I. INTRODUCTION
3.1 This chapter examines the liability for nonfeasance of public authorities other than highway authorities. Such an examination allows the scope of the immunity currently enjoyed by highway authorities to be placed in context and provides a basis upon which to assess the extent of liability that would be imposed on highway authorities if the nonfeasance rule were to be abolished.
II. GENERAL PRINCIPLES OF LIABILITY FOR NON-FEASANCE
3.2 Although liability in negligence can be based on either a negligent act or a negligent failure to act, the distinction between positive acts and mere omissions has traditionally been of considerable importance. Negligence can form the basis of a legal action only if shown to be in breach of a legal duty owed to the person injured. While the courts are ready to imply a duty to take reasonable care not to harm others by positive conduct, they are reluctant to imply a duty to take positive steps to protect others from injury.1 As expressed by Lord Diplock, the general principle at common law is that no one has a legal duty to be a good Samaritan.2 Accordingly, a doctor is under no duty to aid an injured stranger, nor is a good swimmer under a duty to go to the aid of someone who is drowning.3
3.3 Despite the general principle, a duty of affirmative care will be implied where a special relationship between the parties is found to justify it. Such a special relationship exists, for example, between parent and child, master and servant, occupier and entrant and carrier and passenger. Inherent in these relationships is the control that one party can exercise over the other or over the source of potential danger. Reliance is placed on the controlling party to act with due regard for the safety of others. In these circumstances it is thought reasonable to place the controlling party under a duty of care requiring affirmative action to safeguard others.
III. PUBLIC AUTHORITIES
A. Background
3.4 The application of these general principles to government authorities entrusted with the performance of public functions has presented some difficulties. Two special considerations arise when assessing the liability of public authorities.
- Because public authorities exercise discretionary powers given by statute, the courts are cautious when asked to review whether or not they have acted negligently.
- It is doubtful to what extent the reasons which lie behind the common law’s general reluctance to require an individual to take positive action for the benefit of others have application to a public authority charged with exercising public functions.
The development of the law in this area has seen the courts attempting to strike an appropriate balance between these competing considerations. This task has not proved easy and has produced a complex body of case law which has shifted the balance from time to time.4 A mingling of principles taken from public and private law has tended to confuse the development of the law5 and it now appears that different principles may apply in Australia and England.6 The Commission has decided not to include a comprehensive discussion of this process in this Report because the detailed analysis involved is not necessary to an understanding of the position highway authorities would be in following the abolition of the nonfeasance rule. An internal background paper has been prepared which traces the development of the case law in England and Australia in some detail.7 What follows is a summary of the law in Australia relevant to determining the liability that would be imposed on highway authorities if the nonfeasance rule were abolished.
B. General Approach
3.5 The rules applying to public authorities reflect the general principles of liability for nonfeasance discussed at paras 3.2-3.3. The mere fact that a public authority has a statutory power to act will not of itself place it under a common law duty of care. Generally speaking, a person who suffers injury that could have been prevented by the reasonable exercise of powers vested in a public authority, will have no claim for damages against the authority.8 However, this proposition is a starting point only and it is clear that in certain situations the conduct of a public authority, or the relationship between it and members of the public, will attract a common law duty of care to the authority. When this duty of care arises, it exposes public authorities to liability in negligence for failing to exercise their powers when it is reasonable to expect them to do so.
3.6 There has been some disagreement amongst members of the High Court as to the underlying principles governing the imposition of the duty of care. The leading authority is the case of Heyman v Sutherland Shire Council,9 decided in 1985. In Heyman, two members of the High Court (Gibbs CJ, with whom Wilson J agreed) adopted the approach taken by the House of Lords in England in the case of Anns v Merton Borough Council.10 In Anns, Lord Wilberforce (with whom all members of the House, other than Lord Salmon, agreed) stated that the question of whether a duty of care arises in a particular situation has to be approached in two stages:
First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter - in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise.11
However, a majority of the High Court in Heyman (Mason J, as he then was, Brennan and Deane JJ) rejected this approach. Referring to the first tier of Lord Wilberforce’s test of duty, they stated that mere foreseeability of harm is not a sufficient basis on which to make a finding of proximity for the purpose of establishing a prima facie duty of care, particularly where the duty sought to be imposed is a duty to take action to prevent harm.12 All of the judges in the “majority” stressed the fact that at common law a duty to act only arises in special circumstances. Thus Brennan J stated:
Some broader foundation than mere foreseeability must appear before a common law duty to act arises. There must also be either the undertaking of some task which leads another to rely on its being performed, or the ownership, occupation or use of land or chattels to found the duty. (Cf Windeyer J in Hargrave v Goldman).13
Mason J agreed that the concept of reliance is crucial in displacing the general rule that a public authority which is under no statutory obligation to exercise a power is under no common law duty to do so.14
3.7 In fact the difference between the two principal approaches taken by the High Court in Heyman may not be as great as at first appears as Gibbs CJ also expressed reservations as to the possible scope of the first tier of Lord Wilberforce’s test. In particular he said that something more than foreseeability of harm is necessary in order to establish the proximity necessary to give rise to a duty of care.15
C. Authorities in Control of Public Facilities
3.8 It is well established that an authority’s ownership or control of a public structure or place (other than a highway) attracts to it a duty of care owed to members of the public using the facility.16 The basis for the imposition of this duty is the reliance which members of the public place in the authority to keep the facility safe for use. This is made clear in the following passage taken from the leading judgment of Dixon in Aiken v Kingborough Corporation.
Parks, gardens, playgrounds, shelters, swimming-pools, public picture galleries and public libraries are examples of places which are not highways but to which members of the public may go as of right. More often than not the care and management of, if not the property in, such places have been vested by or under statute in a corporation or in trustees who are obliged to give free access to the public, but who have full powers of maintenance and repair, as well as of management. 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.17
The weight of authority is such that it would not now be necessary for a trial judge to refer to an examination of general principles in order to establish the imposition of a duty of care in any like case.
3.9 Until very recently, some confusion existed as to whether the duty owed to persons entering public areas as of right depended upon the application of special principles relating to occupiers of land or upon ordinary principles of negligence.18 Doubts also existed as to the precise formulation of the duty of care owed.19 For example, in Aiken, Dixon J suggested that the duty imposed “an obligation to take reasonable care to prevent injury... through dangers arising from the state or condition of the premises which are not apparent and are not to be avoided by the exercise of ordinary care”.20 In a later case, Walsh J suggested that the better view was that the standard to be applied was the same as that owed by an occupier of land to an invitee, but added that the adoption of the Dixon formulation would make little practical difference.21 It is not necessary to discuss these matters further as the whole area of occupier’s liability and its relationship with ordinary negligence principles has now been rationalised by the High Court in the recent case of Australian Safeway Stores Pty Ltd v Zaluzna.22 Following that decision, it is now clear that the principles to be applied in establishing the imposition of the duty are ordinary negligence principles and that the standard of care owed is simply the common law duty to take reasonable care having regard to all the circumstances of the case.
3.10 While the outcome of the inquiry as to whether reasonable care was taken in a particular case will depend solely on the facts of the case, some guidance as to the general approach taken by the courts can be obtained from examining the decisions in other cases. Two are discussed below.
3.11 In Aiken v Kingborough Corporation,23 the Corporation was vested with the care, control and management of a jetty which was damaged during a storm, causing a dangerous gap between the pile and the decking of the jetty. The Corporation knew of the dangerous state of the jetty but did nothing to repair it. The plaintiff suffered injury when he fell down the gap in the decking while using the jetty at night. The judges of the High Court hearing the case on appeal observed that the duty owed was not a duty to repair, but a duty to safeguard users of the jetty from injury. Therefore the Corporation could have discharged its duty to safeguard users by adopting measures other than repair such as guarding or warning of the hole. Having done none of these things the Corporation was liable.
3.12 In Schiller v Council of the Shire of Mulgrave,24 the Council was trustee of a scenic reserve which the public was entitled to enter as of right. Again, the court held that in the circumstances of the case the Council owed a duty of care to members of the public using the reserve. The plaintiff was injured while walking down a rough bush track in the reserve when a dead tree, which stood some 35 feet into the forest from the track, fell on him without warning. The track was not maintained by the Council, but the Council knew of it and of its use by the public. The court held that the Council knew, or should have known, of the danger posed by dead trees. While the Council may not have known of the particular tree which f ell and injured the plaintiff, the Council had failed to exercise reasonable care by neglecting to make any inspection of the area surrounding the track and by taking no steps to discover or to deal with any dead trees standing near the track. Accordingly, the Council was liable to compensate the plaintiff for his injuries.
3.13 These are clearly cases in which liability has been found to exist for nonfeasance. In each case, the authority had done nothing to create or contribute to the danger in question. Nevertheless, the authority was liable for negligent failure to protect members of the public from danger.
D. The Discretionary Function Immunity
3.14 In Anns v Merton Borough Council, Lord Wilberforce recognised that some decisions of public authorities were not to be made the subject of a duty of care. This exception to liability is sometimes referred to as the discretionary function immunity. Although doubting the decision in other respects, the members of the High Court in Heyman did approve of the immunity as defined by Lord Wilberforce in Anns.25 Consideration of the immunity depends upon drawing a distinction between administrative error on the policy and operational levels. The meaning of these terms was explained by Lord Wilberforce.
Most, indeed probably all, statutes relating to public authorities or public bodies, contain in them a large area of policy. The courts call this “discretion” meaning that the decision is one for the authority or body to make, and not for the courts. Many statutes also prescribe or at least presuppose the practical execution of policy decisions: a convenient description of this is to say that in addition to the area of polic or discretion, there is an operational area.26
The importance of the distinction is that a common law duty of care cannot arise in relation to acts and omissions which reflect the policy-making and discretionary elements involved in the exercise of statutory functions. The reasons for this are explained well by Fleming:
It would be highly impolitic to allow legal challenges in negligence actions, of decisions by public bodies typically involving a conscious choice in the allocation of scarce resources, or a deliberate balancing between claims of efficiency and thrift, or a decision how best to implement a discretionary power entrusted by statute. On the other hand, it is not invidious to subject to scrutiny the manner in which the policy thus determined is actually carried out, whether by commission or omission, by making the plaintiff Is condition worse or merely failing to improve it.27
3.15 As is noted by Lord Wilberforce, the distinction is not always clear cut:
Although this distinction between the policy area and the operational area is convenient, and illuminating, it is probably a distinction of degree; many “operational” powers or duties have in them some element of “discretion”. It can safely be said that the more “operational” a power or duty may be, the easier it is to superimpose upon it a common law duty of care.28
The mere fact that the decision in question is taken by a workman in the field does not prevent it from being a policy decision. “Higher policy organs of government may delegate their policy-making powers to those charged with dealing with problems on a day-to-day basis”.29 Further guidance in making the distinction is provided by Mason J in Heyman:
The distinction between policy and operational factors is not easy to formulate, but the dividing line between them will be observed if we recognise that a public authority is under no duty of care in relation to decisions which involve or are dictated by financial, economic, social or political factors or constraints. Thus budgetary allocations and the constraints which they entail in terms of allocation of resources cannot be made the subject of a duty of care. But it may be otherwise when the courts are called upon to apply a standard of care to action or inaction that is merely the product of administrative direction, expert or professional opinion, technical standards or general standards of reasonableness.30
IV. APPLICATION TO HIGHWAY AUTHORITIES
A. Imposition of a Duty of Care
3.16 The abolition of the nonfeasance rule would allow the liability of highway authorities to be determined on the same basis as that of all other public authorities. This would result in highway authorities coming under a common law duty of care to users of the highway. The imposition of this duty of care is justified by reference to cases in which a duty of care has been imposed on other public authorities in charge of public facilities (paras 3.8-3.13) and is clear as a matter of general principle. As discussed above, reliance is central to the relationship of proximity necessary to establish the imposition of a common law duty of care to take action to prevent harm to others. Aronson and Whitmore have commented on the reliance placed by members of the public in highway authorities. They state:
Motorists, for example, depend on the authorities to provide hazard warnings, and drive accordingly. Their dependence is justifiable, as the authorities are capable of giving the warnings, possess superior information of the hazards, and generally do give warnings.31
They continue, in a note to the text:
It is clear that there is in fact a “special relationship” between motorists and highway authorities, such that if one were to apply the normal principles of negligence law, the authorities would often be liable for omissions.32
Indeed, driving is probably the most hazardous activity that people commonly engage in, and it is difficult to conceive of a situation in which greater reliance is placed on others to act responsibly.33
3.17 The imposition of a duty of care on highway authorities would be subject to the discretionary function immunity, discussed above (paras 3.14-3.15). The significance of the immunity is that policy decisions, that is, decisions involving the exercise of a policy discretion conferred by the legislature or involving the conscious allocation of resources, cannot become the subject of a duty of care reviewable by the courts in negligence actions. Highway authorities are entrusted with the care, control and management of highways for the public benefit and are given powers to act rather than duties to do so.34 A discretion is vested in the authorities as to when and how they will exercise their powers. They are required to work under strict budgetary constraints and must determine how best to allocate their limited funds among the many projects competing for their attention. The combination of these factors suggests that, not infrequently, highway authorities could rely on the discretionary function immunity.35 The immunity is important as it would allow highway authorities to make planning decisions and set financial priorities free from the prospect of liability in negligence. Two Canadian cases involving highway authorities illustrate the way in which the immunity might be applied in particular situations.36
3.19 In Barratt v District of North Vancouver,37 the plaintiff was injured when his bicycle ran into a large pothole containing water. The court noted that the municipality would be liable only if it knew or should have known of the existence of the pothole. As the municipality did not have actual knowledge of the pothole, to succeed the plaintiff had to be able to show that the municipality should have known of its existence by making more frequent inspections than it had. This involved an examination of the reasonableness of the municipality’s inspection program. The trial judge in the case found the inspection program to be inadequate and held that the municipality had failed to take reasonable care to safeguard road-users and was therefore liable to compensate the plaintiff for his injuries. This finding was reversed on appeal to the British Columbia Court of Appeal. Delivering the judgment of the Court of Appeal, Robertson JA suggested that the trial judge had fallen into error in failing to give proper recognition to the fact that the defendant was a public authority discharging public functions. Referring to the principles stated by the House of Lords in Anns, his Honour held that the frequency with which inspections should be made was a policy matter for the municipality to determine in the light of its budgetary constraints. Therefore the decision could not be made the subject of a duty of care owed to the plaintiff. Whether or not the authority’s decision was ‘reasonable’, it could not form a basis for finding the municipality liable in negligence. This approach was approved on appeal to the Supreme Court of Canada.38
3.20 In Just v R in the Right of British Columbia,39 the plaintiff was seriously injured when a boulder fell from a bluff onto his car while he was travelling along a highway maintained by the Crown. The Crown had established a rock-scaling crew, whose function was to deal with dangers arising from cliff faces throughout the Province. Apart from times when particular dangers were brought to its attention, the crew developed and followed its own work program. The plaintiff alleged that, had the crew exercised reasonable care, it would have discovered and removed the boulder which caused his accident. Furthermore, the plaintiff contended that, while the decision to establish the crew was a policy decision, whether or not the crew chose to inspect or work on a particular site was an operational function. This contention was rejected by the court. McLachlin J noted that the authority delegated to the crew gave wide discretion as to the areas to be inspected and the work to be carried out. The exercise of the discretion involved the crew in planning inspection programs, in deciding how best to utilise its resources and in determining the standards to which it would work, all of which suggested a policy, as opposed to an operational, function.40 Accordingly, it was concluded that the decision complained of fell within the policy area and the plaintiff’s claim was dismissed.
3.21 Not all functions which involve the exercise of discretion fall within the policy area. As the Supreme Court pointed out in Barratt, although the formulation of an inspection program is a policy matter, the implementation of the program is predominantly an operational function.41 Therefore a highway authority could be held liable for the negligent failure of its employees to adhere to its inspection program. An authority might also be liable for the failure of its inspectors to discover defects which the inspections made should have revealed.
B. Nature of the Duty and Matters Relating to Breach
3.22 The duty imposed on highway authorities would be a duty to take reasonable care in the circumstances of the case. The question whether reasonable care has been taken in a particular case will depend solely on a consideration of the facts of the case . It is not possible, therefore, to state in abstract what obligations the duty will impose. However, some observations can be made on the extent of the duty and the likely general approach of the courts to the question of breach.
3.23 First, the duty will be concerned only with the protection of road-users from personal injury or damage to their property. The duty owed will not be a duty to repair and could be discharged by employing measures other than repair.42 The measures which might be taken include placing a warning sign or protective barrier adjacent to the dangerous area or employing a roadworker to direct traffic around the affected area. Whether the steps taken are sufficient to satisfy the standard of reasonable care will be a question of fact to be decided in each case. A warning sign will not suffice if it is of no practical use. For example, on the facts in Schiller (see para 3.18), Gibbs J stated that once the Council had become aware of the existence of the dead tree it should have removed the tree or closed the nearby track. He continued:
It would, in my opinion, have served no good purpose merely to warn persons using the track; if the tree fell it might, as the event showed, come down so suddenly that a person on the track could not escape it, and the fact that he was warned of the possibility of danger would not help him.43
3.24 A second point arises, closely related to the first. An action for breach of the duty will only lie in respect of claims for personal injury or property damage. The duty under discussion is not concerned with the protection of whatever other interests members of the public might have in the maintenance of an efficient highway network, for example, economic interests. Therefore, a highway authority that carelessly allows a road to fall into an impassable state will not find itself liable to compensate truck operators who suffer economic loss because they can no longer use the road to conduct their businesses.44
3.25 Thirdly, highway authorities will only be liable for dangers to public safety of which they knew or ought to have known.45 If, for instance, through no fault of the authority in control, a portion of a highway collapses and a driver is injured, the highway authority will not be liable unless it can be shown that it acted unreasonably in not discovering the defect and in not taking measures to protect the public. if the time between the danger arising and the accident is very short, or if the highway in question is in a remote country area, it may be difficult for a person who is injured to show a breach of the duty of care.
3.26 Finally, as stated above, the question of breach of a highway authority’s duty to road-users will be considered in the light of all the circumstances of the case in question. In Miller v McKeon,46 a case in which negligent construction of a highway was alleged, Griffith CJ set down the factors which he thought might have particular relevance to dangers on highways. He said:
(T)he Government of a newly-settled country, which undertakes the first formation of a road, whether the soil has or has not been formally dedicated as a highway, is bound to use such care to avoid danger to persons using it as is reasonable under all the circumstances. These circumstances include the nature of the locality, the extent of the settlement, the probabilities as to the persons by whom the road is likely to be used, and the moneys available to the Government for the purpose; it being always assumed that the persons using the road will themselves take ordinary care.47
It is open to the courts to take a very flexible approach to determining liability. The quality of care and supervision expected of a country council in respect of a remote country lane will be very different from that required of the Commissioner for Main Roads in respect of a major freeway. The decision in Miller v McKeon illustrates this point. In that case, the plaintiff was injured when he fell into a cutting at the side of a little used country road. He alleged that the Government of New South Wales, which had constructed the road, had been negligent in not fencing off the cutting. The cutting had remained unprotected for 20 years or more, without any previous accident being recorded. On these facts, and taking into account the locality of the road, the High Court held that there was no sufficient evidence of negligence to allow the matter to go before a jury.
3.27 One of the factors of particular interest referred to by Griffith CJ was the finance available for road-work. Generally speaking, the financial resources of a wrongdoer are not relevant in determining whether there has been negligence.48 Allowing such evidence in relation to highway cases gives recognition to the fact that the construction of highways is undertaken for the public benefit and that constructing authorities must do the best they can with limited resources. The purpose of the inquiry into an authority’s financial resources is not to ensure that the authority has made a reasonable allocation of its available resources. Later cases have made it clear that evidence relating to the availability of funds will be accepted in general terms only, and solely for the purpose of throwing light on the question of the condition of roads in the neighbourhood and the standards of perfection that can reasonably be expected of a road-making authority in the locality.49 Better protection is now afforded by the discretionary function immunity.
FOOTNOTES
1. As to liability for omissions generally see Smith and Burns “Donoghue v Stevenson the Not So Golden Anniversary” (1983) T6 MLR 147.
2. Dorset Yacht Co Ltd v Home Office [1970] AC 1004 at 1060.
3. J G Fleming The Law of Torts (6th ed Law Book Co 1983) at 138 and the authorities there cited.
4. Compare Mersey Docks v Gibbs (1866) 11 HLC 686; East Suffolk Catchment Board v Kent [1941] AC 74; Dorset Yatch Co Ltd v Home Office [1970] AC 1004; Sutherland Shire Council v Heyman 59 ALJR 564, (l985) 60 ALR 1.
5. Dorset Yatch Co Ltd v Home Office [1970] AC 1004; Anns v Merton Borough Council [1978] AC 728.
6. Compare Sutherland Shire Council v Heyman (1985) 59 ALJR 564, (1985) 60 ALR 1 with Anns v Merton Borough Council [1978] AC 728 and Peabody Donation Fund v Sir Lindsay Parkinson Ltd [1984] 3 WLR 953.
7. Hirshman “Public Authority Liability” March 1987 (internal Commission research paper).
8. East Suffolk Catchment Board v Kent [1941] AC 74; Revesz v Commonwealth of Australia (1951) 51 SR (NSW) 63; Administrator of Papua New Guinea v Leahy (1961) 105 CLR 6.
9. (1985) 59 ALJR 564, (1985) 60 ALR 1.
10. [1978] AC 728.
11. Id at 751-752.
12. (1985) 59 ALJR 564 at 597, (1985) 60 ALR 1 at 59 (Deane J), at 587, 42 (Brennan J).
13. Id at 587, 42; Hargrave v Goldman [1967] 1 AC 645.
14. Id at 579, 29. In Mason J’s view, the reliance could be specific, that is induced by the previous conduct of the defendant, or it could be in the nature of general reliance by the public as a whole on the exercise of the power by the authority. It is not clear whether Brennan and Deane JJ regarded general reliance by the public as sufficient to found the liability (Brennan J at 590, 47; Deane J at 600, 65).
15. Id at 570, 14.
16. Buckle v Bayswater Road Board (1936) 57 CLR 259; Aiken v Kingborough Corporation (193-9) 62 CLR 179; Schiller v Council of the Shire of Mulgrave (1972) 129 CLR 116.
17. (1939) 62 CLR 179 at 205-206.
18. Compare the judgments of Barwick CJ and Walsh J in Schiller v Council of the Shire of Mulgrave (1972) 129 CLR 116.
19. Barr v Manly Municipal Council (1967) 70 SR (NSW) 119.
20. Aiken v Kingborough Corporation (1939) 62 CLR 179 at 210.
21. Schiller v Council of the Shire of Mulgrave (1972) 129 CLR 116. Compare the position at common law in England, where the approach has been to treat entrants as of right as if they were licensees: Pearson v Lambeth Borough Council [1950] 2 KB 353. The matter is now governed by statute: see Occupiers’ Liability Act 1957 (UK). The Act provides for a common duty of care applicable to all categories of lawful entrants: s1(1).
22. (1987) 61 ALJR 180.
23. (1939) 62 CLR 179.
24. (1972) 129 CLR 116.
25. (1985) 59 ALJR 564 at 570, (1985) 60 ALR 1 at 14 (Gibbs CJ); at 582, 34-35 (Mason J); at 596, 57-58 (Deane J).
26. [1978] AC 728 at 754.
27. Note 3 at 145.
28. [1978] AC 728 at 754.
29. Just v R in the Right of British Columbia [1985] 5 WWR 570 at 576 per McLachlin J.
30. (1985) 59 ALJR 564 at 582, (1985) 60 ALR I at 34-35.
31. Aronson and Whitmore Public Torts and Contracts (Law Book Co 1982) at 108.
32. Id at 108, fn 36.
33. For the sake of completeness it is necessary to mention a point raised by the Law Reform Commission of Western Australia: Report on the Liability of Highway Authorities for Non-Feasance (project 62, 1981). The Commission referred to doubts existing as to whether a duty to take care would arise automatically upon abolition of the rule. Accordingly, the Commission felt it advisable to recommend that such a duty be specifically imposed upon highway authorities by statute. The Commission’s comments were based on the views expressed in an article written by Professor Geoffrey Sawer (“Non-Feasance Under Fire” (1966) 2 NZULR 115) in which he suggested that, even in the absence of the nonfeasance rule, grave doubts existed as to whether there was any substantive basis for imposing civil liability on highway authorities in the nonfeasance situation. In reaching this conclusion, he argued that Acts imposing duties or powers to repair highways were made for the benefit of the public at large and that in these circumstances “the presumption would be that no individual suffering injury from the breach of the statutory duty would be entitled to recover in a civil action for damages” (page 117). It is submitted that this argument fails to distinguish adequately between the special rules relating to common law actions for breach of duties imposed by statute and the general principles concerned with the imposition of a common law duty of care. Significantly, Professor Sawer was writing before the decisions in Anns and Heyman. As Mason J points out in Heyman, the presumption referred to above has no application to the liability of an authority for breach of a common law duty of care. Therefore, despite Professor Sawer’s comments, the Commission is of the view that a common law duty of care would arise upon the abolition of the nonfeasance rule.
34. See paras 2.21-2.23.
35. The immunity has been applied to highway authorities in cases in England and Canada: see Haydon v Kent County Council [1978] 2 All ER 97 and Allison v Corby District Council [1980] RTR 111. The English cases must be addressed with some caution as, in England, highway authorities are under a statutory duty to maintain highways. Although there is some difference of opinion as to what the scope of the duty to maintain is (see Haydon v Kent County Council [1978] 2 All ER 97 at 105 per Denning MR, compare Gott LJ at 106), it would seem that the policy immunity will only become relevant when considering actions based on liability arising at common law and only in respect of failures to act falling outside the ambit of the statutory duty to maintain: see Goff LJ at 108.
36. British Columbian cases have been chosen because the law in that Province most closely resembles the position that would arise in New South Wales upon a simple abolition of the nonfeasance rule. Unlike other jurisdictions examined by the Commission (eg England and other Canadian provinces), which impose statutory duties to repair on highway authorities, the liability of highway authorities in British Columbia has fallen to be determined solely by the application of common law principles.
37. (1978) 89 DLR (3rd) 473 (British Columbia Court of Appeal).
38. (1980) 114 DLR (3d) 577 (Supreme Court of Canada).
39. [1985] 5 WWR 570.
40. Id at 575-576.
41. Id at S76.
42. For example, in Aiken the defendant authority was not required to repair t e jetty. It could have discharged the duty by simply erecting safety barriers.
43. (1972) 129 CLR 116 at 135.
44. Although financial loss of the type suggested might well be said to be foreseeable, it is clear that “the reasonable foreseeability of a real risk of such loss does not of itself suffice to give rise to a prima facie duty to take care to avoid it”: Sutherland Shire Council v Heyman (1985) 59 ALJR 564 at 597, (1985) 60-ALR 1 at 59 per Deane J. Recovery of economic loss requires the plaintiff to show a much closer relationship of proximity than mere foreseeability of loss. The defendant must have knowledge of the plaintiff as a specific individual rather than as a member of a general class: Caltex Oil (Aust) Pty Ltd v The Dredge Willemstad (1976) 136 CLR 529. Moreover, the general reasoning which lies behind the refusal to allow recovery for economic loss in other than exceptional cases, the concern with “endless indeterminable liability” (Sutherland Shire Council v Heyman (1985) 59 ALJR 564 at 581, (1985) 60 ALR 1 at 32 per Mason J) indicate that recovery will not be allowed in highway cases, where the potential for indeterminable liability is particularly apparent.
45. Barr v Manly Municipal Council (1967) 70 SR (NSW) 119.
46. (1905) 3 CLR 50.
47. Id at 60.
48. Compare Goldman v Hargrave [1967] 1 AC 645 in which it was held that a defendant’s resources are relevant in determining the scope of a duty to abate dangers arising naturally on land.
49. Wenbam v Lane Cove Municipal Council (1918) 18 SR (NSW) Samways v Sutherland Council (1932) 11 LGR 41; Woodward v Orana Shire Council (1949) 49 SR (NSW) 63.
