I. INTRODUCTION
5.1 This chapter sets out the Commission’s conclusions and recommendations. Because different considerations arise in relation to each, a division is made between claims for personal injury or death and claims for property damage.
II. ACTIONS FOR PERSONAL INJURY OR DEATH
A. Abolition of the Non-Feasance Rule
5.2 The Commission’s principal recommendation is that the nonfeasance rule should be abolished in respect of actions for personal injury or death. The reasons for this recommendation have been presented throughout this Report, particularly in Chapter 4. The Commission is not persuaded that the concerns expressed about the economic consequences of abolition of the rule outweigh the very strong arguments for its abolition. Of particular importance to the Commission’s determination is the hardship which the rule causes to those denied compensation for personal injury and to the dependent relatives of those killed in highway accidents. However, economic considerations have been kept well in mind by the Commission in formulating its remaining recommendations, which deal with the principles upon which liability is to be determined and with the manner in which the compensation payable to successful claimants is to be assessed and paid.
5.3 It is worth recording here that the nonfeasance rule has already been abolished in England1 and that all other law reform agencies considering the matter have recommended its abolition.2
B. Determining Liability
5.4 The Commission has determined that the total protection from liability for nonfeasance conferred by the nonfeasance rule is without justification and should be removed. The question which must now be addressed is what rules should govern the scope of the liability of highway authorities for nonfeasance. Resource constraints and practical difficulties make it unreasonable to expect highway authorities to keep all roads in perfect condition at all times. Legal rules are needed to strike a balance between the competing interests involved. These include the need to keep the financial liability of highway authorities within reasonable bounds, the interests of all road users in reducing the number of accidents and the interests of accident victims in receiving compensation.
5.5 One solution to the problem would be to leave the scope of liability to be determined by existing common law principles. These principles and their likely application to highway authorities have been described in Chapter 3. The logic of such an approach is compelling as it would allow the liability of highway authorities to be determined according to the same rules as apply to all other public authorities. Nevertheless, it has been argued strongly by the Department of Main Roads and the local councils that the application of ordinary common law principles would result in an intolerable financial burden on highway authorities. Local councils have in general opposed any change to the existing law. The Department of Main Roads expressed support for the abolition or modification of the nonfeasance rule, but argued that some form of statutory protection from the resulting common law liability was necessary. It has been useful in considering the options for reform to have regard to legislation existing in other jurisdictions and to the recommendations of other law reform bodies on the matter. A review of these sources suggests the following models for reform.
1. A Statutory Duty to Repair
5.6 In England and Wales3 and in the Canadian Provinces of Alberta,4 Ontario5 and Saskatchewan,6 the nonfeasance rule has been replaced by statutory provisions which have the effect of placing highway authorities under a duty to take reasonable care to keep their highways in repair. One notable feature of the English legislation is that the burden of proof in relation to the issue of whether or not reasonable care has been exercised by the highway authority is placed upon the authority itself and not upon the plaintiff.7
5.7 In the Commission’s opinion the imposition of a statutory duty to repair would place too great a burden on highway authorities in this State. We agree with the Law Reform Commission of Western Australia that this alternative “grants legal recognition to only one of the methods by which highway authorities can act to protect users of the highway”.8 As discussed in Chapter 3, a common law duty of reasonable care might be fulfilled in appropriate circumstances by measures other than repair, such as erecting barricades or warning signs. This flexibility is important as, in some cases, the carrying out of repairs might be wasteful, for example when further rain is expected which will destroy them. Furthermore, it has been argued strongly by local councils that they do not have funds available to keep all roads under their control in repair at all times and that policy choices must be made as to the repair works which are to be carried out. A statutory duty to repair would not recognise this.
5.8 Under common law principles, public authorities enjoy substantial protection from liability for policy decisions dictated by budgetary constraints. There is no justification for placing highway authorities in a worse position than other authorities. To do so would be to replace one anomaly created by the nonfeasance rule with another, the danger being that the distinction between nonfeasance and misfeasance would be maintained for the purpose of determining whether a particular plaintiff is right of action existed under statute in respect of a failure to repair or under common law in respect of misfeasance. The Commission therefore rejects the possibility of imposing a statutory duty to repair on highway authorities. For similar reasons, the Commission also rejects the idea suggested by the English legislation that the burden of proof in highway cases should be placed on highway authorities.
2. A Statutory Duty to Take Reasonable Care
5.9 While recommending the abolition of the nonfeasance rule, a number of law reform agencies have also recommended that there is a need for a duty to take reasonable care to be specifically imposed on highway authorities by statute. In effect these provisions seek to encapsulate common law principles of reasonableness into a statutory form. The form of the duty of care recommended by the Law Reform Commission of western Australia was that:
highway authorities be required to take such care as is reasonable in all the circumstances to safeguard persons using their highways against dangers which make them unsafe for normal use.9
This formulation of the duty of care was designed to model as closely as possible the duty of care that would be imposed by the application of ordinary negligence principles. The Commission believed the imposition of a statutory duty of care was desirable because of doubts that existed as to whether a duty to take reasonable care would arise automatically upon abolition of the rule.10 In our opinion a duty of care will arise at common law11 and a statutory formulation of the duty is unnecessary unless it can be shown to be desirable for some other reason.
5.10 The New Zealand Torts and General Law Reform Committee has argued that a statutory formulation is desirable in the interests of greater certainty. The Committee commented:
It is always tempting to the common law reformer to consider whether the matter might be left to be dealt with by the powerful action of the ordinary rules of negligence and/or nuisance, and there is no reason to suppose that in the long run, and after a substantial period of case law refinement, this would necessarily be an unsatisfactory prescription. The difficulty is that, without any statutory guidance, a dramatic change from one rule to its opposite could result in a period of experimentation and uncertainty of undue length.12
While the committee’s goal of promoting certainty in litigation is laudable, we question whether the duty of care recommended by the Committee in fact adds anything to the position that would arise at common law. The Committee recommended the enactment of legislation:
imposing a duty on highway authorities to take such care as in all the circumstances is reasonable to ensure that each “highway” for which they are reasonable is reasonably safe for persons using it.13
No definition of reasonableness is given and it is clear that the provision can only be given meaning by recourse to established common law principles of reasonable conduct. In saying this we are not being critical of the form of the duty chosen, as we agree with the Committee that it is important that the courts be allowed to approach each case in a flexible manner. However, we are not persuaded that there is any advantage in the Committee’s approach over an approach which simply leaves the duty of care owed by highway authorities to be determined entirely by common law principles. Indeed, it is the Commission’s opinion that there are a number of good reasons why a simple abolition of the rule is to be preferred.
5.11 First, there is difficulty in determining the appropriate wording of a statutory duty to take reasonable care. There is a danger that the particular form of words used will be construed in a technical way, inhibiting the flexibility of the courts and leading to unjust or inconsistent results. Such problems have occurred in the area of occupier’s liability in which the law has sought to apply particular formulations of the duty of care owed to particular classes of entrants.14
5.12 Secondly, as has been pointed out above, the existence of special rules governing the liability of highway authorities as distinct from other public authorities in nonfeasance cases threatens to perpetuate the unsatisfactory distinctions that characterise the existing law. This might be justified if it could be shown that there was good reason why highway authorities should be treated differently from all other public authorities. However, in our opinion, this is not the case. Even if the statutory duty is merely designed to duplicate the common law, its formulation is difficult and discrepancies are bound to arise as common law principles evolve over time. For example, although the Law Reform Commission of Western Australia sought to equate highway authorities with other public authorities in recommending the form of duty it chose, its proposals make no distinction between action at the policy and operational levels. The result is that policy decisions of highway authorities would be liable for review by the courts on the grounds of reasonableness. Therefore, under the Western Australian proposals, an important concession available to other authorities at common law would be denied to highway authorities.
5.13 Thirdly, there would be difficulty in defining the scope of application of such a duty. It would clearly be necessary to define the terms “highway” and “highway authority” with some precision to ensure that all situations to which the nonfeasance rule might apply at present were covered but that other unintended applications were avoided. if a wide definition of highway is employed, for instance to include drains, lights and other ancillary works,15 there is a danger of overlap between the statutory duty placed on highway authorities and existing common law duties placed on other public authorities which maintain structures in the roadway. Similar difficulties might also arise between the statutory duty of care and the common law duty of care presently owed by highway authorities in respect of artificial structures. Both situations are likely to lead to costly and unproductive technical argument on the rules to be applied in particular cases.
3. A Duty of Care Defined by the Common Law
5.14 The Commission does not favour the imposition of a statutory duty of care on highway authorities. The Commission recommends that the duty of care owed by highway authorities should be left to be determined by established common law principles. A simple statutory abolition of the nonfeasance rule will allow this to occur.
5.15 The Commission has taken this view for a number of reasons. First, such an approach will allow the liability of highway authorities to be determined according to the same principles as apply to other public authorities and will clearly remove the need for the technical and unsatisfactory distinctions required by the current law. Secondly, it is our opinion that the common law offers the fairest and most appropriate mechanism for determining the scope of liability of highway authorities. Our analysis of the relevant principles in Chapter 3 shows that the common law provides a flexible and sophisticated approach to this problem. Importantly, the special nature of public authorities and their responsibilities are recognised by the discretionary function immunity, discussed at paras 3.14-3.15. These principles provide greater protection to highway authorities than any of the models for a statutory duty of care discussed above and they are therefore more appropriate to the difficult situation faced by highway authorities in this State. Thirdly, this approach has the advantage of simplicity which, in an area of law that has for too long been bedevilled by complexity, should not be underestimated.
5.16 The Department of Main Roads has argued that this solution ignores the problems that arise where more than one highway authority share responsibility for the maintenance of a particular road16 or where some other public authority is responsible for the maintenance of a particular structure, for example a drain forming part of a road. The Commission acknowledges that in such cases it might be necessary for the court to apportion liability between the various authorities involved but can see no problems with this procedure. The common law already provides appropriate mechanisms for apportioning liability. In any case, the need to apportion liability will be removed if the plaintiff’s claim is to be made within the Transcover scheme as is recommended later in this chapter (para 5.27).17
4. Statutory Negligence Criteria
5.17 Even if the duty of care owed by highway authorities is left to be determined by the common law, it is still possible to enact legislation which provides that, when determining whether a highway authority has satisfied this duty of care, the courts shall have regard to a number of specified matters. Such a approach has been taken in England and was recommended by the Law Reform Commission of Western Australia, although in each case the question of reasonableness falls to be determined in the context of the statutory duty imposed by the relevant legislation.
5.18 The Department of Main Roads has argued that such criteria are needed to keep the liability of highway authorities within reasonable bounds. It suggested that the form of the provision follow that suggested by the Law Reform Commission of Western Australia, namely that:
when determining whether a highway authority has exercised reasonable care, a court should be entitled to consider, among other matters, the following, namely,
(i) the character of the highway;
(ii) the character and the amount of traffic which could reasonably be expected to use the highway;
(iii) the precautionary measures appropriate to safeguard persons using a highway of that character at the time, and in the location, the accident occurred;
(iv) the financial and other resources available to the authority for use in connection with the highways for which it is responsible;
(v) the condition or state of repair in which a reasonable person would have expected to find the highway;
(vi) whether the authority knew, or ought reasonably to have known, that a danger had occurred in the highway;
(vii) whether, before the accident in question happened, the authority could reasonably have been expected to safeguard users of the highway against the danger which caused the accidental.18
5.19 Our view is that such a provision is unnecessary and adds nothing to the common law as it is already open to the courts to consider all of the criteria mentioned. Probably the most unusual matter contained in the above list is that relating to the financial and other resources of the highway authority. There is long-standing New South Wales authority that this matter is a relevant circumstance for the consideration of the courts in highway cases where misfeasance is at issue19 and there seems to be no reason to suppose that this will not be carried over into cases of nonfeasance once liability in that area is established. It is also clear that factors such as the nature and location of the road will be taken into consideration.20 Furthermore, we find merit in the view of the New Zealand Torts and General Law Reform Committee21 that any “explicit particularisation” of the matters to be considered is undesirable because it might fetter the flexibility of the courts in balancing other factors in appropriate cases. Accordingly, the Commission does not recommend the inclusion of statutory negligence criteria in its proposals for reform.
5.20 The Commission acknowledges that the case for inclusion of statutory criteria is strengthened if, under the Transcover scheme, liability is to be determined initially by administrative decision. The criteria could be used as a guide by the administrative officer making the determination. However, the danger that the criteria will be applied rigidly and become inflexible is perhaps even greater in the context of administrative decisions. Accordingly, the Commission remains of the view that the criteria should not be given statutory force. If, contrary to our recommendation, statutory criteria are to be included, they should contain an express direction that, in addition to the other matters raised, the court or administrative officer should have regard to such other matters as are relevant in the circumstances of the case. This would stress the importance of looking at all the facts of the case while still allowing attention to be given to the specific matters contained in the list of criteria.
5.21 A further point relating to statutory criteria should also be mentioned. To apply such criteria only to cases of liability for nonfeasance would mean that all the old law as to the distinction between nonfeasance and misfeasance, and the various exceptions to the nonfeasance rule, would remain relevant to the question of whether or not the statutory criteria applied in a particular case. Whether this will lead to elaborate argument on the point is perhaps open to question, given the limited practical significance of the statutory criteria. However, as it is clear that similar criteria are already taken into account by the courts in misfeasance cases, our view is that, if statutory negligence criteria are thought to be desirable, they should be expressed to apply in all negligence actions against highway authorities whether alleging misfeasance or nonfeasance.
C. Determining Benefits
1. Transcover
5.22 The Transport Accidents Compensation Act 1987 came into operation on 1 July 1987. In the cases to which it applies the Act abolishes the common law right to damages for personal injury or death and instead creates a statutory compensation scheme (“Transcover”). Where a person would previously have had a claim for personal injury against the owner or driver of a motor vehicle,22 the claim must now be made under the Act.23 This means that there is an entitlement to benefits under the Act but not to damages assessed at common law.
5.23 The Act only applies to claims against owners and drivers of motor vehicles. Claims against highway authorities for accidents caused by the condition of the highway are not covered by the Act and will still be made at common law. Where there is the possibility of two claims arising in respect of the same injury, one under the Act and one at common law, the plaintiff may choose to pursue one or the other but not both.24 If the statutory claim is to be pursued, it must be made within three months.25
5.24 The introduction of Transcover has left highway authorities in a vulnerable position. Plaintiffs might well be tempted to pursue a claim at common law in respect of the condition of the highway in order to recover common law damages instead of the benefits available under the Act and this could lead to a substantial increase in the number of claims made against highway authorities. As under the present law these claims can only be successful where misfeasance can be shown, it is likely that a large proportion of the increased volume of litigation against highway authorities will be devoted to semantic argument on the borderline between misfeasance and nonfeasance. The Commission doubts that highway authorities can draw much comfort from recent case law discussing the distinction, as it has tended to be liberal in its interpretation of the concept of misfeasance.26
5.25 The financial position of highway authorities is further eroded by the way in which Transcover affects contribution rights. For example, where an action is taken against a highway authority at common law in a situation where it is partly responsible for the injury with the driver of a motor vehicle, the highway authority will be liable to compensate the plaintiff fully and will not be able to seek a contribution from the other negligent party.27 However, if the claim is made under the Act in respect of the driver’s negligence, the Government Insurance Office will still be able to pursue a claim against the highway authority. This claim is not limited to a demand for contribution towards benefits actually paid, but can be made for the full amount to which the highway authority would be liable to the plaintiff as the Act assigns the Government Insurance Office full rights of subrogation.28 Therefore, in either case, the highway authority would be liable for the full amount of the plaintiff’s claim even though it was only partly responsible for the accident.
5.26 All these difficulties can be overcome if highway authorities are brought within Transcover. Other advantages include the following.
- A more comprehensive transport accident scheme
The addition of the authorities -responsible for the control and maintenance of highways is a logical extension of the existing scheme. Their inclusion would lead to greater uniformity of benefits received by those injured in transport accidents and should help to promote co-operation between highway authorities and the administrators of the Transcover scheme. The Commission sees co-operation between these parties as being important, particularly with regard to strategies aimed at reducing the level of accidents.
- Rationalisation of the procedures for making claims and the assessment of damages
As stated in Chapter 4, many local councils commented adversely on the costs of conducting litigation at common law and on the large lump sum awards for damages being made. In particular, they commented upon the legal and administrative costs involved in defending a large number of what are often minor claims. Transcover is designed to address the high level of cost involved in personal injury litigation. It would limit the amount of litigation in which highway authorities would be involved and limit the level of benefits payable for minor injuries. People with serious disabilities would no longer have damages assessed on a once-and-for-all basis, but would receive benefits to meet there needs over time.
Local councils also expressed concern at the difficulty involved in policing claims for nonfeasance. They argued that it would be extremely difficult to guard against fraudulent claims, given that an action for damages might be commenced some years after the date of the alleged accident in which time the highway conditions might have changed. Under Transcover the payment of benefits will be subject to compliance with strict reporting requirements.29
A major concern of local government is the increasing difficulty it is experiencing in obtaining insurance to cover personal injury claims. A number of local councils argued that they would be unable to obtain insurance to cover the liability that would result from the abolition of the nonfeasance rule. Transcover would provide a solution to this problem.
2. Extension of Transcover
5.27 For these reasons, the Commission recommends that claims against highway authorities in respect of accidents arising out of the condition of the highway should be brought within the scheme introduced by the Transport Accidents Compensation Act 1987 (Transcover). This recommendation sits side by side with our recommendation that the nonfeasance rule should be abolished. Therefore, under our proposals, benefits under the scheme will be payable on proof of fault, whether arising from nonfeasance or misfeasance. Eligibility for benefits will continue to be assessed according to common law negligence principles, but damages assessed at common law will not be available as compensation will be determined according to the system of benefits provided by Transcover.
5.28 To ensure that the scheme is comprehensive, and to encourage uniformity in the area, the Commission further recommends that the Transcover scheme should also apply to claims made against other public authorities responsible for the maintenance of structures forming part of or on a highway. This means that all claims against public authorities maintaining any part of the highway or any associated facility will be dealt with in the same way. Expansion of the scheme in this way will also avoid the possibility of technical arguments similar to those now surrounding the source of authority doctrine. For example, if an installation maintained by the Metropolitan Water Sewerage and Drainage Board were to decay causing a deterioration in the surface of the highway, it would be undesirable to seek to distinguish between the responsibility of the highway authority for the road and that of the Water Board in order to determine whether a claim arose under Transcover or the common law. This recommendation will extend the advantages of inclusion in Transcover to other public authorities maintaining facilities in highways, but will not expand the scope of their liability as they are liable for nonfeasance in any event.
5.29 It is noted that these recommendations constitute a significant departure from the existing nature of the Transcover scheme in that claims in respect of highway and other authorities will be allowed even if they do not arise in connection with the use of a motor vehicle or other form of transport. For example, a claim might be made by a pedestrian who stumbles into a pot-hole. Claims against private individuals who create a nuisance on or negligently interfere with the surface of the highway would not be included within Transcover but would continue to be made at common law. Therefore, if a landowner dug a hole in the footpath outside his house in order to lay a pipe and failed to repair the hole, an action at common law would be available to anyone injured as a result. However, a claim under Transcover might also be available if the injured person could show that the highway authority responsible for the maintenance of the footpath had been negligent in not remedying the defect. If a claim under the scheme was successful, the Government Insurance Office as administrator of the scheme would still be able to recover damages against the negligent third party pursuant to its right of subrogation to the claimant’s common law remedies.30
5.30 The possibility of claims for common law damages against individuals who create dangers in the highway requires that special consideration be given to the position of those who carry out work on highways and highway structures on behalf of the authorities responsible. These include employees of the authorities and independent contractors and their employees. Under our recommendations, the authorities will be protected from claims for common law damages. However, without express provision this protection would not extend to their employees or to independent contractors and their employees. All might still be sued at common law if they are personally guilty of negligence in the performance of their duties. This situation is obviously unsatisfactory and the Commission recommends that common law actions against employees of these authorities or independent contractors and their employees should be prohibited in cases where the injured party would also have a claim for benefits in respect of the same conduct under the Transcover scheme. Such benefits would be available in cases where the public authority concerned is vicariously liable for the negligence of its employee or independent contractor. In respect of employees this will include cases where the conduct concerned falls within the course of the employee’s employment. The Commission sees no objection to employees being exposed to personal liability for acts falling outside the course of their employment.
3. Contribution to the Transcover Fund
5.31 The Transcover scheme is funded by contributions from owners of motor vehicles and those operating public transport services. This reflects the types of claims to which the scheme currently applies. Under our recommendation, a new class of claim would be allowed against the Transcover fund, that is, claims against highway authorities and other public authorities responsible for the construction and maintenance of roads or related facilities. In the Commission’s opinion the costs of these claims should be funded, in part at least, by the authorities through whose negligence the claims are incurred and in whose power it is to take steps to minimise the risk of claims being made. This would provide an incentive to highway authorities to carry out maintenance and to take other measures aimed at preventing accidents.
5.32 Provision is already made under the Act for public authorities operating public transport services to contribute to the Transcover fund on a “pay-as-you-go” basis.31 This provision could be expanded to incorporate highway authorities and other public authorities affected by our recommendations. However, the Commission is concerned that this basis for contribution, which in effect would make highway authorities self-insurers, could expose individual authorities to an intolerable burden in the event of a major accident giving rise to multiple claims, for example if a large number of people suffered serious injury in an accident involving a tourist bus. In discussion with the administrators of the Transcover scheme it became apparent that similar concerns had been expressed in relation to certain of the authorities currently contributing to the scheme and that consideration was being given to assessing the contribution of these authorities on a premium basis. Use of a premium basis would allow for averaging of costs between like authorities and from year to year, although it would still be open to impose higher premiums on authorities with particularly poor claims records. The Commission recommends that contributions to the Transcover fund by highway authorities and other public authorities affected by our recommendations should be assessed on a premium basis.
5.33 A further question is whether the premiums collected from these authorities should be calculated so as to recover the total cost to the fund of claims against them. In the case of the local councils, without additional government funding, this would leave the burden to be borne by ratepayers. Although this is not necessarily unfair (see para 4.9), a case can be made that at least part of the cost of claims should be distributed through registration charges to the general body of motorists who benefit directly from the use of roads.32 This question raises general issues of funding of local councils and related policy considerations. These matters are left for consideration by government. Similarly, the precise details of the manner of assessment and payment of contributions are left to be determined by negotiation between the administrators of the fund and the authorities concerned, in consultation with government.
III. ACTIONS FOR PROPERTY DAMAGE
5.34 The Commission has given careful consideration to the question whether the nonfeasance rule should also be abolished in respect of claims for property damage. From a strictly legal point of view there is no justification for limiting the scope of the abolition of the rule to claims for personal injury and death. The general rules of negligence which apply to other public authorities make no distinction between personal injury and property damage and without special provision being made the application of these rules to highway authorities would expose them to liability for property damage. If the exemption for nonfeasance is maintained in property damage cases the unsatisfactory legal rules defining the scope of the exemption for nonfeasance would be perpetuated. In the Commission’s opinion this is undesirable.
5.35 However, the arguments in favour of maintaining the immunity for property claims are not based in legal principle. Rather they are economic and pragmatic. Highway authorities have argued that the abolition of the nonfeasance rule would expose them to an extremely large number of minor claims for damage to vehicles. They express concern at the scope for fraudulent claims in this area and argue that the administrative and legal costs in processing and defending claims, and the costs of settlements and judgments against them, would be intolerable. While similar concerns were expressed in relation to actions for personal injury or death, the Commission believes that these are in large part answered by the inclusion of these claims within the Transcover scheme. This option is not available in relation to claims for property damage as these are outside the Transcover scheme, which is only designed to encompass claims for personal injury or death.
5.36 The hardship caused by the rule in respect of claims for property damage is also less significant. This is not to say that the need for compensation of those who suffer property damage because of the fault of a highway authority is not real or important. As the Law Reform Commission of Western Australia pointed out:
Even where only property damage is suffered, the consequences may still be very serious, especially if the property damaged or destroyed was an important income producing item such as a small qarrier’s motor truck or a farmer’s tractor.33
However, the hardship is mitigated by the fact that many people carry comprehensive insurance which would cover property damage to vehicles.
5.37 In seeking to balance the case for and against abolition, the Commission sought details from highway authorities to assist it in determining the number of claims that might be expected, for example details of the number of claims that are currently rejected in reliance on the nonfeasance immunity. It became apparent that these details are not available. It has been difficult, therefore, to evaluate the strength of the highway authorities’ arguments, although in general the Commission believes that highway authorities have been unduly apprehensive in the assessment of their legal liability following the abolition of the rule (see paras 4.15, 4.16).
5.38 The Commission can see some advantage in maintaining the immunity for property damage for a limited period in order to allow- the effects of its abolition to be gauged with more certainty. The number of claims made for personal injury following the abolition of the rule in that area should provide a useful guide and a period of grace would allow highway authorities the opportunity to gather more concrete evidence in support of their arguments. Accordingly, while the Commission believes in principle that the nonfeasance rule should also be abolished in respect of claims for property damage, to enable the financial consequences to be gauged, it recommends that further consideration of abolition in this area should be postponed for a period of five years following the abolition of the rule in respect to claims for personal injury and death. A five year period should allow sufficient time for meaningful data to be collected (over, say, three years) and assessed and for any trends to be identified. Inherent in this recommendation is recognition of the fact that the need for reform in the area of property damage is not as pressing as in the personal injury area (see para 5.36) and the belief that concerns about the economic effect of the abolition of the immunity in respect of property damage should not be allowed to prejudice the urgent need for reform in respect of claims for personal injury or death.
IV. DRAFT LEGISLATION
5.39 A draft bill providing for the abolition of the nonfeasance rule in respect of actions for personal injury or death has been prepared and is set out in Appendix B. The Bill does not make provision for the recommendations made in this Report relating to the extension of the Transcover scheme and associated matters. These matters have been excluded because the legislative drafting required was considered better left to those concerned with the implementation and review of the Transcover scheme.
FOOTNOTES
1. Highways (Miscellaneous Provisions) Act 1961 s1.
2. Torts and General Law Reform Committee (New Zealand) The Exemption of Highway Authorities from Liability for Non Feasance (1973); Law Reform Committee of South Australia Report on Reform of the Law Relating to Misfeasance and Non-Feasance (25th Report 1974) and Report Relating to the Review and Reappraisal of the Twenty-Fifth Report (51st Report 1986); Law Reform Commission of British Columbia Report on Civil Rights: Part V Tort Liability of Public Bodies (1977) Chapter Two; Law Reform Commission of Western Australia Report on the Liability of Highway Authority for Non-Feasance (Project 62, 1981).
3. Highways Act 1980 ss4l(l) and 58.
4. Municipal Government Act RSA 1970 C 246 s178.
5. Municipal Act RSO 1970 C 284 s427.
6. Rural Municipalities Act SS 1972 C 101 s206; Urban Municipalities Act SS 1970 C 78 ss161 and 162.
7. Highways Act 1980 s58(l).
8. Law Reform Commission of Western Australia, note 2, para 8.8. It is noted however that under the English legislation it is a defence for a highway authority to show that it had taken reasonable care to ensure that the highway was not dangerous for traffic.
9. Law Reform Commission of Western Australia, note 2, para 8.6.
10. Ibid.
11. See paras 3.16 to 3.20. The doubts raised by the Law Reform Commission of Western Australia are discussed and dismissed in Ch 3, fn 35.
12. Torts and General Law Reform Committee (New Zealand), note 2, para 7.
13. Id paras 11 and 18.
14. See J G Fleming The Law of Torts (6th ed Law Book Co 1983) at 416-420.
15. Such a definition was recommended by the New Zealand Law Reform Committee and the South Australian Law Reform Committee. The Law Reform Commission of Western Australia did not address this problem.
16. Such cases can and do arise under the State Roads Act 1986 and Local Government Act 1919 which give the Department of Main Roads and local councils many concurrent powers in relation to classified roads.
17. However, some concept of apportionment might remain necessary to determine the levels of contributions the authorities involved might have to provide to the scheme.
18. Law Reform Commission of Western Australia, note 2, para 8.21.
19. Miller v McKeon (1905) 3 CLR 50. See paras 4.46 to 4.48.
20. Ibid.
21. Torts and General Law Reform Committee (New Zealand), note 2, para 11.
22. And certain other forms of transport to which the Act applies, which are not relevant here.
23. Sections 31(l) and 40(l).
24. Section 41.
25. Section 41(2)(b). This time limit is subject to extension at the discretion of the Government Insurance Office: s41(3).
26. See McDonogh v Commonwealth (1985) 61 ACTR 22; Marr v Holroyd Shire Council (Unreported) Supreme Court of New South Wales, 23 June 1986. These cases are discussed at paras 2.10 and 2.11 respectively.
27. Section 40.
28. Section 42.
29. A benefit is not payable unless the accident is reported within 28 days either of the accident or of the date on which the plaintiff has recovered sufficiently to be able to make a report s34(l), (2). A discretion to extend the period to 90 days is given to the GIO by s34(3). See also s207.
30. Section 42.
31. Section 29.
32. However, it would not seem fair to expect motorists to contribute a proportion of the cost of claims arising from accidents not involving the use of motor vehicles, for example claims by pedestrians who trip over defects in the footpath.
33. Law Reform Commission of Western Australia, note 2, para 6.5.
