the matter the question for determination is the same, namely, is there any evidence that the Government has been guilty of negligence. I propose, therefore, to deal with that question only."
125. Ten years before Buckle, Sir Percy Winfield, in his important article "The History of Negligence in the Law of Torts" [F226] , traced the development of negligence as an independent tort. He observed that, even in 1926, distinguished writers [F227] denied the existence of negligence as a distinct tort, and continued [F228] :
"Then, as to nuisance, it might be said until quite recently that there was a hybrid action of nuisance and negligence. Sometimes it looks as if negligence were the substance of the action, and nuisance were an untechnical term; sometimes the exact reverse would be the truth, and then, again, 'negligent' has figured as a persistent term in the declaration which the Court persistently ignored in deciding on grounds of nuisance. Finally, there are judgments that must have gone on one ground or the other, but on which must remain a secret. Nowadays, however, judges show a strong tendency to exorcise this ghost of action upon the case, and to insist that nuisance is one tort and negligence another."
126. Since Buckle was decided, it has become clear, as a result of judgments of Lord Wright, Lord Simonds, Windeyer J, Lord Reid and Lord Wilberforce [F229] , that (a) there are cases where the same facts will establish liability both in nuisance and negligence; (b) the tort of nuisance comprises a wide variety of situations, in some of which negligence plays no part, in others of which it is decisive; and (c) where the public nuisance is one of creating a danger to persons or property on a highway, fault of some kind, which may be negligence, is essential. Nevertheless, whilst the existence of a duty of care and its breach is essential for the tort of negligence, in nuisance this is unnecessary [F230] . As late as 1943, the English Court of Appeal [F231] decided as an action in nuisance a claim for damages brought by the mother of a motor-cyclist killed when his cycle ran into the back of a trailer attached to a stationary lorry which had been left unattended and without rear lights; it was unnecessary, on this basis, to consider the question of negligence.
127. Many contemporary Australian decisions have applied the "highway rule", with its complex of exceptions and reservations, to actions brought not in nuisance but in negligence. It appears to have been assumed that the "highway rule" confers an "immunity" where an action in negligence otherwise would lie. There has been little apparent examination of why this is so, or should be so. In part, the prevailing attitude may reflect a tendency to overlook the circumstance that references to "negligence" in some of the earlier cases were made with respect to "negligence" as a factor in certain nuisance actions. In part, it may represent an unconscious reversion to the state of affairs before actions which previously would have been pleaded in case were presented as actions in public nuisance.
128. Nor, in many instances, have the contemporary Australian decisions respecting the operation of the "highway rule" in negligence actions directed attention to the central question. This did not arise in the treatment in Buckle of the issues in that case. It concerns the circumstances in which, to use the words of Mason J in Sutherland Shire Council v Heyman [F232] , a public authority "may by its conduct place itself in such a position that it attracts a duty of care which calls for exercise of [its statutory] power". One exception is the judgment of Connolly J in Desmond v Mount Isa City Council [F233] where his Honour considered Heyman and Wyong Shire Council v Shirt [F234] . In other cases, it apparently has been assumed that, for some good reason, the "immunity" does not apply, and the litigation has been determined upon application of the general principles of negligence [F235] .
129. The time has now come, by parity with the reasoning in Burnie Port Authority v General Jones Pty Ltd [F236] , to treat public nuisance, in its application to the highway cases, "as absorbed by the principles of ordinary negligence" [F237] . In any event, as has been indicated above, the intrusion of nuisance into this field in the mid-nineteenth century lacked any firm doctrinal basis.
(viii) The immunity and statute
130. Section 32(1A) of the Main Roads Act 1924 (NSW) ("the Main Roads Act") [F238] provided that, when the Commissioner for Main Roads carried out certain work, the Commissioner was to have, for that purpose, "all the powers and immunities of a council under the [LG Act] and any other Acts conferring powers or immunities on a council". The Main Roads Act was repealed in 1986 by the RTA Act [F239] but s 12(1) stated that the RTA had in relation to construction and maintenance of a classified road or a toll work the "immunities of a council in relation to a public road". Sections 17 and 18 of the RTA Act used similar expressions with respect to work by the RTA on roads not within the area of a council and on roads other than classified roads. The RTA Act was repealed, after the events giving rise to this litigation, by the Roads Act, but ss 65 and 72 of the Roads Act contain similar provisions.
131. It will be observed that the provisions relevantly in force, those of the RTA Act, did not attempt to specify the content of the "immunity" of councils in relation to public roads. That would have been a difficult task, given the exceptions and qualifications apparent in the case law when the RTA Act was enacted in 1986. What the legislation did was to place the RTA in the position in which the case law placed councils with respect to construction and maintenance of public roads. That case law then was and had been for a long period in a state of flux.
132. The legislation does not present an occasion for the analogical use of statute law to develop the common law [F240] . Rather, the Singleton Shire Council submits that the effect of the legislation is to freeze the development of the common law, apparently to its state as understood in New South Wales in 1986. There are obvious difficulties in subjecting the common law of Australia to paralysis by reason of the provisions of a State law giving particular protection to the activities of a public authority of that State. Moreover, the RTA Act did not attempt to declare what the relevant common law was before the RTA Act; this can only be ascertained from the relevant decided cases, and, in the words of Roskill LJ in Henry v Geoprosco International Ltd, in such a situation [F241] :
"[o]ne cannot ascertain what the common law is by arguing backwards from the provisions of the statute".
133. The Shire Council relied heavily upon a decision subsequent to Geoprosco. But in the argument in this later case, Geoprosco appears not to have been cited. The case, Owens Bank Ltd v Bracco [F242] , turned upon the construction of s 9 of the Administration of Justice Act 1920 (UK). This denied registration to judgments rendered in Commonwealth and Empire courts where they had been "obtained by fraud". In Bracco, the statute was treated by the House of Lords as adopting and re-enacting the common law on that subject, as understood at 1920, to the exclusion of any later development of the common law respecting recognition of foreign judgments [F243] . On the other hand, the provisions of the RTA Act are so drawn as to place the RTA in like position to councils in so far as they enjoy an "immunity" under the common law. The legislation attracts to the RTA such immunity as is available from time to time to councils; it does not entrench the immunity of councils such as the present respondents with a content as understood from an examination of the case law in 1986.
E. What should replace Buckle and Gorringe?
134. It is apparent that the "highway rule" as it has developed in Australia is an unsatisfactory accommodation of the competing interests. First, the rule operates capriciously and denies equal protection of the law by barring absolutely a remedy to victims of the negligent omissions of highway authorities while other victims of negligent omissions of other public authorities, or of highway authorities in some other legal persona, are compensated in analogous circumstances. Moreover, in the latter class of case, limitation of funds affords no answer by the defendant.
135. Secondly, a result of the growth of the misfeasance rule (and that respecting "artificial structures") 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 practical consequence is to abrogate the immunity once an authority takes any remedial action and to open up its actions to scrutiny according to the usual principles of negligence. This state of affairs provides a strong incentive to an authority not to address a danger on a roadway.
136. Thirdly, the operation of the "highway rule" is to make some "positive" action, in effect, the determinant of the litigation. A corollary is the necessity to make "the most detailed investigation of the authority's past records, in order to determine what, if any, positive work the authority has carried out on the defective roadway" [F244] . Such an inquiry may be impractical or impossible for the plaintiff for reasons wholly within the defendant's control [F245] . These concerns may increase when work previously performed by a public authority is "outsourced" [F246] to an independent contractor [F247] . There may also be cases where it is impossible to obtain evidence of any work either due to effluxion of time or because a defendant authority has succeeded (sometimes not even directly) the body which first did the work [F248] . To hold that a plaintiff must fail for want of evidence of positive action taken at some time in the past which discloses "when, or by whom, or by which, the relevant work [was] carried out" [F249] is apt to exclude meritorious cases.
137. We conclude that the common law of Australia did not give rise to the "immunity" spoken of in the "highway rule" pleaded in Brodie and relied upon in Ghantous. Buckle and Gorringe should not be taken as placing any impediment in the path of what otherwise would be a right to a judgment in negligence.
138. 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".
139. The relevant considerations in expressing the duty of care that does arise involve the exercise of statutory powers such as those conferred by the LG Act upon the respondents. Those powers have been outlined earlier in these reasons under the heading "Negligence and statutory powers". The content of the duty of care to be owed by public authorities may be outlined by reference both to the fundamentals of the law of negligence and some of the decided cases. Many of these cases would fall to be decided the same way under an approach properly resting upon principles of negligence. In particular, cases imposing liability upon the criterion of "misfeasance" may be given a firmer footing on ordinary considerations of negligence.
140. There may remain the apprehension that to put aside the "immunity" in respect of the exercise or failure to exercise statutory powers such as those conferred by the LG Act upon the respondents, particularly those of road maintenance, offers no discrimen whereby to some but not others of the wide range of permissive powers vested in various statutory authorities there attaches the "ought" of the duty of care. Such an apprehension would be excessive. The powers vested by the LG Act in the respondents gave them a measure of control over the safety of the person or property of citizens which was significant and exclusive. In general, road users in New South Wales are not empowered to manage or change the features of public roads. Without the consent of the relevant authority, a person must not erect a structure or carry out work in, or over, a public road, dig up or disturb its surface or remove or interfere with a structure, work or tree upon it [F250] . The result, as indicated earlier in these reasons under the heading "Negligence and statutory powers", is that the powers vested in road authorities give them a significant and special measure of control over the safety of the person and property of road users. This may make it incumbent upon the authority to exercise its powers, whether by averting the danger to safety or by bringing it to the notice of persons in the situation of the plaintiff. In Pyrenees Shire Council v Day [F251] , the powers of the appellant were in this category [F252] .
141. As a matter of history, the public right of user of highways was so important to social and economic intercourse that, at common law, a highway authority might be indictable for a nuisance arising from its failure to repair [F253] . The use of public roads remains a matter of basic right and necessity. Reference has been made earlier in these reasons to the discussion by Mahoney AP in Hughes v Hunters Hill Municipal Council [F254] of the particular competing interests sought to be accommodated by the "highway rule". The balance this struck, as we have sought to demonstrate, has proved unsatisfactory, but the competing interests remain.
142. It is significant that, the "highway rule" apart, this Court in various circumstances has favoured the imposition of a duty of care requiring the exercise of statutory powers affecting the safety of users of public roads. In Buckle itself [F255] , Latham CJ held that it was the duty of the Road Board to keep the drain in proper order so as to prevent it from becoming a danger to the public and that the Board negligently failed to carry out that duty. In Gorringe [F256] , Dixon J said that "[t]he presumption" in the case of a tramway authority is "that it will incur a civil responsibility for a negligent failure to repair and maintain in a condition of safety the rails and surface of its tramway". Reference has been made earlier in these reasons to Thompson v Bankstown Corporation [F257] . What is of present significance is the conclusion by Kitto J [F258] that, on any view of the evidence, the situation in which the accident occurred had arisen through the council's omission either to remove altogether the earthwire (which had become charged) or to see that it did not become dangerously insecure. Section 382(1) of the LG Act had empowered the Bankstown Corporation to "construct, extend, protect, maintain, control, and manage ... works ... for the supply of electricity".
143. Many of the large number of decisions in other Australian courts where, despite reliance upon non-feasance, the plaintiff succeeded because one or other of the exceptions or qualifications to the "highway rule" applied, proceeded on the tacit or express assumption that statutory powers rather than duties engendered a duty of care.
144. It is true, as Gaudron J pointed out in Romeo v Conservation Commission (NT), that the mere existence of powers in an authority does not of itself create a duty of care [F259] . However, her Honour subsequently stated in Crimmins v Stevedoring Industry Finance Committee [F260] :
"It is not in issue that a statutory body, such as the Authority, may come under a common law duty of care both in relation to the exercise [F261] and the failure to exercise [F262] its powers and functions. Liability will arise in negligence in relation to the failure to exercise a power or function only if there is, in the circumstances, a duty to act [F263] . What is in question is not a statutory duty of the kind enforceable by public law remedy. Rather, it is a duty called into existence by the common law by reason that the relationship between the statutory body and some member or members of the public is such as to give rise to a duty to take some positive step or steps to avoid a foreseeable risk of harm to the person or persons concerned [F264] ."
145. In Aiken v Kingborough Corporation [F265] , Dixon J observed that the general grounds for treating a situation as throwing a duty of care upon a public authority appeared "in the already well-known statement of Lord Atkin in Donoghue v Stevenson [F266] ", but that "it is one thing to impute in general terms a duty of care and another to define its measure". Aiken concerned the liability of a public authority in respect of its control, management and maintenance of a jetty used by the plaintiff, as a member of the public, to moor his boat. This Court rejected [F267] the proposition that the jetty was a highway to which there applied the "immunity" in respect of non-feasance. The property remained in the Crown but the statutory power of control and management of the structure by the authority spelt occupation by it in its own right [F268] . Dixon J concluded that [F269] :
"the public authority in control of such premises is under an obligation to take reasonable care to prevent injury to such a person through dangers arising from the state or condition of the premises which are not apparent and are not to be avoided by the exercise of ordinary care".
146. In Romeo [F270] , Brennan CJ pointed out that this formulation by Dixon J had reflected what, at the time, was seen as the duty owed by an occupier to an invitee. The duty owed by an occupier of private land to various classes of entrant is now comprehensively formulated in Australian Safeway Stores Pty Ltd v Zaluzna [F271] . What, for present purposes respecting authorities dealing with roads, follows from that development of the law? Is the measure of the duty of care imposed upon bodies such as the respondent Councils to be found in the formulation in Aiken, in that in Zaluzna, or in a reconciliation between the two along the lines indicated by Brennan J in Nagle v Rottnest Island Authority [F272] , and by Toohey and Gummow JJ in Romeo [F273] ? Are highways such an essential part of the national infrastructure and the respective positions of highway authorities and users so sui generis as to render inapt any analogy which sees users as entrants or visitors and authorities as occupiers?
147. In Romeo, Hayne J, speaking of the position of the respondent which, by statute, occupied, used, managed and controlled parks, reserves and sanctuaries in the Northern Territory, remarked [F274] :
"It has now long been held by this Court that the position of an authority, such as the Commission, which has power to manage, and does manage, land which the public use as of right is broadly analogous to that of an occupier of private land [F275] . It is the management of the land by the authority which provides the necessary relationship of proximity between authority and members of the public."
148. In Buckle, Dixon J had disavowed any analogy between the position of a highway authority and that of the ownership or occupation of private property [F276] . Nevertheless, as indicated above, that view of the matter did not inhibit Dixon J in Aiken in framing a duty of care analogous to that of an occupier and invitee where that which the authority "occupied" was not a highway. The formulation of the content of the duty of care in this field should not further pursue any analogy between occupation of privately owned land and the management and control by statutory bodies of lands set aside for public use and enjoyment. The rights involved in this litigation are different in nature and degree to those enjoyed by visitors or entrants to or upon the scenic coastal reserve in Romeo, or the Basin swimming area at Rottnest Island.
149. The better course is that indicated in the passage from Webb v The State of South Australia set out earlier in these reasons. The Court there [F277] gave to the duty of care of the highway authority a content reflecting what had been said by Mason J in Wyong Shire Council v Shirt [F278] .
F. Content and breach of the duty of care
150. The duty which arises under the common law of Australia may now be considered. Authorities having statutory powers of the nature of those conferred by the LG Act upon the present respondents to design or construct roads, or carry out works or repairs upon them, are obliged to take reasonable care that their exercise of or failure to exercise those powers does not create a foreseeable risk of harm to a class of persons (road users) which includes the plaintiff. Where the state of a roadway, whether from design, construction, works or non-repair, poses a risk to that class of persons, then, to discharge its duty of care, an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its powers within a reasonable time to address the risk. If the risk be unknown to the authority or latent and only discoverable by inspection, then to discharge its duty of care an authority having power to inspect is obliged to take reasonable steps to ascertain the existence of latent dangers which might reasonably be suspected to exist.
151. The perception of the response by the authority calls for, to adapt the statement by Mason J in Wyong Shire Council v Shirt [F279] , a consideration of various matters; in particular, the magnitude of the risk and the degree of probability that it will occur, the expense, difficulty and inconvenience to the authority in taking the steps described above to alleviate the danger, and any other competing or conflicting responsibility or commitments of the authority. The duty does not extend to ensuring the safety of road users in all circumstances [F280] . In the application of principle, much thus will turn upon the facts and circumstances disclosed by the evidence in each particular case.
152. In dealing with particular cases and in determining factual issues respecting breach of duty, it may be convenient to differentiate between the design and construction of a roadway, between subsequent works done on it and between courses of inspection to ascertain its soundness. These matters are not mutually exclusive and sometimes may overlap.
(i) Construction and design
153. Issues may arise as to whether there was a foreseeable risk of harm arising from the design or the method of construction employed and whether, in choosing or performing the design and construction or in failing to take preventative measures or to put into place warning signs, the authority responsible failed to exercise reasonable care.
154. There will be variations respecting the manner in which a road, as designed and constructed, may be dangerous and likely to cause injury. The laws of physics may dictate that an ordinary road user is subject to forces making use of the road dangerous. For example, the road may be improperly cambered on a curve [F281] , or the road, its sides or shoulders may be inadequate to support vehicles which may reasonably be expected to stop or travel upon it [F282] . The pattern and path of the road may present a danger, often as a result of the terrain through which it must pass, from sharp curves, a steep incline or the like. The design of the road may be such that natural forces or elements may create a danger. For example, natural watercourses may make the road surface slippery or uneven [F283] , or the design of the road may allow natural forces to deposit dangerous quantities of gravel upon it [F284] . The road markings may create, conceal or mislead as to the existence of a danger in the road surface [F285] , or the design of the road or structures on it may present a concealed danger [F286] .
155. The question whether "due care and skill" was taken [F287] in design and construction will require consideration of all the circumstances of the case. The circumstances will include the type and volume of traffic expected. Different roads will serve different purposes and need not be constructed to the same standard. Thus, one would not expect all country roads to be sealed. The cost and practicality of an alternative and safer design, if one be available, may be weighed against the funds available to the construction authority. This may involve striking a balance between competing designs or methods of construction.
156. It may also be that, although a road is in a dangerous condition, the authority will have discharged its duty of care by taking reasonable steps to minimise any danger or to prevent it arising. The authority may have provided adequate warning to users of the road by erecting appropriate signs [F288] (so that, if exercising due regard for their own safety, users are able to avoid the danger [F289] ), or by building into or adding to the road features such as safety devices or fencing which tend to minimise the danger [F290] .
157. The safety of a road may be altered by changes to the ground over which it passes. These changes may produce a source of danger which requires the taking of reasonable steps to remove or minimise it. Thus, for example, if a ravine is cut alongside a road, or exposed by the removal of natural scrub, it might well be incumbent on an authority having the management of that road to install fencing to prevent users of the road too easily falling into the ravine [F291] .
(ii) Repair, maintenance and works
158. A rejection of the "immunity" for "highway authorities" and the recognition of a duty of care in terms expressed above with reference to Wyong Shire Council v Shirt does not necessarily involve the imposition of an obligation in all cases to exercise powers to repair roads or to ensure they are kept in repair. An authority may have various statutory powers invested in it and would be under a duty not to use, misuse or fail to use those powers to create a situation of danger which creates a reasonably foreseeable risk of injury to a user of the road.
159. The discharge of the duty involves the taking by the authority of reasonable steps to prevent there remaining a source of risk which gives rise to a foreseeable risk of harm. Such a risk of harm may arise from a failure to repair a road or its surface, from the creation of conditions during or as a result of repairs or works [F292] , from a failure to remove unsafe items in or near a road [F293] , or from the placing of items upon a road which create a danger [F294] , or the removal of items which protect against danger [F295] .
160. In dealing with questions of breach of duty, whilst there is to be taken into account as a "variable factor" the results of "inadvertence" and "thoughtlessness" [F296] , a proper starting point may be the proposition that the persons using the road will themselves take ordinary care [F297] .
161. Not all failures to repair will create risks to the users of a road, or at least not risks which would, as a matter of the reasonably foreseeable, pose a risk of injury. Although it has been said many times that the digging of a hole in a roadway constitutes an actionable misfeasance, the size and location of such a hole may vary and must be considered when determining, on the facts of the particular case, whether it will reasonably foreseeably lead to injury or harm to a user of the road. Depending on the conditions of the road, a "hole" caused by removal of a portion of the road surface may not pose any foreseeable risk to cars; signs may provide adequate warning against whatever risks it poses to motor-cyclists or cyclists. On the other hand, a trench in the roadway, whether arising from active digging or decay of the road or structures within it, will more readily give rise to a foreseeable risk of injury, particularly where it cannot easily be seen or avoided by a road user. The nature of the defect, and not the question of whether it arose by action or "non-feasance", should be significant. The court record and the report of Gorringe do not disclose sufficient material to enable it now to be said that under this dispensation the plaintiff in Gorringe would have recovered in respect of the injury sustained upon the collapse of the "appreciable depression" [F298] in the road surface.
162. The formulation of the duty of care includes consideration of competing or conflicting responsibilities of the authority. In the circumstances of a given case, it may be shown that it was reasonable for an authority to deal in a particular priority with repairs in various locations. The resources available to a road authority, including the availability of mat é riel and skilled labour, may dictate the pace at which repairs may be made and affect the order of priority in which they are to be made. It may be reasonable in the circumstances not to perform repairs at a certain site until a certain date, or to perform them after more pressing dangers are first addressed. Even so, it may well be reasonable for the authority to exercise other powers including, for example, by erecting warning signs, by restricting road usage or, in extreme cases, by closing the road in question.
(iii) Pedestrians
163. The formulation of the duty in terms which require that a road be safe not in all circumstances but for users exercising reasonable care for their own safety is even more important where, as in Ghantous, the plaintiff was a pedestrian. In general, such persons are more able to see and avoid imperfections in a road surface. It is the nature of walking in the outdoors that the ground may not be as even, flat or smooth as other surfaces. As Callinan J points out in his reasons in Ghantous, persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as uneven paving stones, tree roots or holes. Of course, some allowance must be made for inadvertence. Certain dangers may not readily be perceived because of inadequate lighting or the nature of the danger (as in Webb v The State of South Australia [F299] ), or the surrounding area (as in Buckle, where the hole was concealed by grass [F300] ). In such circumstances, there may be a foreseeable risk of harm even to persons taking reasonable care for their own safety. These hazards will include dangers in the nature of a "trap" or, as Jordan CJ put it, "of a kind calling for some protection or warning" [F301] . In Romeo, Toohey and Gummow JJ noted in a different context that the care to be expected of members of the public is related to the obviousness of the danger [F302] . Kirby J pointed out in the same case that even an occupier of premises "is generally entitled to assume that most entrants will take reasonable care for their own safety" [F303] . Each case will, of course, turn on its own facts [F304] .
(iv) Inspections
164. Cases respecting inspections for dangerous conditions have been determined by the dichotomy between misfeasance and non-feasance. A "highway authority" was not liable if it failed to conduct inspections but, seemingly, was liable if it began remedial work in response to the discovery by inspection of defects [F305] or, possibly, even once it discovered the existence of those defects. These cases usually involved "non-feasance", as an inspection typically discloses a situation which is unsafe and needs repair. Allied to them are cases in which a danger first manifests itself when the road surface, or a structure, collapses or gives way either under the plaintiff or shortly before it is crossed.
165. Where the danger could not reasonably be suspected to exist, or could not be found except by taking unreasonable measures, generally there will be no breach of duty by the authority. On the other hand, there will be a breach of duty where an authority fails to take reasonable steps to inspect for such dangers as reasonably might be expected or known to arise, or of which the authority has been informed or made aware [F306] , and, if they are found, fails to take reasonable steps to correct them. In the cases, the danger usually manifests itself in decayed beams or supports of bridges, or drains or culverts, or other structures supporting a road or its surface. The reports of Macpherson [F307] , Buckle and Gorringe all disclose insufficient facts to determine the reasonableness of the inspections which did take place or of the failure to inspect and ascertain the existence of the danger which caused the injury to the plaintiffs in those cases.
G. The facts in Ghantous
166. The facts are considered by Callinan J on the footing that an action in negligence would lie against the Hawkesbury City Council for failure to maintain or improve the footpath in question and to keep or make it safe. His Honour concludes that there was no failure in that regard because the footpath was not unsafe for a person taking ordinary care.
167. We agree with his Honour's analysis of the facts and with his conclusion that there was no breach of duty by the Council, either in the construction of the footpath or in the failure to keep level the concrete strip and verges.
168. That conclusion also means that, putting the "immunity" to one side, the Council neither created nor negligently continued a nuisance, within the sense of the authorities considered earlier in these reasons [F308] . As explained earlier in these reasons, Ghantous exemplifies the cases where the cause of action in nuisance is subsumed by that in negligence. However, it is apparent that the applicant's alternative nuisance claim would have failed in any event.
H. The facts in Brodie
169. The primary judge made clearly stated findings of fact to the following effect. The second applicant ("Londay") is the family company of Mr Brodie and his wife. It owned the chassis of the truck used by Mr Brodie in his trucking business. Pioneer Concrete (NSW) Pty Ltd ("Pioneer") owned the mixer attached to the chassis. Londay conducted its operations under contract with Pioneer.
170. On the morning of 19 August 1992, Mr Brodie picked up a load of concrete ordered by or on behalf of the New South Wales Water Resources Commission for work it was undertaking at the Glennies Creek Dam. Four loads of concrete were required and the first three trucks set off before Mr Brodie. He had been told that Pioneer had been engaged to finish off a job at the dam in place of Boral because the Boral trucks were "too big". The Boral trucks were 28-30 tonnes with a full load, whilst Mr Brodie's truck was 22 tonnes fully loaded.
171. On the way with his load of concrete, Mr Brodie passed two of the three other trucks as they were returning from the dam site. Mr Brodie had been told to go to the dam by following the Old Carrowbrook Road. Mr Brodie's evidence in cross-examination was that he had not used that road before. He passed over one bridge, called Frank's Bridge, which had a sign before it stating "15 tonne max", that is to say 7 tonnes less than Mr Brodie's truck. However, on the same day, three other trucks of 22 tonnes already had gone over Frank's Bridge. By inference, the much larger Boral trucks had done the same on other occasions. There was no finding that Mr Brodie ignored the warning posted before Frank's Bridge. To the contrary, the trial judge accepted that Mr Brodie did not see the sign before Frank's Bridge because, at the relevant time for doing so, he was concentrating on a car coming in the opposite direction. He did hear a message over the radio from one of the other Pioneer drivers that the bridge was "rickety". This Mr Brodie understood to mean that the bridge had some loose planks and he did not take the message as indicating that the bridge was in any way unstable.
172. The next bridge was Forrester's Bridge. There was no sign before it. Mr Brodie started the passage across the bridge at a speed of about 10 kilometres per hour when the girders supporting the bridge between the spans gave way, the bridge collapsed and the truck with the load of concrete fell 10 metres onto the creek bank.
173. The expert evidence was that the load limit of the bridge with solid timber girders was between 10.6 tonnes and 13.5 tonnes, but that the load limit of the bridge with timbers containing "piping", ie the rotting out of the centre of the timbers because of either dry rot or white ants, was between 9.3 tonnes and 11.9 tonnes.
174. In the applicants' case, a number of documents were tendered from the files of the Shire Council indicating that it had been aware of the poor condition of the bridge and that, within the recent past before the accident, it had carried out some repairs on it. The bridge had been inspected in 1991 for the purpose of determining whether permission be given for crossing by a 20 tonne crane. Approval was given and the crane crossed and re-crossed without incident. Earlier, on 17 April 1986, the Shire Council had given permission for a vehicle to cross the bridge carrying pipes and having a gross weight of 40 tonnes. However, it was not clear what type of vehicle had been used.
175. On six occasions between March 1986 and July 1991, the Shire Council had carried out rectification work to the planks running perpendicularly across the girders, which were large timber beams running parallel to the road. The work had involved replacement of a significant number of planks on the bridge. All timber bridges were inspected four times a year by experienced leading hand bridge carpenters and others. The inspection consisted of a visual appraisal of all timbers, but the expert evidence was that this was insufficient to detect piping.
176. The primary judge held that, at the time the rectification work was carried out, the Shire Council staff should have discovered that the girders were substantially affected by piping, the deterioration being caused either as a result of dry rot or white ants. His Honour also found that, whilst this state of affairs might not be visible to the naked eye, it would have been quickly detectable by the action of hitting the girders with a hammer or driving a spike into them.
177. These findings bear out the conclusion for which the applicants contended in their written submissions at the trial that, by patching the bridge to make it capable of bearing traffic, the Shire Council had created a superficial appearance of safety without attacking the fundamental problem which made the bridge unsafe, namely the piping in the structural members.
178. This was not a case where the danger presented by the deteriorated condition of Forrester's Bridge could not reasonably have been suspected by the Shire Council to exist, nor was it a danger that could not have been ascertained except by taking unreasonable measures. Rather, this was a case which, on the evidence, involved the conduct of periodic inspections but the failure to take in the course of those inspections reasonable steps to look for such dangers as might reasonably be expected to arise.
179. Mr Brodie did not see the sign at the first bridge and his failure to do so is not to be attributed to any want of proper attention on his part. What was decisive of the question of whether he had taken ordinary care in seeking to drive his load across Forrester's Bridge was the inference of safety which ordinarily would arise from the earlier passage that day across the bridge of similarly burdened trucks.
180. In their Reply, the applicants had pleaded that "[t]he doctrine of non-feasance is no longer good law". The Shire Council led no evidence as to liability. In particular, it did not lead evidence to rebut any inference otherwise arising from the applicants' case that it knew the bridge was in a dangerous condition. Nor did it lead evidence of reasons why it could not or did not carry out further work on the bridge. As Samuels JA put it, giving the judgment of the New South Wales Court of Appeal in Hill v Commissioner for Main Roads [F309] , "there was at least an evidentiary onus on the defendant to bring into contention the assertion that there were exculpatory economic circumstances which it might adopt as a shield".
181. In these circumstances, if there be put aside considerations arising from the "immunity" in respect of "non-feasance", the decision in favour of the applicants is supportable by application of the ordinary principles of negligence to the facts as found; there has been as yet no challenge in the Court of Appeal to these findings, in so far as this approach to the case is concerned.
182. The appeal by the Shire Council to the Court of Appeal was decided on the footing that, contrary to one basis upon which the applicants had run their case at trial, the "immunity" conferred by the doctrine of "non-feasance" was good law. However, as matters presently stand, there has been no determination by the Court of Appeal of any grounds challenging the findings at trial which, as we have indicated, would support a finding of liability under the ordinary principles of negligence. It may be that, as presently framed, the grounds of appeal would require expansion for that challenge to be made. We express no conclusion upon that question. Any necessary application to amend would have to be made to the Court of Appeal. What is of immediate importance is that this Court should not foreclose these issues by making an order with the effect of restoring the judgment at trial in favour of the applicants. The matter must be returned to the Court of Appeal.
183. In addition to contesting liability, the Shire Council disputed the correctness of the award of damages made to the first applicant for general damages, future medical expenses and future economic loss. In the event, it was unnecessary for the Court of Appeal to deal with those issues. It must now be given the opportunity to do so.
I. Orders
184. In Ghantous, the application for special leave should be granted but the appeal should be dismissed with costs.
185. In Brodie, the application for special leave should be granted, the appeal should be allowed with costs, and the orders of the Court of Appeal set aside. The matter should be remitted to the Court of Appeal for the determination of the remaining issues on the appeal. Questions of costs of the appeal to the Court of Appeal and at the trial should be for determination by the Court of Appeal in the light of its final disposition of the appeal to that Court.