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: Hayne 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 J

Hayne JCallinan 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:
Hayne J

251. The facts and circumstances giving rise to these applications are set out in the reasons of Callinan J. I need not repeat them.

252. The central question said to be raised by the applications is whether the Court should reconsider the common law immunity of highway authorities from civil suit in cases of non-feasance. More particularly, should the Court now depart from its earlier decisions in Buckle v Bayswater Road Board ^[F435] and Gorringe v The Transport Commission (Tas) ^[F436] ? As these reasons will seek to demonstrate, describing the question by reference to "immunity", and only by reference to highway authorities, obscures some important questions. At its heart, the question is one about the duties of statutory authorities to exercise their powers and when such duties are to be found. To get to that question, it is necessary to examine the so-called "immunity".

Early English developments

253. The nature and extent of what is said to be the immunity of highway authorities can only be understood against its historical background. That history can be traced to English common law principles about the repair of highways, most importantly the principle that "[b]y common law and of common right, the inhabitants of the parish at large are bound to repair the highways" ^[F437] . This obligation to repair was enforced by criminal proceedings on indictment ^[F438] because the failure to repair was a common law misdemeanour ^[F439] . The indictment was not preferred against named individuals but against the inhabitants of the parish generally ^[F440] .

254. Bridges were treated a little differently. At common law no one was obliged to make a bridge and the common law in this respect was affirmed by Magna Carta ^[F441] . The liability to repair bridges fell upon the county, not the parish ^[F442] . Again, however, the obligation to repair was enforced by criminal proceedings on indictment: "A parish as to highways and a county as to bridges are on precisely the same footing." ^[F443]

255. As the needs of English society changed, particularly in the nineteenth century, the legislature intervened to make further provision for the repair of highways. Of the several Acts which dealt with highways ^[F444] , reference need be made to only The Highway Act 1835 (UK) 5 & 6 Wm 4 c 50. Its long title described it as "[a]n Act to consolidate and amend the Laws relating to Highways in that Part of Great Britain called England". By that Act ^[F445] provision was made for summary proceedings for enforcement of the obligation to repair (if the obligation was not disputed) ^[F446] . These summary proceedings were criminal in nature but led to an order for repair. If the obligation to repair was disputed, a bill of indictment was to be preferred ^[F447] . A fine imposed upon conviction was to be applied to the repair of the highway ^[F448] .

256. By the nineteenth century (if not before) it was clear that interfering with free passage over a public highway was a common nuisance punishable on indictment. The crime of common nuisance, so far as it related to highways, was of two kinds: positive by obstruction, and negative by want of reparation, that is, for want of repair ^[F449] . Procedures by indictment, however, afforded no remedy to a person who suffered injury because of the state of the highway or bridge, so it is necessary to look at the development of the civil, not criminal, law in this regard. Many of the nineteenth century cases in which claims for damages were made by those injured as a result of conditions on or near a highway made allegations of negligence, and the discussion in the judgments is of issues of negligence and vicarious responsibility ^[F450] . Not all of the cases of that time were, however, framed in that way. Over time, claims for personal injury because of alleged obstruction on or near a highway, brought against persons other than the relevant highway authority, came to be framed more often in nuisance ^[F451] .

Nuisance

257. Despite the radical difference between criminal proceedings to punish an act or omission which was a matter of public concern, and civil proceedings to recover damages for private loss, the language of nuisance was used in both contexts. It is, nevertheless, important to recall that the crime of common or public nuisance and the tort of nuisance were and are distinct. There can be no automatic transposition of the learning in one area to the other. It has been said that the tort of nuisance was set on the wrong track by "an incautious obiter dictum which was let fall in the Common Pleas in 1535" ^[F452] . In its origins, nuisance was a tort "directed against the plaintiff's enjoyment of rights over land" ^[F453] . It lay for interference with rights incidental to the occupation of land and, among other things, for interference with easements.

258. In 1535, in an action for blocking a highway, Fitzherbert J gave an illustration which was to be taken by later generations as warranting the conclusion that an action for nuisance can be maintained if personal injury is sustained as a result of an obstruction in a public highway. His Lordship said ^[F454] :

"As if a man make a trench across the highway, and I come riding that way by night, and I and my horse together fall in the trench so that I have great damage and inconvenience in that, I shall have an action against him who made the trench across the road because I am more damaged than any other man."

When, and how, this dictum was taken up and applied in actions for nuisance is traced in articles by Newark ^[F455] and Spencer ^[F456] .

259. However this may be, by the late nineteenth century it was accepted that, because it was a common or a public nuisance unreasonably to obstruct or hinder free passage of the public along the highway, a private individual had a right of action in respect of that nuisance upon proof of particular damage beyond the general inconvenience and injury suffered by the public ^[F457] . The decisions all concerned cases of obstruction ^[F458] ; none was a case of nuisance by want of reparation. This was despite the fact that, in 1834, it had been held ^[F459] that a declaration disclosed a sufficient cause of action against a corporation when it alleged: first, that the corporation was under a legal obligation to repair a pier and certain sea banks; secondly, that the obligation was a matter of so general and public concern that an indictment would lie against the corporation for non-repair; thirdly, that the works were out of repair; and lastly, that the plaintiff had suffered special damage. Yet this was not applied to highway authorities. Despite the general availability of an action in what now would be seen as nuisance, those responsible for repair of highways were treated separately. It is necessary to say something about how and why this developed.

260. In 1788 it had been held that an individual could not bring an action on the case against the inhabitants of a county for an injury sustained in consequence of a county bridge being out of repair ^[F460] . To modern eyes the decision owes much more to the difficulties seen in bringing a civil action against an unincorporated group of unidentified individuals sued only as "The Men dwelling in the County of Devon" than it does to any proposition about the position of highway authorities. Nevertheless in later cases, where there was no difficulty about parties, Russell v The Men of Devon was taken to decide that no action would lie against a highway authority for injury suffered from a bridge or highway being in disrepair ^[F461] .

261. Later in the nineteenth century, as statutes created corporate highway authorities, it was held that those corporations were not liable for damages for injury resulting from a want of repair ^[F462] . By the late nineteenth century the principle was expressed in terms of "non-feasance". It was said to be that ^[F463] :

"It must now be taken as settled law that a transfer to a public corporation of the obligation to repair does not of itself render such corporation liable to an action in respect of mere non-feasance. In order to establish such liability it must be shewn that the legislature has used language indicating an intention that this liability shall be imposed."

Three years earlier, the Privy Council had said ^[F464] :

"[I]n the case of mere nonfeasance no claim for reparation will lie except at the instance of a person who can shew that the statute or ordinance under which they act imposed upon the Commissioners a duty toward himself which they negligently failed to perform." (emphasis added)

262. It can be seen, then, that the rule about non-feasance was one which depended upon the conclusion that, in the absence of specific statutory provision, a statutory authority owed no duty to an individual to exercise its powers to avoid injury to the individual. Other considerations arose if the authority exercised its powers but did so in a way which caused injury.

263. Perhaps it was the developments in claims against persons other than highway authorities which led to the decision, in 1879, in Borough of Bathurst v Macpherson ^[F465] . A claim for damages for personal injuries alleging negligence and nuisance was made against the borough. The Privy Council dismissed an appeal against the decision of the Full Court of the Supreme Court of New South Wales. It decided that the claim in nuisance could be maintained. The advice of the Privy Council contains many statements which were later to be seized on by those making claims for personal injuries suffered as a result of the state of a road or of works on or near a road.

264. The basis of the decision in the case is not entirely clear. Much attention was given in later cases to explaining it ^[F466] . Perhaps the better view is that the Privy Council took two steps in reasoning to the conclusion reached. First, it decided that, the borough having the care and management of the roads of the municipality and power to repair them, it was under a duty to keep the works it created in such a state as to prevent their causing a danger to passengers on the highway ^[F467] . Secondly, it followed, so their Lordships concluded, that the corporation being obliged to repair the roads, it was "liable not only to be indicted for a breach of that duty, but to be sued by anybody who could shew that by reason of such breach of duty he had sustained particular and special damage" ^[F468] .

265. For a time the decision was taken to stand for a general proposition that an action in nuisance would lie against a highway authority for any obstruction to, or interference with, a highway no matter whether it resulted from misfeasance or non-feasance ^[F469] , notwithstanding that earlier decisions had maintained the distinction between misfeasance and non-feasance ^[F470] . This understanding of the case, therefore, represented a very sharp departure from earlier authority. Moreover, Borough of Bathurst was later to be seen as depending upon a distinction drawn in the decision between the highway and artificial works introduced to the highway ^[F471] . The basis of this distinction between the highway, and artificial works introduced on to the highway, is obscure. It has been invoked from time to time ^[F472] but it is a distinction that is by no means easy to draw.

266. A more frequently applied distinction that might be seen to support the result at which the Privy Council arrived in Borough of Bathurst came to be drawn between the capacities in which an authority having highway and other functions acted ^[F473] . Originally the liability of an authority, like a water or sewerage authority, which installed part of its undertaking in a highway, depended upon its owning or controlling the structure, or upon an implication discovered in the particular statute which permitted it to install the structure ^[F474] . Such an authority was treated as committing or continuing a public nuisance obstructing the highway. The distinction was, however, seen to depend upon the difference in functions performed, not upon the separate identity of those who performed them. Accordingly, it became important to identify the capacity in which an authority acted in introducing a structure in or near the road ^[F475] . Perhaps it is this distinction which found imperfect echoes in the distinction between the highway and artificial structures.

267. Borough of Bathurst should be seen as anomalous and standing altogether apart from any coherent development of the law in this area. In Buckle ^[F476] , Dixon J said "[f]ew decisions have proved the source of so much error" and "[a] case with such a history [as Borough of Bathurst] cannot be regarded as providing a safe link in any chain of legal reasoning". This is because there are at least two difficulties that may be presented by the reasoning in Borough of Bathurst. The first lies in the conclusion that the borough was under a duty to repair the road (or perhaps the drain which it had built). It by no means automatically follows from the fact that a statutory authority has power to do something that it has a duty to exercise that power, yet the distinction between power and duty may be thought to have been elided in that case. Secondly, the apparently universal proposition that an action for damages lies against a public authority which has failed to perform its public duty at the suit of anyone who has suffered special damage may be cast too widely.

Application of highway law in Australia

268. Given the historical basis of the English law relating to highways, it now seems obvious that application of that law to the colonies in Australia was not inevitable. Colonial conditions were very different from those which obtained in England, both when the colonies were established, and in earlier centuries. In the early twentieth century, however, the importance of those differences may have been much less obvious. Whether or not that is so, the nineteenth century decisions in Australia, and in the Privy Council on appeal from decisions of the Australian colonies, proceeded from the premise that the English law relating to highways and the liability of highway authorities should be applied here ^[F477] . It is necessary in this regard, however, to notice one of the earliest decisions of this Court, Miller v McKeon ^[F478] , for it might be thought to have challenged that premise. Griffith CJ said that ^[F479] :

"Reference was made during argument to a great number of cases dealing with the law relating to highways in England and the doctrines that were to be applied to them. There is certainly an identity in name between highways in England and highways in this country, but the similarity is to a great extent in name only".

269. Upon closer examination, however, it can be seen that the decision in Miller v McKeon did not challenge the general premise I have identified. Rather, the case concerned the nature and extent of the duty which a highway authority owes, when first building a road, to make it safe to use. In his reasons, Griffith CJ, with whom Barton J agreed, referred to the distinction between misfeasance and non-feasance ^[F480] and concluded that the plaintiff's complaint in the case concerned the way in which the road was originally laid out and built. It was not a complaint about anything later done (or not done) to that road. The question raised in the case was, therefore, seen to be whether in building the road the government had used "such care to avoid danger to persons using it as is reasonable under all the circumstances" ^[F481] . That question was resolved against the injured plaintiff.

The decisions in Buckle and Gorringe

270. The decisions in both Buckle and Gorringe must be understood against the background of the historical matters I have mentioned. In Buckle, all three members of the Court who sat in the case accepted that a public authority having powers of care and maintenance of highways is not, by reason merely of the existence of those powers, liable for damages resulting from non-feasance ^[F482] . Despite accepting this general proposition, the Court divided in its application to the particular case. It is important to identify the nature and bases of those differences.

271. The majority (Latham CJ and McTiernan J) held that the plaintiff should recover. Their Honours reached that conclusion by different paths and this presents real difficulties in the way of identifying the ratio of the case ^[F483] . Latham CJ held ^[F484] that the liability of the defendant depended upon the source of the authority that the defendant had for constructing the drain (the breakage in which caused the hole in to which the plaintiff fell). His Honour concluded that if the defendant acted, wholly or partly, as a drainage authority rather than as a highway authority, it owed a duty to individuals to keep the drain in repair. McTiernan J, by contrast, based his conclusion on Borough of Bathurst, and the distinction said to be drawn in that case between the highway and other artificial structures in or on the highway ^[F485] . He concluded that the defendant owed a duty to repair the drain as an artificial structure. Both Latham CJ and McTiernan J treated it as clear that, but for the immunity rule, the defendant would be held liable. Each focussed upon the application of what were seen as exceptions to the general immunity.

272. Dixon J, who dissented, took a different path. He accepted that "[i]t is well settled that no civil liability is incurred by a road authority by reason of any neglect on its part to construct, repair or maintain a road or other highway" ^[F486] . It is often overlooked, however, that his Honour based this conclusion not upon some immunity from liability, but upon the proposition that a road authority owed no duty to undertake active measures, whether of maintenance, repair, construction or lighting. Immediately after stating the general proposition that I have set out, he went on to say ^[F487] :

"Such a liability may, of course, be imposed by statute. But to do so a legislative intention must appear to impose an absolute, as distinguished from a discretionary, duty of repair and to confer a correlative private right (Cf City of Vancouver v McPhalen ^[F488] )." (emphasis added)

273. Further, a little later in his reasons, Dixon J said ^[F489] :

"But while a road authority owes to the members of the public using a highway no duty to undertake active measures whether of maintenance, repair, construction or lighting in order to safeguard them from its condition, on the other hand it possesses no immunity from liability for civil wrong." (emphasis added)

Thus the focus of the reasons of Dixon J was upon what was the duty of a highway authority, and whether a breach of that duty was demonstrated. In particular, was it shown that the defendant had been "the active agent in causing an unnecessary danger in the highway" ^[F490] or had been in breach of some positive duty to repair? As to the former of these considerations, his Honour said ^[F491] :

"The improper nature of the original act of the road authority must always be the foundation of the complaint against it. Cases in which but for continual subsequent safeguards the work actively done by the road authority would make the highway dangerous must be distinguished from the very different class of case in which the operations of the road authority put the highway in a condition perfectly proper and safe, but liable in the course of time through wear and tear and deterioration to become unsafe. Whenever an artificial road surface is provided, neglect to maintain it is likely to result in its destruction by wear and weather. Its last condition may be expected to be worse than its first. But these considerations do not throw upon the road authority which fails to maintain a road any civil liability for the consequences, although at the time of construction they might have been foreseen. If, judged according to the standards of the time and the circumstances then prevailing, the design and execution of the work were not improper or unsafe, the development of a defective or dangerous condition of the highway is to be attributed to the failure to maintain or repair, which involves no civil liability for particular damage. It cannot be regarded as a dangerous condition 'caused by', because necessarily resulting from, the original construction of the roadway." (emphasis added)

As to the second question, of breach of positive duty, Dixon J distinguished between the position of a road authority "in relation to the defective condition of a road, street, bridge, footpath, or other place over which there is a public right of passage" and "the position of a water, sewerage, gas and other like authority" ^[F492] in relation to the defective condition of parts of its undertaking that were maintained by legislative authority in a highway so as to form part of the road. In accordance with the then accepted understanding of the position of highway authorities, he concluded that a highway authority owed an individual road user no duty to repair the road. Of the other kinds of authority he said ^[F493] :

"The liability of such a body depends, of course, ultimately on the effect of the statute under which it acts. But if its powers of interference with the roadway extend to maintenance and repair of the object it has placed there, then, as a rule, it will be liable for the consequences if that object is negligently allowed to fall into disrepair. The reason for this liability in the case of such a body may be found in its ownership or control of the structure in the highway, or in the implications discoverable in the statute." (emphasis added)

Dixon J held in Buckle ^[F494] that the drain was made for roadway purposes and installed in exercise of the defendant's powers as a highway authority with due care and skill and without negligence in design or execution of the work. It followed, in his Honour's view, that the defendant had breached no duty it owed the plaintiff.

274. The plaintiff in Gorringe did not challenge the general proposition that a highway authority is not liable for non-feasance ^[F495] . He put his case in three ways ^[F496] : that the defendant Transport Commission was under an absolute duty to maintain the highway, and that a case of misfeasance was established on either of two bases. The detail of the contentions about misfeasance is not important, as all three members of the Court rejected them.

275. The contention that the Commission was under a duty to maintain the highway, with a correlative right in a person injured by a defect in the highway to complain of the failure in the duty, was seen as depending upon the provisions of s 8 of the Roads and Jetties Act 1935 (Tas). That section provided that State highways were vested in the Crown, but were under the control and direction of the Transport Commission. It further provided, by sub-s (2), that except as otherwise provided, the Commission should cause all State highways and subsidiary roads to be maintained "as it shall direct". The Court held that this provision imposed no duty on the Commission which would found a cause of action at the suit of the plaintiff. Although the action was framed in negligence, much of the argument and the reasons of the members of the Court was expressed in terms redolent of a claim for breach of statutory duty. It will be necessary to return to these issues.

276. Latham CJ construed s 8 of the Roads and Jetties Act as imposing no duty on the Commission, in part because the words "as it shall direct" "show that it intended to confer upon the commission authority to maintain roads in such measure, degree and manner as the commission shall determine" ^[F497] . Dixon J said ^[F498] that to interpret s 8(2) as imposing a duty with a correlative right to sue for damages:

"would be contrary to the principle upon which provisions imposing upon highway authorities a duty of repair have been construed. At common law highway authorities have never been subject to a private right of action for neglect to maintain or repair highways under their control notwithstanding the existence of a general duty to repair and maintain. They have been liable only for negligence in the course of the exercise of their powers or the performance of their duties with reference to the maintenance and reparation of highways. Statutes directing such authorities to maintain and repair roads, streets and bridges prima facie are not to be understood as conferring private rights of action in derogation from this principle."

277. Fullagar J traced the development of the general principle that a highway authority is not liable for non-feasance. His Honour noted ^[F499] that:

"in certain cases the argument that the defendant has been guilty of no more than non-feasance has been put as if it were an affirmative defence - as if it were open to a highway authority to say: 'I admit that I have been guilty of a breach of a legal duty which is prima facie enforceable by action, but my fault was that I omitted to do something and that excuses me.'"

This, as his Honour implied, is to misstate the effect of the cases, which established two principles ^[F500] :

"(1) that at common law no person or persons, corporate or unincorporate, is or are subject to any duty enforceable by action to repair or keep in repair any highway of which, whether at common law or by statute, he or they or it has or have the management and control, and (2) that if a duty to repair or keep in repair a highway or highways is imposed by statute on any such person or persons, that duty is not enforceable by action unless the statute makes it clear by express provision or necessary implication that the duty is to be enforceable by action at the suit of a person injured by its breach."

278. The two rules Fullagar J identified did not themselves exclude liability for negligence in control and management of roads. Notwithstanding the development of the law of negligence in the late nineteenth century, particularly in Heaven v Pender ^[F501] , that further step was taken ^[F502] . As Fullagar J said ^[F503] , "[t]he theorem that there was no duty to repair enforceable by action acquired a corollary. There was no duty enforceable by action to be careful in control and management." But as Fullagar J also pointed out ^[F504] , it seemed to be accepted that the rules applied only to highway authorities (not authorities responsible for matters such as drainage, sewerage or tramways) and applied "even to a highway authority only in respect of the actual roadway itself and such artificial structures in and about the roadway as can fairly be considered 'part of the road' or 'made for road purposes' or 'made for roadway purposes'".

279. In neither Buckle nor Gorringe was there any challenge to the proposition that, absent specific statutory provision to the contrary, a highway authority is not liable for damage resulting from non-feasance. But as the judgments of Dixon J in both Buckle and Gorringe and the judgment of Fullagar J in Gorringe reveal, the questions which lie behind that general proposition about immunity are in fact questions about the duties of a highway authority. These questions include whether the statute which governs the activities of the authority imposes any relevant duty on the authority to perform work (as opposed to giving it powers to do so) and whether, if there is a statutory duty to do work or maintain the roads, breach of that statutory duty will found a private action at the suit of an individual who has suffered loss.

280. The answers which were given to these questions were seen, in Gorringe, to be affected by the existence of the general rule about immunity. That rule was seen as providing a presumption against construing the relevant statute as creating a private right of action. As Latham CJ said ^[F505] of the provisions in question in Gorringe, "one would expect much clearer language if Parliament intended to alter ... a well-established legal principle of such importance". In this respect highway authorities were seen as occupying a special position, the presumption in the case of a body like a tramway authority being, in the words of Dixon J ^[F506] , "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" ^[F507] .

281. Subject to one qualification, these are questions which would arise in considering the application of well-accepted principles governing whether an action for breach of statutory duty will lie ^[F508] . They were seen as questions that turned on the construction of the statute which regulated the conduct of the relevant authority. The qualification which must be recognised, however, is that the immunity was treated as providing a sufficient basis for finding that no action for breach of statutory duty would lie.

282. The proposition that a highway authority owes no common law duty, enforceable by action at the suit of an injured party, to be careful in its control and management of the roads was obviously problematic at the time Gorringe was decided. When this proposition was established in the late nineteenth century, negligence was, as Fullagar J noted, undergoing considerable development. That development continued at increasing speed throughout the twentieth century. Especially is that so in relation to statutory authorities. Both the theorem, of no duty to repair which is enforceable by action, and the corollary, of no duty to be careful in care and management which is enforceable by action, must be reconsidered against those developments.

Duty of care in exercising statutory powers

283. Of the many developments in the law of negligence that have occurred in the course of the nineteenth and twentieth centuries, it is necessary to consider those that most directly concern public authorities. In 1878, Lord Blackburn said, in Geddis v Proprietors of Bann Reservoir ^[F509] :

"I take it, without citing cases, that it is now thoroughly well established that no action will lie for doing that which the legislature has authorized, if it be done without negligence, although it does occasion damage to anyone; but an action does lie for doing that which the legislature has authorized, if it be done negligently." (emphasis added)

284. Thus, it is not disputed that a highway authority owes a duty of care in the actual exercise of its powers. In that respect a highway authority does not stand apart from any other repository of statutory powers:

"[W]hen statutory powers are conferred they must be exercised with reasonable care, so that if those who exercise them could by reasonable precaution have prevented an injury which has been occasioned, and was likely to be occasioned, by their exercise, damages for negligence may be recovered" ^[F510] .

285. The duty to act carefully in the exercise of statutory powers was, for a time, assumed, without any close examination being given to its source. In Miller v McKeon ^[F511] , the members of the Court appear to have considered it to be self-evident that, if the government of New South Wales undertook work, it was duty bound to do so carefully and, if it did not, a person suffering injury as a result had a right of action ^[F512] . In this, and perhaps some other cases of the time, the assumption may stem from the provisions of the relevant legislation providing for suits against the Crown or government which said that the rights of parties "shall as nearly as possible be the same ... as in an ordinary case between subject and subject" ^[F513] . But not all cases against public authorities can be understood in this way because in many of them, Crown suits legislation was not engaged.

286. The question in the present cases is whether a highway authority should now be held to owe a common law duty of care to those who suffer injury because it did not exercise its powers. Whether a duty of that kind should be found raises other questions: when is such a duty to be found; what is its scope? The question is not, and never has been, whether a highway authority, guilty of a breach of a duty which prima facie is enforceable by action, should be entitled to defend that claim by saying that the fault was one of omission rather than commission.

287. Early in the development of negligence, it was recognised that acts of omission could be every bit as significant as acts of commission. In 1856, Alderson B said that ^[F514] :

"Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do."

Yet the classification of events as misfeasance or non-feasance, especially in cases involving public authorities, remained important. The influence of the distinction can be seen clearly in the dictum of Scrutton LJ in Sheppard v Glossop Corporation ^[F515] that "it is not negligent to abstain from doing a thing unless there is some duty to do it". It can also be seen in the decision of the House of Lords in East Suffolk Rivers Catchment Board v Kent ^[F516] . There, the statutory authority, which had power but no statutory duty to perform certain works, was held not liable for carrying out those works. This was despite the works being carried out so inefficiently that the inundation of the plaintiffs' land was prolonged beyond what would have happened if the work had been done properly (as the inundation did not endure beyond what would have happened had the authority done nothing at all).

288. At the most basic level, the distinction between misfeasance and non-feasance can be seen as a particular reflection of the fact that "[f]rom the time of the Year Books the common law has drawn a distinction between damage which is the result of a positive act and damage which is the consequence of a failure to act" ^[F517] . Thus, in cases of omission, the question which must always be asked is why was there a duty to act? At least since Sutherland Shire Council v Heyman ^[F518] it has been clear that the ordinary principles of the law of negligence apply to public authorities with the result that ^[F519] :

"they are liable for damage caused by a negligent failure to act when they are under a duty to act, or for a negligent failure to consider whether to exercise a power conferred on them with the intention that it should be exercised if and when the public interest requires it". (emphasis added)

But that leaves unanswered the questions when and why should a duty to act be found? Those are the underlying questions in these cases.

A duty to act?

289. There can be no duty to act in a particular way unless there is authority to do so. Power is a necessary, but not a sufficient, condition of liability. But the power to act in a particular way, and the fact that, if action is not taken, it is reasonably foreseeable that damage will ensue, have hitherto not been held sufficient to give rise to a duty to take that action. It is, however, far from clear what more must be added to power and foresight to found a conclusion that a statutory authority owes a duty of care, the satisfaction of which requires it to take positive action.

290. Of course, the inquiry must begin from a consideration of the legislation which regulates the activities of an authority. The consideration of that legislation will often reveal that there is no statutory duty to take the positive action in question. Even if there is a statutory duty to take action, there may be no private action for damages for breach of that statutory duty. If that is so, when and why should the common law supply that duty?

291. Because the ordinary principles of the law of negligence apply to statutory authorities, a duty of care requiring positive action will be found in those cases where a private person would be under such a duty, for example, as employer or manufacturer of goods. Difficulties emerge, however, when it is sought to find a duty of care requiring a statutory authority to take positive action in cases where the relationship between authority and plaintiff is only analogous to some recognised relationship giving rise to such a duty.

292. Thus a duty to act will be found to exist if the authority and the injured plaintiff stood in the relationship of occupier and entrant as would be the case when someone visited its offices. But arguing for the existence of a duty of care in different circumstances, said to be analogous to those of occupier and entrant, requires attention to the closeness of the analogy which it is sought to draw. The imposition of a duty on a private occupier to act to avoid foreseeable risk of injury owes much to the control which the occupier has not only over the state of the land, but also over whether (or over the terms on which) a person may enter and remain on the land. An authority will often not have that latter kind of control over its facilities even if it does have the former. Indeed there will be cases where it has neither.

293. Similarly, if an authority makes a negligent misstatement to an inquirer, it may be that the authority will be seen to have had a duty to take reasonable care about its statement ^[F520] . The imposition of a duty in this kind of case owes much to the reliance which the recipient places upon the maker of the statement. Again, analogies may be drawn in other circumstances where it might be said that a user of a public facility relied on an authority. Again, however, care must be taken in relying on such analogies.

294. Finally, the special dependence and vulnerability of an injured person upon a party alleged to owe a duty of care has also been held to give rise to a special, non-delegable, duty to ensure that care is taken ^[F521] . Again, it may be said that questions of special dependence or vulnerability are relevant in considering the position of a statutory authority ^[F522] . Again, however, the analogy with private persons must be examined. It may not always be wholly apt.

295. In all of the respects in which I have said analogies may be drawn between the position of a private person owing a particular kind of duty and the position of a statutory authority, the difficulties with such analogies largely stem from two features. First, statutory authorities are bodies of limited powers, established for the performance of functions or the provision of services to which all, or large sections, of the community may resort. Second, they are bodies of finite financial resources, yet they cannot readily withdraw from their central activity of performing particular functions or providing particular services.

Analogies with occupiers

296. It is clear that there are some circumstances in which a statutory authority which has the control and management of land will owe a duty of care to those who use it. So much was held in Nagle v Rottnest Island Authority ^[F523] and not disputed in Romeo v Conservation Commission (NT) ^[F524] . What remains open to debate is not only the source and the extent of that duty of care, but also the circumstances in which a duty arises.

297. In Aiken v Kingborough Corporation ^[F525] , the Court held that a statutory authority, in which "the control and management" of a jetty was statutorily vested ^[F526] , was liable for damages for personal injuries because it did not take reasonable steps to warn of a cavity between a pile and the decking into which the plaintiff fell. Three members of the Court (Latham CJ, Starke and McTiernan JJ) considered themselves bound by the decision of the Privy Council in R v Williams ^[F527] to hold the authority liable for negligence.

298. For my own part, I doubt that R v Williams stood for a proposition that required that conclusion. The question before the Judicial Committee in R v Williams was described ^[F528] as being "whether there was a breach on the part of the Executive Government of that duty which the law would have cast upon private persons maintaining the staiths or wharf and inviting ships to visit them in the same manner in which the Executive Government are shewn to have done". The formulation of the question owes much to the provisions of the Crown Suits Act 1881 (NZ) which required that a claim against the Executive Government be founded upon or arise out of a wrong done in, upon, or in connection with a public work for which cause of action a remedy would lie if the person against whom it could be enforced were a subject ^[F529] . It was, therefore, a case that turned upon the provisions of the Crown Suits Act and the obligation which a private operator of a wharf would owe to a user. It did not hold that, apart from the Crown Suits Act, the Executive Government owed a duty of care which required it to act to remove dangers to users of the facilities.

299. In Aiken, Dixon J treated the statutory authority as occupier of the jetty: "[t]he control and management of such a structure spells occupation" ^[F530] . His Honour expressed the relevant principle in very general terms. He said ^[F531] :

"The nature of the body as well as of the place must be considered, but, speaking generally, unless some other intention can be collected from the statute, a duty of care for the safety of those using the place must, I think, be cast upon the corporation or trustees by the very situation in which the statute has put them. They are in charge of a structure provided for the use of people who must, in using it, rely upon its freedom from dangers which the exercise of ordinary care on their own part would not avoid. Unless measures are taken to prevent it falling into disrepair or dilapidation or becoming defective, or if it does so, to warn or otherwise safeguard the users from the consequent dangers, it will become a source of injury. The body to which the statute has confided the care and management of the place alone has the means of securing the users against such injury, the risk of which arises from continuing to maintain the premises as a place of public resort and from the reliance which is ordinarily placed upon an absence of unusual or hidden dangers by persons making use of structures or other premises provided for public use."

If the principle which is to be applied were as broad as this, a highway authority having care and management of a road would, subject to questions of breach and causation, be liable for failure to repair it. More recent cases have, however, approached the problem differently.

300. In Schiller v Mulgrave Shire Council ^[F532] , Barwick CJ identified the source of the duty as the "statutory power and duty of care, control and management and not merely the occupation of land". But it is only in Schiller that the existence of a statutory power to take steps which would have avoided the harm which the plaintiff suffered was seen as reason enough to impose a duty of care on the authority to take those steps. In the other cases, some further factor was identified as necessary to the conclusion that a duty should be found. In Aiken, that further factor was the analogy drawn with the position of a private occupier of land.

301. In Nagle, it was said that ^[F533] :

"the basis for holding that the Board came under a duty of care may be simply stated: the Board, by encouraging the public to swim in the Basin, brought itself under a duty of care to those members of the public who swam in the Basin" ^[F534] .

302. The reference in Nagle to the encouragement which the Board gave to the public to swim in the Basin must be understood in the context in which it appears. Consonant with the then state of authority, the majority in Nagle was concerned to identify whether there was a relationship of proximity between the Board and those who lawfully visited the island and resorted to the Basin for swimming. Their Honours concluded ^[F535] that there was a generalised duty of care to take reasonable steps to avoid foreseeable risk of injury. The duty was held to be owed to members of the public who resorted to the Basin to swim. The majority based this conclusion upon a combination of factors: classifying the Board as occupier of the Reserve; the Board's statutory duty to manage and control the Reserve for the benefit of the public; and the encouragement which the Board gave to members of the public to resort to the Basin to engage in the activity in the course of which the plaintiff sustained injury. The concession that the respondent in Romeo owed a duty of care reflects the fact that the same features were present in that case.

303. The analogy between a statutory authority having care and management of a structure or facility, and the private occupier of land, is imperfect. Both have power to control the state of the place to which others resort. Both may, in that sense, be said to have the care and management of the place and it may very well be that it is only the owner or the statutory authority that has power to remedy any defects in, or remove hazards from, the place or facility in question. But unlike the private owner, the statutory authority cannot wholly bar access to the facility it controls. The public commonly have access to it as of common right. The statutory authority can warn of hazards but, unlike the private occupier, the statutory authority cannot shift responsibility for the detection and avoidance of hazards by exacting special terms from those who enter. The private occupier of land, whether for reasons of economy or ease of mind, may choose permanently to bar access to a dilapidated building rather than repair it. But that choice is denied to the public authority. It cannot permanently bar access to the facility it controls, or at least it cannot do so as readily as can the private owner.

304. Moreover, in most cases the private owner of land will be relatively easily able to inspect that land for sources of danger to likely entrants. The occupier of large remote areas of land confronts much less likelihood of entry by others than the occupier of smaller areas in more frequented parts of the country. But a statutory authority, particularly a highway authority, may be responsible for the care and management of a diverse group of facilities that are spread widely. Although it will ordinarily have employees, they may not be numerous or skilled enough to detect risks. The task of inspecting all of the facilities for possible sources of danger will often be very large. Thus, if analogies are to be drawn, they are even less apt in the case of roads than they may be in relation to a confined, relatively small, structure like a jetty. Roads cannot readily be enclosed. Inspection of roads is a much larger task than inspecting a jetty. Moreover, it cannot be assumed that an authority will always be provided with money enough to employ those who would be needed to carry out the necessary inspections and it, unlike the impecunious private owner of land, cannot resolve the difficulty by selling the facility.

305. Account must be taken of these differences from the position of a private occupier of land in deciding what duty of care a statutory authority owes.

Reliance and vulnerability

306. Reference has been made in some cases to the reliance which a plaintiff, or a class of which the plaintiff was a member, may be supposed to have placed in a defendant taking reasonable care ^[F536] . Reference has also been made to the plaintiff's vulnerability and incapacity to take steps to prevent injury ^[F537] .

307. For my part, I consider that the concept of "general reliance" is not useful in considering whether a statutory authority owes a duty of care to take positive steps in the exercise of its powers which will serve to prevent injury to persons. In this context (divorced as it is from the context of negligent misstatements, where particular reliance does find a useful place) general reliance is, as Gummow J demonstrates in Pyrenees Shire Council v Day ^[F538] , a legal fiction. Everyone "relies", to a greater or lesser extent, on others in society doing what they should. Whenever anyone resorts to facilities which are provided by or at the direction of government, such as water, electricity, gas, roads, or the airways, they rely on the relevant authorities to do their work properly. Few, if any, test the water before drinking it, test the bridge before driving over it, or ask the pilot of the aircraft to challenge every instruction given by air traffic control. To say that in these ways individuals rely on those who provide these services or facilities is to state an observable fact. But to conclude from this observable fact that "therefore" the authority concerned not only is liable to exercise any powers it does exercise with reasonable care, but also is bound to prevent harm to others by positively exercising powers which otherwise it has not chosen to exercise, is to take a much larger step.

308. Nor do I consider that special dependence or vulnerability provides a useful test in deciding whether a statutory authority owes a duty of care. Many statutory authorities are monopolies. Often members of the public have no real choice about whether they use the services provided by an authority. In the sense in which I have just explained "reliance", members of the public very often "rely" on an authority to provide services which they can use safely and they are vulnerable to the consequences if the services provided are not safe to use. In the end, however, the question is whether the fact of reliance or vulnerability is relevant to the inquiry about duty of care. I would reject general reliance and vulnerability as useful analytical tools. Either they are no more than legal fictions or they are descriptions of the nature of the relationship between a statutory authority and a user of the facility or service it provides which add nothing to the conclusion that statutory authorities provide facilities and services to which the public resort as of course and often as of right.

Duty of care or breach of duty?

309. It might be said that the various considerations which I have mentioned as difficulties in drawing analogies between a statutory authority and private occupier should be taken into account in deciding whether there has been a breach of a duty of care, rather than in deciding whether there is a duty. In choosing between an outcome based in breach rather than duty it is as well to remember, however, that experience suggests that dealing with factors tending against the imposition of liability at the level of breach rather than duty will lead more often than not to a finding of liability. In hindsight, the steps which could (and, it will be said, should) have been taken by a defendant appear so much more obvious than they might have, had the matter been considered as a hypothetical future possibility. For that reason alone, shifting the focus to breach rather than duty will inevitably shift the balance in favour of plaintiffs and against defendants. That is not reason enough to refuse to take the step, but it is a consequence which must be recognised.

310. There are some further matters, special to statutory authorities, which make it inappropriate to deal with factors tending against the imposition of liability at the level of breach rather than duty. Curial review of decisions made by bodies performing public duties is based on a considerable level of deference to the decision-maker. The nature of the review which courts may undertake is itself a question of law. In itself this suggests that deciding how those decisions are to be examined in an action for negligence is a question about duty of care, not a factual and evidentiary question about breach. In public law, decisions may be examined for error of law but, statute apart, there is no review of the merits of decisions made by such bodies. The closest the courts come to such a review is what is usually called Wednesbury unreasonableness ^[F539] , where the test is whether the decision is so unreasonable that no reasonable decision-maker could have made it. What the Wednesbury test reflects is that the courts are not well placed to review decisions made by such bodies when, as is often the case, the decisions are made in the light of conflicting pressures including political and financial pressures. The Wednesbury test is very different from the test which must be applied in an action for negligence. The content of the objective standard which negligence requires, by its reference to "reasonable" care, is not readily identifiable in the case of a public body exercising public functions. It is not enough to say that the standard of care is that of the "reasonable authority in a similar position". That does not offer any guidance about how the court is to resolve the competition between the various factors which a statutory authority could properly take into account, for example, in ordering its priorities or allocating its budget.

311. It might be said that this competition need not be resolved. That is, it might be said to be enough to demonstrate negligence, to show that the failure to take action did not follow from any of a range of reasonably available ways in which an authority might order its priorities. But that invites attention to the identification of the matters which properly can be taken into account by a public authority. In particular, can the courts, or as I would rather put it, should the courts, attempt to resolve issues which often enough are resolved by the application of political not legal considerations? It is important to recognise that most (if not all) questions about a failure to exercise powers will invite attention to issues of the kind just mentioned. Almost invariably the question why did an authority not exercise its powers in a particular respect will be met by an answer that the authority had chosen to allocate its available resources in some other way or to some other activity. Whether it was reasonable, as opposed to patently unreasonable, for the authority to do that would then require examination of, and adjudication upon, what I have described as political considerations. The fact that these questions would arise very frequently and could not be avoided in considering any question of breach of a duty of a statutory authority to exercise its powers, are further powerful reasons to address the problem at the level of duty, not breach.

312. So, for example, to examine the way in which a highway authority (or any statutory authority) chooses to deploy its resources in performance of some or all of its various functions necessarily involves examining the choices made by that authority. Those choices may be between repairing one section of road rather than another, between building a new road rather than inspecting or repairing others, or between spending money on libraries or services for home care of the aged rather than on the roads of the municipality. How are the courts to decide whether the choice made by one authority was reasonable? What is meant, in this context, by reasonable? What kind of authority is to be taken as the benchmark? Is it relevant to know what political pressures an elected body, such as a local council, faced when it prepared its budget? Does it matter if the authority receives much of the money it spends on roads from funds provided by the federal government under State grants legislation? These are questions which lie behind the distinction which it has been sought to draw between operational and policy matters ^[F540] . Their importance goes much deeper, however, than any such distinction. They are important questions because of the public or community nature of the functions which authorities like highway authorities perform.

313. A claim for damages for breach of some duty owed to an individual invites attention to the particular and often peculiar circumstances of that individual. By contrast, the performance of public duties will almost always call for the making of broad judgments about which individuals may differ. The two kinds of duty, one particular and owed to an individual, and the other general and calling for assessment of myriad competing pressures, do not readily co-exist, except in the case where the authority chooses to exercise its powers. Then, it is possible to accommodate the two duties. By contrast, however, the imposition of a duty to act in relation to a particular case where, as events turn out, failure to act has affected an individual, does not find any easy accommodation with the general obligation of an authority to fulfil its public obligation of providing, as best it can, a service or facility for communal use.

314. The various matters I have mentioned invite attention to the role duty of care should play in the tort of negligence. Duty of care is an important control mechanism in providing "symmetry, consistency and defined bounds" ^[F541] to the law of negligence. It is one of the "major premises [of this area of law] which, if unqualified, may extend liability beyond the bounds of social utility and economic sustainability" ^[F542] . As Professor Stapleton has pointed out, duty of care "allows courts to signal ... relevant systemic factors going to the issue of liability" ^[F543] . If there are factors that operate generally to deny liability, they should be taken into account at the stage of deciding whether there is a duty. The duty concept should not be discarded as if it were no more than a fifth wheel on the coach ^[F544] .

Finding a duty of care

315. The tort of negligence is not intended to provide universal protection against the consequences of injury. The basic purposes of the law in this area include promoting reasonable conduct and reflecting fundamental notions of individual responsibility. But the pursuit of those purposes, in the case of statutory authorities, must accommodate not only the fact that authorities are the creature of legislation, but also the fact that authorities of this kind fulfil public functions.

316. It can readily be accepted that the search for a principled basis, or bases, upon which a duty of care will be found to exist is a search that continues. We have seen the rise and fall of notions of proximity, and of general reliance. We have seen reference to vulnerability, to encouragement, and to open-ended statements of conclusion like the three-part incantation said to derive from Caparo Industries Plc v Dickman ^[F545] . None has proved a satisfactory explanation of what it is that has moved the debate in a particular case to the conclusion that was reached. We have, at least for the moment, retreated to what is thought to be the safe haven of incremental development, perhaps hoping that, in time, a unifying principle or principles will emerge ^[F546] .

317. The incremental approach to ascertaining the existence of a duty of care has two consequences. First, there is a temporal consequence. As Gummow J pointed out in Crimmins v Stevedoring Industry Finance Committee ^[F547] , recovery becomes an accident of history dependent upon when, in the development of the common law, the claim falls for consideration. That might be said to be no more than an inevitable consequence of the common law's adoption of reasoning by analogy. Second, however, there is an expansionary consequence. The process of incremental development is, essentially, one of extending the range of circumstances in which a duty will be found to exist. Further, if the process of finding a duty of care in novel circumstances depends upon drawing analogies with existing cases, there is a question about what it is that makes the case in question sufficiently analogous to past cases to warrant finding a duty. Even incremental steps require implicit reference to some general principles.

318. As I have said, however, the search for some unifying principle or principles which will explain why an analogy has been drawn with previous authority in some cases but not others has so far proved unsuccessful. All that emerges is that foresight of harm, and capacity to avoid it, has been said not to be enough. "Something more" must be found. If, however, the expansion of duty of care continues on its current path, foresight of harm and capacity to avoid it will become the only criteria which underpin the imposition of a duty of care. In that event, duty of care would serve no purpose in identifying the cases in which liability is to be found. The only questions would be whether a defendant in fact acted without reasonable care, or failed to act when it would be reasonable to do so, and whether that act or omission was a cause of the plaintiff's loss or damage.

319. The hope that an incremental approach will reveal some unifying principle or principles may, therefore, very well prove ill founded. If it does, it will be because the roots which lie beneath the development of this area of the law are so ill defined that they do not enable the growth of sturdy branches, only a mass of little twigs which give no suitable shape to the plant. Those roots can be seen in necessarily diffuse notions of individual responsibility and deterrence. The difficulty is compounded by the fact that, diffuse as these notions are, they must compete with other notions also said to lie beneath this field, such as loss distribution.

320. The choice which now must be made is whether foresight of harm and capacity to avoid it are to be held sufficient to found a duty of care, or whether more must be shown. Are we now to conclude that the possession of power in a statutory authority, coupled with reasonable foresight of harm, will suffice to oblige it to exercise its powers if, viewed with the clarity of hindsight, it was reasonable for it to do so to avoid the harm which has befallen a plaintiff?

321. That would be a coherent and readily intelligible principle for the ascertainment of a duty of care. On its face it would seem, however, to be a principle of general application, applying not only to statutory authorities but to all persons. It would, therefore, be a duty which would oblige the passer-by to rescue others from harm if they could reasonably do so. In the biblical allusion of Lord Atkin, no longer could one pass by on the other side. The courts have always resisted taking this step. I do not consider that we should take it now.

A different approach for statutory authorities?

322. Perhaps it might be said that such a step could, and should, be taken in the case of statutory authorities, and confined in its application to bodies of that kind. But that assumes that statutory authorities are, because of their statutory origin or public functions, not only to be treated differently from private persons, but are to be subjected to wider duties of care than private persons (notwithstanding the absence of a statutory basis for this wider liability, and the wide range of policy issues such authorities have to consider).

323. I can readily accept that the duties of care of statutory authorities may be different from those of private persons. The statutory origins and public nature of the functions of statutory authorities are important distinguishing features. But effect is not to be given to those distinguishing features by imposing on statutory authorities a duty to act whenever there is power to act and foresight of harm, and it would be reasonable to act. The imposition of such a duty should be a legislative decision made in relation to each particular statutory authority, not a judicial decision applying to all such authorities.

324. To impose a duty to act would depart from what has hitherto been generally accepted to be the common law, not only in relation to highway authorities but statutory authorities generally. It may be readily accepted that the common law in relation to highway authorities has been anything but clear and that its foundations in principle are, at best, obscure. I do not accept, however, that this requires or permits the recasting of the common law by imposing on a highway authority a duty to act whenever there is power to act and foresight of harm, and it would be reasonable to act. There can be little doubt that some State Parliaments have acted on the basis that, whatever may be the obscurity of the present law, highway authorities are, in general, not liable for failing to exercise their powers, but are liable if they exercise their powers negligently. Inquiries by State law reform agencies have been commissioned but their reports have not been implemented ^[F548] . In these circumstances, the development of the common law in relation to authorities of this kind should accommodate that understanding of the law as far as it is possible to do so. That accommodation must, of course, take account of any statutory provision to the contrary. As a general rule, however, the duty which a highway authority will owe is a duty to take reasonable care when it exercises its powers. So long as the common law stops short of imposing a duty of care on any person who has power to act and foresight of harm, and for whom it would be reasonable to act, no such duty of care should be found to be owed by a highway authority.

Negligence and breach of statutory duty

325. It is desirable to say something further at this point about the intersection between asking whether a statutory authority owes a common law duty to act, and the inquiries that underpin a finding that a private action will lie for breach of statutory duty. If a statutory authority has a duty, imposed by statute, to perform some function or carry on some activity, it will usually be readily apparent that the function or activity is to be performed for the advantage of some or all members of the community. As McHugh and Gummow JJ pointed out in Byrne v Australian Airlines Ltd ^[F549] , deciding whether a breach of a statutory duty gives rise to a civil remedy for damages at the suit of an individual is not assisted by references to the "intention" of the legislature. Nor, as Kitto J pointed out in Sovar v Henry Lane Pty Ltd ^[F550] , can a finding of private right be made by judges giving effect to their own ideas of policy which then are to be imputed to the legislature.

326. Rather, reference must be made ^[F551] to "the nature, scope and terms of the statute, including the nature of the evil against which it is directed, the nature of the conduct prescribed, the pre-existing state of the law, and, generally, the whole range of circumstances relevant upon a question of statutory interpretation" (emphasis added). Ordinarily, the more general the statutory duty and the wider the class of persons in the community who it may be expected will derive benefit from its performance, the less likely is it that the statute can be construed as conferring an individual right of action for damages for its non-performance. In particular, a statutory provision giving care, control and management of some piece of infrastructure basic to modern society, like roads, is an unpromising start for a contention that, properly understood, the statute is to be construed as providing for a private right of action.

327. The conclusion that a particular statute does not provide for a private action for failure to perform some statutory duty is itself a powerful reason for pausing before finding that there is a common law duty to exercise that power. The several considerations which may lead to the conclusion that no private action should lie for breach of statutory duty seem to me to suggest in many, perhaps most, cases that there is not that degree of particular contemplation of the position of individuals, of whom the injured plaintiff is one, which should be necessary before finding that there is a common law duty of care.

A highway authority's duty of care

328. As I have said above, a highway authority, like any other repository of statutory powers, owes a duty of care in the actual exercise of its powers. It should not be held that it does not owe a common law duty of care to those who suffer injury because it did not exercise its powers.

329. Formulating the duty of care in a way which distinguishes between an authority exercising its powers and it failing to do so carries some difficulties with it that must be addressed. When it is recognised that the relevant inquiry is about duty of care, not about breach or immunity from liability, at least some of those questions may prove to be irrelevant.

330. One apparent difficulty which should be addressed is what Fullagar J identified in Gorringe as the corollary to the theorem of no duty to repair: that a highway authority owes no duty to individuals to be careful in care and management of its highways. Provisions that a highway authority "shall have the care, control and management" of certain roads are not uncommon ^[F552] .

331. Provisions of that kind might be construed as imposing a statutory duty of care and management and, if that is so, why should the authority not be found to owe a duty to take reasonable care in the way in which it manages the roads under its control? Moreover, should not considerable weight be given to the fact that a highway authority does control the state of the roads under its management ^[F553] ?

332. On analysis, however, considering the power, or duty, of a highway authority to care for and manage its roads is to consider the problem at too broad or abstract a level of inquiry. In order to understand the content of the duty which it is alleged has been broken, it is necessary to examine exactly what it is said that the authority is alleged to have done, or not done, in caring for and managing the particular road, or section of road, in issue. Only then can the content of the duty be identified ^[F554] . Examining the matter at the more general level of care and management of all its roads may serve only to obscure the fact that the authority has not exercised any power in relation to the road or section of road in issue.

333. Given the way the law in relation to highway authorities has developed, it may be thought that there remains some question about whether an authority is to be taken to have acted as a highway authority or in some other capacity. But that, on examination, can be seen to be irrelevant. If an authority having responsibility for drainage and for road making, installs a drain cover in a road and, over time, the surrounding road surface is eroded to such an extent that an accident is caused, the authority will be liable for failure to repair if, and only if, it owed a duty to the individual road user to exercise its power to repair. If that inquiry begins, as I consider it should, from the proposition that the authority owes no common law duty to individual road users to repair the highway, what is it that would lead to imposition of a duty to repair the surrounds of the drain cover? A statutory duty of care and management, whether of the road, the drain, or generally the infrastructure in the area, will not found such a duty of care.

334. Further, if the focus is on negligent exercise of power, the same nicety of distinction between misfeasance and non-feasance as has been exhibited in the past course of authority may not persist. The question will be what is the power which has been exercised and exercised without reasonable care. It is not a more abstract question cast in terms of misfeasance and non-feasance that is divorced from identification of a power upon which the authority is alleged to have acted in a particular way.

335. No different result should follow from casting the claim as a claim in nuisance rather than negligence. There is much to be said for the view that nuisance should be confined to claims alleging interference with a plaintiff's enjoyment of rights over land, and not applied to secure enforcement of public duties. It may well be, however, that it is now too late to attempt to confine nuisance in that way. Nevertheless, there is certainly no occasion to extend the reach of nuisance. No action for nuisance should lie where the plaintiff's complaint is founded upon the failure of a statutory authority to exercise its powers and an action for breach of statutory duty or negligence would not lie.

336. Despite directing attention to the identification of the duty which it is said has been broken, the law relating to the liability of highway authorities may well remain uncertain in its application at trial level because of the difficulty of distinguishing between actions and omissions. The solution to that problem lies in the hands of the legislatures, not the courts. It is the legislatures which create the authorities. It is they who provide for the powers, duties and resources of the authorities. It is they who can most readily regulate when and to what extent individuals who suffer injury may recover from the authorities concerned.

337. I turn then to deal with the particular applications.

Scott Munn Brodie & Anor v Singleton Shire Council

338. In this matter the question of the respondent's breach of duty of care would turn on whether it had exercised its power to repair the bridge without reasonable care. It is, however, not necessary to resolve that question. The difficulty which the applicants face is that, despite a warning sign to the contrary, the first applicant drove a heavily laden truck over the bridge immediately before the one which gave way under the load. While he did so because he had seen that other similar trucks had passed over it safely, it is still the case that he failed to observe the warning which was posted there. That being so, I do not accept that he demonstrated that any want of care on the part of the respondent was a cause of what happened. It follows that in this matter I would grant special leave to appeal, but order that the appeal be dismissed with costs.

Catherine Ghantous v Hawkesbury City Council

339. I agree with Callinan J that no arguable case of want of care by the respondent was established. I would again grant the application for special leave, but order that the appeal be dismissed with costs.