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

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(Judgment by: Kirby J)

Between: Scott Munn Brodie and Anor - Applicants
And: Singleton Shire Council - Respondent
Between: Catherine Ghantous - Applicant
And: Hawkesbury City Council - Respondent

Court:

Judges: Gleeson CJ
Gaudron J
McHugh J
Gummow J

Kirby JHayne 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

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Judgment by:
Kirby J

186. These applications, referred to a Full Court ^[F310] , concern the so-called "highway rule". For many years it has been accepted in Australia that the common law provides "highway authorities" with an immunity from legal liability for negligence and nuisance, if the claim against them concerns some element of the "highway" and arises out of the failure ("nonfeasance") of the authority to exercise its powers (as distinct from a "misfeasance" or negligent exercise) ^[F311] . Such immunity arises not from any express conferral of that privileged position by statute but as a result of judge-made law.

187. The applicants submit that this Court should re-express the common law. It should remove the immunity as a "relic" of an "out-worn fallacy" ^[F312] which is "logically indefensible" ^[F313] . It should absorb the liability of a highway authority within the mainstream of legal doctrine governing the liability of statutory authorities generally when sued for tortious performance of, or failure to perform, their statutory powers. Alternatively, if the immunity is maintained, the applicants contend that it did not, in their cases, operate to exempt the authorities concerned from liability otherwise attaching to them.

The three basic questions

188. Upon my analysis, three basic questions are presented by the applications. They are:

1.

Is the highway rule a defensible rule of the common law in Australia, as viewed in the context of contemporary understandings of applicable legal principles and as judged in the setting of contemporary social conditions ^[F314] ?

2.

If not, should this Court now re-express the common law as applicable to claims against highway authorities in terms that eliminate the immunity and subsume the liability of such authorities to that of other statutory authorities in the mainstream of applicable legal doctrine? Or should the Court refrain from disturbing the present expression of the common law upon the basis that any reformulation of that law is a matter for a legislature and not for a court?

3.

If the common law should be re-expressed to abolish the immunity hitherto enjoyed by highway authorities, did a duty of care of a relevant scope apply to the authorities in question in the present proceedings? If so, was each applicant's respective damage caused by the breach of such duty so as to give rise to recovery in either matter?

The facts, legislation and common ground

189. The facts of the two cases before the Court are set out in the reasons of other members of the Court ^[F315] . So is the applicable legislation in New South Wales empowering the respective respondents to perform functions in respect of public roads ^[F316] and expressing an assumption that a council, in relation to a public road, enjoys "immunities" as well as "functions" ^[F317] . I will not repeat those details.

190. At trial, each of the applicants formally submitted that the distinction between "nonfeasance" and "misfeasance" no longer represented the criterion by which the liability of the respective respondents was to be determined ^[F318] . Neither respondent called evidence directed to the processes of its decision-making in respect of the "road" in question, the limitations on available resources or competing priorities. In Mr Brodie's case, the respondent called no evidence at all in respect of the issue of its liability. In Mrs Ghantous's case the only evidence called by the respondent was that of an engineer qualified to give expert testimony of a general character.

191. It follows that, in neither case, was there evidence of a specific kind as to the reasons why each respondent, as a road authority, could not, and did not, repair the particular section of "road" alleged to have been dangerous ^[F319] . Each respondent pleaded, relied upon and, in the result, succeeded in its defence based on the immunity belonging to a highway authority. In Mrs Ghantous's case, she failed at trial on the basis of a finding that the immunity was applicable. In Mr Brodie's case, although he succeeded at trial ^[F320] , he lost that judgment on appeal. The Court of Appeal dismissed Mrs Ghantous's appeal ^[F321] . It upheld Singleton Shire Council's appeal in Mr Brodie's case ^[F322] . It rejected both claims as unsustainable in law having regard to the highway rule, binding on the Court of Appeal, as established by this Court's decisions in Buckle v Bayswater Road Board ^[F323] ("Buckle") and Gorringe v The Transport Commission (Tas) ^[F324] ("Gorringe").

192. Although it was not open to the Court of Appeal to question or review any rule established by the foregoing decisions of this Court ^[F325] , it is open to this Court to do so. The applicants have submitted that this should be done. In the circumstances, this Court is required to consider and rule upon that submission.

The highway rule is unsustainable in principle

193. I am relieved of the obligation to examine, at any length, the first question that I have identified. Such examination appears in the joint reasons in terms that I accept. Their Honours have examined the sources in the law of England from which the immunity of highway authorities was developed. They have indicated how the highway rule was originally devised in a legal context quite different from that of the Australian colonies into which the common law of England was received ^[F326] . Although, from the start, the building of public highways and roads in Australia was a responsibility of government, and eventually of statutory bodies (and not of parishes or the men thereof as in England ^[F327] ), the transfer of the rule of the English common law to Australian law occurred without regard to three considerations that we can now see as legally critical.

194. The first of these was the detailed statutory regime which, in Australia, came quickly to govern the powers and duties of highway authorities in respect of the construction, repair and maintenance of highways and roads ^[F328] . The second, connected with the first, concerned the identification of a defendant competent to be sued in nuisance. Once a statutory corporation was identified as liable to be sued this problem disappeared. The third consideration was the general development of the law of negligence following Heaven v Pender ^[F329] and Donoghue v Stevenson ^[F330] .

195. The immunity of highway authorities arose in England and was received into Australian law before the tort of negligence was fully developed ^[F331] . In recent decades, the reconceptualisation of that tort in Donoghue v Stevenson has influenced many developments in the law of negligence in this Court ^[F332] . However, the emergence of a coherent law of negligence ^[F333] had not occurred when Buckle fell to be decided in this Court in 1936. The analysis of the liability of the highway authority in that case (including that of Dixon J who was there in dissent) was not challenged in Gorringe. That decision represents the last occasion on which the immunity of highway authorities was considered by this Court.

196. The result of Buckle and Gorringe, perhaps harmonious to a time when this Court's decisions were subject to appeal to the Privy Council, has been the importation into Australian law of a rule of dubious applicability to Australian conditions ^[F334] ; traceable to peculiarities of early English road-building responsibilities; sustained in part by particularities of the law of nuisance; indifferent to the distinct local statutory provisions governing Australian highway authorities; and overtaken by profound developments of the tort of negligence, not earlier considered by this Court. Thus, by a kind of time-warp, the English rule came to be applied in Australia. Earlier authority of this Court ^[F335] which, left to itself, might have developed a suitable local rule, was ignored. Instead a rule was expressed conferring a large immunity on Australian statutory highway authorities. At common law they were not liable for "nonfeasance". They were only liable for "misfeasance".

197. By clear provision, a statute otherwise within power may afford immunity to a person or body named ^[F336] . However, any such immunity will be strictly, even jealously, confined in the terms of the statute. This is because immunity represents a departure from the ordinary rule of civil liability and accountability upheld by the law ^[F337] . A judicial distaste for the common law immunity provided to highway authorities quickly became evident in the decisions of Australian courts bound to apply the highway rule as established in Buckle and Gorringe. As the joint reasons point out ^[F338] , every element of that rule has given rise to difficulty as judges sought to confine the ambit of the immunity to the narrowest terms consistent with authority binding on them.

198. Thus, the definition of a "highway", for the purpose of the immunity, was restricted so as to exclude so-called artificial "constructions", "works" and "structures" ^[F339] . Being a doctrine of the common law of Australia, particular statutory definitions of a "road" or "highway" could not control the ambit of the common law rule in this regard. The "structures" which were held to fall outside the immunity merely served to highlight the anomalies of the basic rule ^[F340] . Moreover, the designation of particular statutory bodies as "highway authorities", such as enjoyed the immunity, and the determination of whether such bodies had acted, or failed to act, in a capacity as a highway authority, have led to other seemingly capricious results ^[F341] . There appears to be no logic or justice in a rule of the common law that affords immunity to a "highway authority" but denies it to a sanitary, electricity or other authority with statutory powers, the exercise or neglect of which might just as readily affect the safety of persons on a "highway" ^[F342] .

199. The distinction between "nonfeasance" and "misfeasance" is also highly disputable and contentious ^[F343] . Little wonder that the immunity from liability provided only to highway authorities should be so troubling to judges ^[F344] . Not surprisingly it has produced countless distinctions, exceptions, qualifications and uncertainties. The result has been a body of law that can only be described as unprincipled ^[F345] , unacceptably uncertain ^[F346] and anomalous ^[F347] , resting on an incongruous doctrine ^[F348] and obscure and inexplicable concepts ^[F349] and giving rise to disputable escape mechanisms ^[F350] utilised by judges struggling to avoid conclusions so apparently unjust and repugnant to the normal policy of the law ^[F351] .

200. In such circumstances, with very few defenders ^[F352] (and those offering "paltry" ^[F353] and unconvincing justifications for the immunity), it would seem, on the face of things, that the highway rule is ripe for judicial re-expression in this Court. As is the nature of the common law, what the judges having the authority have made, they can unmake. They may do so when the rule previously established is shown to have many weaknesses both as a matter of legal authority and of legal principle and policy.

201. However, the respondents urged this Court to adhere to the highway rule as expressed in Buckle and Gorringe. They argued that such a rule of substantive law, having entered into the accepted body of the common law of Australia, should not be changed by this Court. Making such a change would constitute a legislative and not a judicial act. Any change should be left to the relevant Parliament. A legislature, if it saw fit, could enact an alteration of the law. The function of courts is to apply, and not to change, the law, at least a rule of law as well established as that affording highway authorities the immunity upon which the respondents relied for their defence.

202. The Court is unanimous, although for different reasons, that the proceedings brought by Mrs Ghantous fail. However, the Court is closely divided in Mr Brodie's case which therefore presents the crucial question for decision. On that question, I have reached the same conclusion as do the joint reasons. This Court can and should re-express the applicable law. I must therefore explain my reasons for concluding this way.

The general approach to change in rules of the common law

203. Principled and consistent decisions: It is obvious that the rules of the common law are in a constant process of alteration and re-expression. Far from this being a weakness of the legal system, its capacity to change is one of its greatest strengths. In Kleinwort Benson Ltd v Lincoln City Council, Lord Goff of Chieveley remarked ^[F354] :

"It is universally recognised that judicial development of the common law is inevitable. If it had never taken place, the common law would be the same now as it was in the reign of King Henry II; it is because of it that the common law is a living system of law, reacting to new events and new ideas, and so capable of providing the citizens of this country with a system of practical justice relevant to the times in which they live."

204. Judges of final courts of appeal, when invited to alter an accepted rule of the common law, may in one case give powerful expression to the call for restraint ^[F355] . Yet in another case, the same judges may accept that a change in the expression of the law is essential. They may then support an alteration despite its having large consequences for the parties and for others ^[F356] .

205. To prevent judicial decisions in such matters from becoming nothing more than idiosyncratic or personal responses to the circumstances of particular cases, some guidance should be derived from earlier decisions on like questions to ensure that the resolution of such issues is as principled and consistent as the varying circumstances of different cases permit.

206. Confronted by the second question ^[F357] , I remind myself that in a number of recent decisions where this Court was invited to alter an accepted rule established by past authority, I sometimes acceded to the request. Sometimes I rejected it, concluding that any change considered necessary must come from the relevant Parliament and not from the Court. Sometimes I was a member of the majority and sometimes in dissent. By re-examining the criteria which led me to these earlier decisions, I may not only ensure (so far as possible) that my response to the present applications is consistent with past decisions. I may also help to disclose those considerations which, in my view, should be taken into account when faced with submissions of the kind presented in the present applications ^[F358] .

207. Supporting alteration: A number of considerations are relevant when evaluating a submission to a final court that the common law should be changed despite the fact that doing so will affect the rights of parties and others.

208. First, in a legal system such as that of Australia, there can be no expression or re-expression of the common law that is incompatible with the Constitution ^[F359] . The content of the common law adapts itself to the Constitution. Where an express provision or implication of the Constitution has been overlooked in the past ^[F360] , this Court has brought the law into conformity with the Constitution. Considerations of inconvenience, the existence of longstanding authority and cost must bend to the Constitution's requirements ^[F361] .

209. Secondly, where large changes in the statement of the common law have earlier been adopted by this Court, especially if influenced by fundamental civil rights ^[F362] , the task of the Court in subsequent cases is to re-express the common law in a consistent way. It must follow through the "logical consequences" of the previous shift in law ^[F363] . When the law has taken a new direction, it is normally pointless to yearn for a return to the past. Thus, after the decision in Donoghue v Stevenson ^[F364] , many aspects of the law of negligence were in need of reconsideration.

210. Thirdly, it is the undoubted function of a court such as this to contribute to the simplification of legal concepts, replacing categories with principles that will permit a more coherent and efficient application of the common law ^[F365] . In this regard, this Court has functions in relation to the unified common law in Australia different from those of other final courts, such as the Supreme Court of the United States ^[F366] . In discharging its functions, this Court, when asked, can and should reconsider the common law if, on analysis, that law appears to be out of harmony with altered social conditions ^[F367] . Or if it contains anachronistic categories that invite abolition or modification ^[F368] . Or if, effectively, it derogates unjustifiably from the principle of equality before the law ^[F369] . One consideration that may encourage re-expression of the common law by the Court is a call for an established principle to be reconsidered by judges who have the responsibility of applying it and who identify defects occasioning confusion, uncertainty or injustice ^[F370] .

211. Fourthly, whilst the legislature has the primary role, and responsibility, in reforming the common law (and is nowadays assisted by law reform and like bodies) that fact does not relieve this Court of its own responsibilities to repair clearly demonstrated defects of judge-made law. Where legislatures have failed to act, despite having weaknesses and injustices in the common law drawn to their notice, it cannot be expected that the courts will indefinitely ignore such weaknesses and injustices ^[F371] . The Constitution envisages that the courts for which it provides will continue to play a function in renewing the common law as courts of their character have been doing for centuries. In the field of liability for negligence alone, history, including recent history, demonstrates that this Court's decisions have re-expressed the content of the common law quite often ^[F372] . Sometimes the re-expression may erase outmoded rules or immunities ^[F373] . Sometimes it may uphold a policy more in tune with contemporary social values ^[F374] . Sometimes it may correct the apparent failure of earlier decisions to take into account a crucial consideration, such as the statutory context within which a common law rule must operate.

212. Rejecting alteration: As against the foregoing considerations which may tend to encourage a court to abolish or re-express an old rule of the common law, a number of others may suggest that the law should be left unchanged. Even if convinced that a rule of the common law is defective or results in injustice, this Court might, in a given case, conclude that it should leave any re-expression to the relevant legislature ^[F375] .

213. First, it is appropriate for the Court to take into account the extent to which the challenged rule is established by longstanding authority ^[F376] and whether it has recently been reaffirmed and applied by this Court ^[F377] . If the rule reflects long-established authority and is frequently applied, a sudden change of direction may be seen as an act legislative, rather than judicial, in character. It may undermine not only the authority of the substituted rule but also respect for established legal principles, which it is the duty of this Court to defend.

214. Secondly, the scope and implications of any change must be weighed. Although there are exceptions, where a proposed alteration of course is indisputably substantial, judges will ordinarily pause before taking that step. The common law usually progresses in a modest fashion, by incremental steps, relying on analogous reasoning ^[F378] . It avoids large and rapid leaps (eg from legal immunity to strict liability ^[F379] ). The greater the social, economic and political implications of any alteration of decisional authority, the more likely is it that a court will leave the change to a legislature. The Parliaments can effect change after notice to the public, appropriate debate and an opportunity for expert advice on the ramifications of any change ^[F380] .

215. Thirdly, because, under the Constitution, courts in Australia may not declare that a change will have prospective operation only ^[F381] , a factor militating against re-expression of the common law is the extent to which any such change will affect a wide variety of public and private interests: exposing to liability those who previously may reasonably have assumed that they were not liable, or who may have arranged their affairs on the basis of established authority ^[F382] . In such cases, it is relevant to take into account the capacity of those affected to meet the enlarged liability and whether they have (or would be able in the future to procure) suitable insurance ^[F383] . The wider and more varied the class affected by any change, the greater the need for caution by a court invited to re-express the law ^[F384] .

216. Fourthly, it is relevant to consider whether the legislature has overlooked the defects in the law in question or whether it has intervened, but withheld change of the particular kind urged upon the Court. These were considerations relevant to my own conclusions in Lipohar v The Queen ^[F385] and Esso ^[F386] . The fact that, in the former, on one view, a retrospective alteration of the law affecting criminal liability was involved was another consideration that led me to resist the proposed re-expression of the law. Such retroactive alteration of rules affecting criminal liability should rarely, if ever, be attempted by a court ^[F387] .

217. Securing balance: Deciding whether, in the particular case, considerations such as the foregoing (and other factors that may be relevant) require retroactive alteration of the common law, or a reaffirmation of past authority, obviously necessitates evaluation and judgment ^[F388] . The decision is not susceptible to a mechanical solution. That is why judges often reach different conclusions about what should be done in a particular case.

218. Even if judges agree that a common law rule has become encrusted with false categories occasioning apparent injustices ^[F389] , different judges at different times and in different cases may, like their courts, show more or less willingness to revise and re-express that established authority ^[F390] . Obviously, the greater the apparent affront to justice and the more confused, anachronistic and unprincipled the current law appears to be, the more likely is it that a judge with authority to do so will eventually feel obliged to attempt a re-expression of the law. On the other hand, the greater the antiquity of the rule, the larger the implications of change, the more interests that are affected and the closer the occasions of legislative attention, the less likely will it be that the judge will feel authorised to disturb past authority.

219. The natural and proper judicial inclination in such matters is towards restraint. This is the judicial approach common to our governmental system ^[F391] . It is one to which I have often given effect ^[F392] . On the other hand, there can be no contest that in certain circumstances this Court will be driven, even in large matters, to abandon discredited authority so as to place the law on a footing that is more principled and just. Such has always been the case in every common law legal system. It is no different in Australia today. Why is this such a case?

The arguments against abolition of the highway rule

220. The respondents invoked a number of specific arguments to resist the applicants' submission that this Court should now depart from the immunity rule protecting highway authorities and the distinction between "nonfeasance" and "misfeasance" adopted in Buckle and Gorringe.

221. First, they laid emphasis on the fact that the rule had survived for a very long time. According to Fullagar J in Gorringe, it was settled in England by 1895 ^[F393] . Any argument that the rule was not suitable to Australian conditions, and so not inherited as part of the common law in Australia, was determined beyond reasonable dispute by the decisions in Buckle and Gorringe. Consequently it was argued that it was too late to reopen that controversy. Similarly, even if, in Buckle, this Court might have overlooked some earlier decisions ^[F394] that fact could not undermine the authority of the rule established in that decision and reaffirmed in Gorringe. Even critics of the current law had not doubted its status as the law. Indeed, on the footing of its authority, the critics complain that there was no suggestion of doubt in Gorringe that the law was as expressed in Buckle ^[F395] . Hence, they have pinned their hopes on alteration of the law by the legislature or by this Court ^[F396] .

222. Secondly, much emphasis was laid by the respondents upon the enactment of what they said was relevant legislation. It was submitted that this precluded re-expression of the common law on this subject. As long ago as 1957, legislation was enacted by the Parliament of New South Wales ^[F397] which, on one view, expressed a parliamentary acceptance that a measure of "immunity" existed for highway authorities in that State. Similar provisions continue to the present time. It was said to be relevant in two respects. It provided a specific statutory "endorsement" of the common law and prevented judicial modification such as would challenge the hypothesis upon which Parliament had acted. But, also, it was relevant to the statutory context in which any common law liability would have to be fashioned. A plaintiff would not only have to convert a statutory "power" to a "duty". He or she would have to do so in a milieu in which the statute contemplated an "immunity" at least to some extent. Even if the derivation of common law duties from statutory powers was not to be approached (as Brennan CJ favoured) by searching for the implications to be imputed to the statute itself ^[F398] , the creation of a common law duty would still have to run the gauntlet of a statutory "immunity" of undefined content.

223. Thirdly, the respondents placed emphasis on the policy advantages of retaining a special rule for the liability of highway authorities in a country the size of Australia. Whatever might have been the different circumstances of rural England centuries ago when the immunity, for different reasons, was developed, it was, so this Court was told, a principle well adapted to a country of continental size such as Australia, with its sparse population and remote areas to be served by a vast network of roads. Such roads were inevitably prone to deterioration. This was particularly so in the harsh climatic conditions typical of some parts of Australia. A specific rule of the common law, which treated highway authorities as sui generis, might offend some legal theorists. But it contributed, so it was claimed, to certainty in the law and thus to the prevention of needless litigation ^[F399] . Application of the ordinary law of negligence would expose highway authorities and plaintiffs unexpectedly and retrospectively to liability for "nonfeasance" long regarded as inapplicable to such matters.

224. Fourthly, the respondents emphasised the cost implications of any change of the law. Whilst accepting that this would not be a conclusive argument, given that other re-expressions of the common law by the Court necessarily had large economic consequences ^[F400] , the respondents submitted that the Court was not well placed to estimate the likely costs of added litigation, presently discouraged or defeated by the highway rule. Although tendered for the purpose of supporting the applications of a number of the States to intervene in the interests of the respondents, it is perhaps permissible (as these proceedings constitute applications for special leave, and not appeals ^[F401] ) to take into account the evidence of State officials. Their affidavits recount the huge extent of highways, roadways and pathways throughout the nation and the very large funds already devoted to their expansion, upkeep and improvement. It needs no evidence to make the point that the removal of an immunity, formerly established by law, would have economic consequences. Unless reversed by statute, it would, to the extent required, divert some resources of the highway authorities from current priorities to include a new priority: compensating the victims of negligent acts and omissions that could be proved against highway authorities, presently falling within the immunity.

225. Fifthly, a special reason for restraint was said to be the fact that, despite reports of law reform bodies in three Australian States recommending reform of the applicable common law, the respective legislatures had failed, or refused, to enact a change ^[F402] . This was the more telling because similar recommendations had been adopted in parts of Canada ^[F403] . In England, from whose law the immunity rule had been derived, the law had been changed; not by the courts but by Parliament ^[F404] . The respondents urged that this was the correct path to which this Court should adhere. What was involved was not a matter of procedural law, as such, specially apt to judicial alteration ^[F405] . It was a longstanding rule of substantive law upon the basis of which, for a very long time, local authorities and others throughout Australia had ordered their affairs ^[F406] .

The immunity should be abolished and the common law re-expressed

226. I accept the force of the foregoing arguments for adhering to this Court's past authority. However, in my view the Court should now remove the anomalous immunity, re-express the common law in Australia and subsume the liability of highway authorities in negligence and nuisance within the general law governing all other statutory bodies. My reasons are as follows.

227. First, criticism of the present rule is almost universal. It is assailed by almost all who have considered it save those who benefit from its anomaly, namely governments and highway authorities. The criticisms of the rule, collected in the joint reasons ^[F407] , demand the conclusion that it is unprincipled and anomalous in character and elusive and disputable in operation. It does not even have the merit of certainty, as the respondents incorrectly claimed. The highway rule is so riddled with exceptions and qualifications as to justify the complaint that it is one of the "most obscure and inexplicable concepts ever formulated in our courts" ^[F408] . This is not, therefore, a rule that has simply been overtaken by social change or other advances in legal doctrine. It is a rule, dubious in its origins, never truly applicable to Australian conditions, adopted in this Court with apparent disregard for earlier formulations ^[F409] and so seriously unjust as to occasion countless judicial efforts to confine the ambit of its operation by reference to notions that are undesirably complex.

228. Secondly, the rule exists as an exception to the general liability of tortious wrong-doers in the law of negligence which this Court, and other courts, have developed and re-expressed in many significant ways in recent years ^[F410] . The immunity enjoyed by highway authorities is wholly out of harmony with so many other decisions of this Court in the field of negligence that the only substantial argument for adhering to it is respect for established legal authority. Yet that consideration, whilst of paramount importance, is not the sole factor to be given weight in the face of the present applications. Considerations of legal principle and legal policy must also be given due weight ^[F411] . They argue powerfully for change.

229. Thirdly, whilst it is true that a re-expression of the common law would have significant cost implications, imposed retrospectively on an unknown number of highway authorities including the respondents, such implications ought not to be exaggerated. It would still remain for the authority to argue, in the case of its particular statute, that the imposition of civil liabilities is incompatible with its particular statutory functions ^[F412] . Or it could argue that to hold that a duty exists in the particular case is unwarranted in the evidence concerning the resources and obligations of the authority, the steps it has taken to discharge its functions and the alternative priorities faced by it. Or that breach of any duty has not been proved. The re-expression of the liability of highway authorities, simply to remove the anomalous immunity conferred on them, would not impose liability for every personal injury caused, or contributed to, by a defect in a road brought to light by an accident. So far as the tort of negligence is concerned, the only change would be to substitute a duty to take reasonable care ^[F413] . In many cases, the chances of recovery, particularly in a matter involving the non-exercise of statutory powers, would be small ^[F414] . Yet recovery or failure would depend not on a legal immunity or the disputable category of "nonfeasance", but on the ordinary principles of negligence, governing virtually everyone else in society, applied to a statutory body having relevant statutory functions rather than duties.

230. Fourthly, in determining the effect of a change of legal doctrine, the serious inefficiencies inherent in the current law need to be taken into account. Far from discouraging proceedings or promoting certainty or settlement of claims, that law is now so complex as to encourage litigation, the outcome of which turns on elusive points in the evidence and contestable distinctions ^[F415] .

231. Fifthly, and I regard this as critical, the duty of a court is to the law. If a valid statute is enacted with relevant effect, that duty extends to giving effect to the statute, not ignoring it. No principle of the common law can retain its authority in the face of a legislative prescription that enters its orbit with relevant effect. The proper starting point for the ascertainment of the legal duties of a body established by statute is the statute. For the common law to confer upon one form of statutory authority (but not others with like functions and powers) a special immunity that Parliament has not expressly enacted, involves an unprincipled departure from the proper and orthodox legal approach to ascertaining that body's statutory and common law duties.

232. This, in my respectful opinion, was the basic legal flaw in the reasoning in Buckle and Gorringe. An English rule of the common law was simply picked up and applied without any, or any proper, regard to particular Australian statutory contexts. Because the duty of this Court is now (as indeed it was in 1936 and 1950) to accord primacy to the requirements of, and implications in, statutes enacted by Australian Parliaments creating highway (or other) authorities, it is necessary to respond to the applicants' submission with this obligation in mind. It cannot simply be swept aside.

233. The unprincipled and special classification of highway authorities for a common law immunity which the legislature has not granted is impossible to reconcile with the applicable statutory provisions. In so far as the New South Wales Parliament has referred to an assumed "immunity", but not specifically enacted or defined it, its provision does not significantly advance the debate. It will always be open to the Parliament of any State or legislature of a Territory, if it so chooses, to confer a special immunity on highway authorities (and to withhold such immunity from sewerage, gas, electricity or other authorities). However, if this were now done by legislation it would enjoy at least two advantages. It might be expected to define with greater precision and certainty the scope of any such immunity and any exceptions to it. And such immunity would then rest on the authority of elected representatives, not on an anomalous and dubious judge-made rule whose deficiencies are so manifest.

234. Sixthly, also critical to my conclusion, is recognition of the fact that the immunity in question is exceptional. Immunities from legal liability, such as that accorded to highway authorities, represent a departure from the ordinary principle that a person, natural or legal, is accountable in the Australian courts for wrongs done to another member of society ^[F416] . Usually, such accountability is determined by reference to principles of law that apply without discrimination. In Roy v Prior ^[F417] , Lord Wilberforce remarked: "Immunities conferred by the law in respect of legal proceedings need always to be checked against a broad view of the public interest." That is what must now be done.

235. There are undoubtedly some activities which, of their very nature, justify the provision of a legal immunity from suit. However, they are, and should be, closely confined. When challenged, they should be capable of being fully justified by more than an appeal to legal history and past legal authority. When examined, some immunities have been rejected as unsustainable ^[F418] . Others have been questioned and elsewhere overruled ^[F419] . To the extent that an immunity to liability for negligence and nuisance is afforded, exceptionally, to highway authorities, a burden of loss distribution is imposed on the victims of the neglect of such authorities. The immunity obliges those victims to bear the economic, as well as personal, consequences, even of gross and outrageous neglect and incompetence. The survival of the immunity must be tested, not simply by the facts of the present cases but by any circumstance, however extreme and culpable, where a highway authority hides behind the highway rule and claims an immunity from liability for its "nonfeasance" ^[F420] .

236. Where there is doubt about the contemporary content of the common law, it is also appropriate, in my view, to have regard to the fundamental principles of universal human rights ^[F421] . A principle within that body of law states that "[a]ll persons shall be equal before the courts and tribunals" ^[F422] . Of course, there will be exceptions to such absolute equality. But I do not regard the peculiar immunity of highway authorities in Australia as properly falling into such a class.

237. The main impact of the principles of universal human rights upon the development of tort law in this country, as in England and elsewhere, lies in the future ^[F423] . But, in the present case, the offence to fundamental notions of equality of parties before the law, which the anomalous immunity invoked by the respondents occasions, reinforces my conclusion that such immunity can no longer rest on a rule made by the judges.

The issues of duty and breach

238. Approach to duty and breach: The foregoing leads me to my conclusion that neither of the respondents is entitled to rely on the immunity invoked by it by reason of its status as a highway authority. I agree with the joint reasons ^[F424] that, to the extent that Buckle and Gorringe support the existence of such an immunity, they should no longer be followed. To the extent that leave is required, it should be given to permit the reconsideration and overruling of Buckle and Gorringe.

239. These conclusions leave the liability of the respondents to be determined by the ordinary principles of negligence law as applied to a statutory authority with relevant duties and powers ^[F425] . Because this represents a shift in the understanding of the law from that which prevailed at the time of the trials of the respective actions now before this Court, a question arises as to whether fairness requires that the proceedings be returned for retrial in accordance with the law as so expressed.

240. In my opinion, this course is not required. In each proceeding, the applicants recorded their intentions to rely on ordinary principles of negligence (and, in the case of Mrs Ghantous's action, the law of nuisance) freed from the immunity. In such circumstances, the respondents were obliged to consider the eventuality that has now occurred. They elected to call no evidence to justify their respective failures to attend to the suggested defects in the surface and surrounds of the road bridge and path in question in their cases. Retrial would obviously be expensive and inconvenient. In my view, it is open to this Court, in each case, to reconsider the evidence at trial, judging it by reference to the ordinary principles that govern the existence and scope of a duty of care of a statutory body having the powers respectively enjoyed by the present respondents.

241. It will be apparent from earlier reasons considering analogous questions that I am of the opinion that, in determining whether a duty of care exists in the case of a statutory authority, it is necessary to answer three questions and to do so by reference to, amongst other things, the authority's statutory charter. Those questions are set out in earlier cases ^[F426] . They follow, substantially, the approach taken in the three other major common law jurisdictions with which Australian lawyers are most familiar, namely England, New Zealand and Canada.

242. There is, in my view, no incompatibility between the recognition of a private right of action in persons such as the applicants and the legislation affording powers and duties to the respondents of a relevant kind ^[F427] . The issues to be decided, having regard to the statutory powers of the respondent concerned, are therefore: (1) Was the damage to the applicant reasonably foreseeable? (2) Was the relationship between the applicant and the respondent sufficiently proximate? (3) Is it just and reasonable to impose a duty of care in the circumstances of the case?

243. For reasons that are adequately explained in the joint reasons by reference to like concepts ^[F428] , I do not doubt that, both in Mrs Ghantous's case and in that of Mr Brodie, the respective Councils owed the applicants a duty of care. In the former case that duty was to construct the footpath in question and to keep it reasonably safe for ordinary use. In the latter case it was, relevantly, to afford specific warnings of the capacity of the bridge on which Mr Brodie was injured and the truck damaged, and to take reasonable care in the maintenance and upkeep of the bridge including periodic inspections involving reasonable steps to look for such dangers as might reasonably be expected to arise in its use ^[F429] .

244. Ghantous v Hawkesbury City Council: Accepting the existence of such a duty of care, of the stated scope, I am not convinced that the evidence called for Mrs Ghantous established a breach of that duty in her case. Mrs Ghantous did not establish that the original construction of the footpath was negligent; that its design or state at the time of the accident was in any way inappropriate or a cause of her accident or that the respondent's exercise of its planning powers was defective.

245. A body such as the Council has little effective control over the use by pedestrians of a footpath and its surrounds, once created. Such structures do not have an infinite lifespan. They are subject to deterioration by reason of the weather, of ordinary traffic use, of subterranean changes, of public utilities that lawfully disturb them and other persons who unlawfully do so. The rate of deterioration will vary. Necessarily it is unpredictable and largely out of the control of a body such as the respondent.

246. Whereas Mrs Ghantous alleged that the area beside the footpath was rendered "hazardous" by a combination of erosion and increased foot traffic, something more than the fact that she fell would be necessary to convert the powers which the respondent Council enjoyed into a duty to safeguard a pedestrian such as Mrs Ghantous, rendering the Council liable to her because she momentarily took a false step. That "something" might be evidence of poor original design, a history of previous accidents or complaints or deterioration that was judged manifestly dangerous. None of these elements was established in Mrs Ghantous's case. Nor did the primary judge's remark that "[i]t is regrettable that the Council's program of maintenance did not operate to keep the footpath in less hazardous condition" ^[F430] represent a finding of negligence by the Council. It was no more than a comment that, in retrospect and with the wisdom of hindsight, it was a pity that the subsidence next to the path had not been noticed and cured before Mrs Ghantous took the step that led to her fall.

247. It could not reasonably be expected in these circumstances that a local government authority in the position of the Hawkesbury City Council, exercising its powers reasonably, would be aware of particular dangers inherent in the verge to the footpath off which Mrs Ghantous momentarily stepped before she fell. I would not rest my conclusion in her case upon any enlarged assumptions about a pedestrian's need for vigilance for his or her own safety. I do not agree in the latter-day enthusiasm for the notion of contributory negligence that is abroad ^[F431] . It goes against the steady trend of common law authority in this Court and indeed in Australian courts back to colonial days ^[F432] to exaggerate the expectations that manifest themselves in various forms of disqualification for suggested contributory negligence ^[F433] . Pedestrians and other highway users exist in every variety of physical and mental ability and acuity. Roadways and footpaths are used in every condition of light and all circumstances of weather. The reason Mrs Ghantous fails, in my view, is not any lack of attention on her own part. I respectfully regard that explanation as unconvincing and unreasonable. The real reason she fails is that no breach of duty is shown on the part of the local authority which she sued.

248. Local authorities are not insurers for the absolute safety of pedestrians or other users of roads and footpaths. To recover, a person in the position of Mrs Ghantous must establish a want of reasonable care causing his or her injuries. Her mishap was simply an accident. Her damage was not shown to be the result of negligence on the part of the respondent. No other basis was made out upon which she could succeed.

249. Brodie v Singleton Shire Council: So far as Mr Brodie and his company are concerned, I agree with the conclusion of the joint reasons that the primary judge's decision, holding the Singleton Shire Council liable, is readily supportable by the application to the facts of the ordinary principles of negligence viewed in the context of the Council's applicable statutory powers ^[F434] . I agree with the reasoning contained in the joint reasons and with the result that follows.

Orders

250. It follows that I concur in the orders proposed in the joint reasons.