Brodie & Anor v Singleton Shire Council S44/1999 [2000] HCATrans 508 (31 August 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S44 of 1999

B e t w e e n -

SCOTT MUNN BRODIE

First Applicant

LONDAY PTY LIMITED

Second Applicant

and

SINGLETON SHIRE COUNCIL

Respondent

Office of the Registry

Sydney No S69 of 1999

B e t w e e n -

CATHERINE GHANTOUS

Applicant

and

HAWKESBURY CITY COUNCIL

Respondent

Applications for special leave to appeal

GLEESON CJ

GAUDRON J

McHUGH J

GUMMOW J

KIRBY J

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 31 AUGUST 2000, AT 10.22 AM

(Continued from 30/8/00)

Copyright in the High Court of Australia

_____________

GLEESON CJ: Yes, Mr Morrison.

MR MORRISON: Yes, thank you, your Honours. Your Honours, a question was raised yesterday afternoon as to whether or not misfeasance had been argued at first instance. The written submissions which were provided to the judge at first instance were not reproduced for this Court, but they were reproduced for the Court of Appeal below and reading from those submissions, paragraph 23 of the plaintiff's submissions said:

The strongest ground for the plaintiff's success in the action is that this is a case of misfeasance and not nonfeasance.

And then it goes on to deal with Grafton City Council. So that the matter was very squarely raised before his Honour.

The second matter that I need to deal with at the outset is the matter raised by his Honour Justice Gummow and that is the question of the statutory framework. Might I hand up to the Court a short summary of the statutory framework and the relevant parts of the statute attached to it.

GLEESON CJ: Thank you.

KIRBY J: Can it be said against you, this being a special leave application, that your proper course was to have sought to tender at trial the evidence relevant to the cost, inconvenience and all the other elements, making a formal submission that the authorities, in so far as they stood against the proposition, that nonfeasance was not part of the law of Australia, should not be followed? So that there would then be, on the record, the materials which would allow a court to which the matter was remitted to reconsider the matter with the benefit of that evidence.

MR MORRISON: We would say no. We would say that it does not automatically follow that in every case where negligence is alleged against a council, a council will take a defence based upon the question of reasonableness of its conduct and only where it does so is there a need for evidence about cost, about issues of policy or operational matters. That was not the way in which this case was conducted. It was conducted by the Council on the basis that it was a simple case of: was it liable for what occurred to this plaintiff or not?

No issue was raised as to whether or not Council could reasonably have met the expense, and one can understand why it was not raised in this case. After all, it is perfectly obvious that a workman with a wheelbarrow of gravel in an hour could have dealt with this particular problem.

McHUGH J: But that hardly faces up to the problem. The Council begins on the basis that at least if it is a case of nonfeasance it is under no duty. Unless you can prove some positive act, then you are out of court on the authorities but, if you wanted to challenge the traditional doctrine, was it not incumbent on you to prove the facts that would give rise to the duty of care?

MR MORRISON: With respect, the facts that give rise to the duty of care, absent some issue from the Council in relation to the reasonableness of its conduct, do not have to turn on evidence which in any event is squarely within the Council's knowledge and not within the plaintiff's of the way in which it conducts its affairs, what the cost of rectification would be, what its policies were at the relevant time. That evidence is adduced by councils in cases where it is said that the cost would be excessive or unreasonable. In cases such as this case that point was never taken. It was never raised by the Council. It never suggested that it could not have met the cost. Absent that - - -

McHUGH J: But that may go to breach, but you have to insert an affirmative duty. Your arguments seem to have proceeded upon the basis that a highway authority such as a council is under an obligation to take affirmative action in the same way as an employer or somebody else in a relationship is. Ordinarily, affirmative duties are imposed by reason of the ownership or control of property, or by reason of some contractual relationship, or sometimes a status as in the case of a common carrier. But, ordinarily, there is no obligation on anybody, particularly statutory authorities, to take affirmative action. I am not sure that in this particular area of law you can just fasten on a particular road and say there is a duty of care to take affirmative action. You have to look at this matter in a very broad context.

GLEESON CJ: I would add, if you are focussing on cost, why on earth would you focus on the cost of fixing the particular place where this particular plaintiff turned on her ankle?

McHUGH J: Exactly.

GLEESON CJ: Why would not the duty of the Council be to ensure that throughout the length and breadth of the area controlled by the Council there was no place in which a person could twist her ankle?

MR MORRISON: The short answer to your Honour's point is that what was fixed on was the need to fix the 50-metre stretch of footpath which was for practical purposes the only bit of suburban footpath left in the central business district. That was the area which had to be fixed.

McHUGH J: Mr Morrison, that hardly answers what the Chief Justice was putting to you. If the Council was liable for not taking action here because it was in breach of an affirmative duty, then obviously it must have had an affirmative duty to search out all its roads, all its bridges and so on, to see whether or not there was any danger there. You just cannot look at these things in this particular area of the law by concentrating on a very small area of law. There are matters, one would have thought, such as the frequency upon which roads are used; who uses them; are they exclusively used by ratepayers; or are they roads which you often find in municipalities where most of the road users are out of the district. So, if you are going to impose this duty on councils, the ratepayers are going to be subsidising accidents to other people who do not even live in the particular area.

MR MORRISON: Does not the answer lie, your Honour, in saying that the way in which the duty has to be met will differ according to the reasonableness of the particular situation and the response will differ? So that if one is talking about a distant suburban area with very low usage and a relatively low degree of risk, what is called for from the Council will be very different from what is called for in this situation.

KIRBY J: Was it shown in this situation that this was the only footpath in the central business district in question that was not paved?

MR MORRISON: It was and that was the very point.

GLEESON CJ: But why would you limit attention to the central business district? Is it the only area affected by the Council's responsibilities?

MR MORRISON: No, your Honour. The Council's responsibilities, however, or the way in which it fulfils its responsibilities, will necessarily differ according to what is reasonable. What is reasonable in the central business district may not be reasonable in a different area of the Council's responsibilities.

McHUGH J: But, with great respect, you are confusing breach of duty and standard of care with duty itself. If there is a duty on this Council it is a duty in respect surely of all its roads. It has an affirmative duty at least to inspect its roads. Now, that is the problem, it seems to me, that you have to face up to, that councils have an affirmative duty to employ people to inspect their roads, to inspect bridges and so on. In a particular case then the question may arise, whether by reason of cost or otherwise, there has been a breach of it but the first thing is: is there an affirmative duty of the nature that you seek to impose? Just as employers have an affirmative duty, occupiers of lands have affirmative duties, but the received doctrine is that merely because a council has control of a road does not put it in the same category as other ownership of property or occupation of property.

KIRBY J: That is the received doctrine you want to challenge starting with the statute, I think.

MR MORRISON: Indeed, it is, and may I answer your Honour indirectly by taking your Honour from the statute forward through the way in which we say the duty of care is established and then the way in which we say that a positive duty can arise in these circumstances. Now, the starting point, your Honour - - -

HAYNE J: Just before you embark on that, so that you may address it as you go through it, at least as the argument is developed thus far, it seems to me that the duty for which you contend is a duty that arises from two facts, or two considerations, only, namely, existence of power and foreseeability of injury. If there is any other feature which you say is to be taken into account in identifying the existence of the duty, it would be of assistance to know what it is.

MR MORRISON: Thank you, your Honour, and I will deal with that as I go through it. First of all, the starting point is the Local Government Act which, as at 1990, defined a "Road" under section 4 to include a "pathway". Under section 235 - - -

GUMMOW J: Is there a definition of "public road"?

MR MORRISON: There is, and that is the definition which includes a pathway, your Honour, and that is reproduced. The definition of "Road":

"Road" means road, street, lane, highway, pathway, or thoroughfare, including a bridge, culvert -

et cetera.

GUMMOW J: I know. Is there a definition of "public road"?

MR MORRISON: There is. "Public road means road, which the public are entitled to use."

GUMMOW J: Where is that?

MR MORRISON: That is not reproduced but I have the volume here and I can hand it up to your Honour - - -

GUMMOW J: It should be copied and supplemented with what we were given.

MR MORRISON: The reason it was not copied, your Honour, was because the definition of "public road" simply took us back to "road" irrelevantly in relation to the definition of "pathway". So, it seems superfluous, but nonetheless, in section 4, public - - -

GUMMOW J: The trouble is section 240 uses the expression "public road".

MR MORRISON: Yes. Well, "public road" means road used by the public according to the section, and that is why we went to the definition of "road" to tell us what "road" included. Your Honours, the next - - -

KIRBY J: Does that include a footpath?

MR MORRISON: It includes a footpath, or a "pathway" is the term used. Section 235 - - -

HAYNE J: "Pathway" itself being a defined term, is it not? If we are going to follow the statutory change, for goodness sake, let us follow it all.

MR MORRISON: "Pathway" means a "public road provided for the use only of foot passengers and of such classes of vehicles propelled by foot passengers as may be defined by ordinance". That is also in section 4.

KIRBY J: I think it might be convenient if we can have copies of those.

MR MORRISON: That will be provided.

KIRBY J: If we have the full statutory scheme.

MR MORRISON: The balance of section 4 will be copied. Section 235 is provided and, in permissive terms, that gives the power to build roads. If your Honours go to section 235:

The council may provide any public road -

and then sets out in greater detail what could be done. Section 240 - - -

CALLINAN J: I do not have section 235.

MR MORRISON: I will hand up a copy to your Honour.

GLEESON CJ: It is following the sheet which has Part IX.

MR MORRISON: Yes, that is so. It is immediately after the opening section of Part IX of the Local Government Act.

CALLINAN J: I do not have it.

MR MORRISON: I will provide a copy to your Honour.

GUMMOW J: Well, we have the materials in the other case fortunately.

MR MORRISON: Section 235 may provide any public road, and so on, and then section 240, the power to maintain, and it is in relevantly identical terms, equally permissive rather than imperative.

KIRBY J: At some stage when you have got through your argument if you would come back to the legislation which was in Pyrenees because I assume that was permissive as well, but somehow it was expanded to a different - - -

MR MORRISON: Indeed, your Honour, and it was permissive in Buckle, and the High Court found a duty of care there. It was permissive in Turner, and the High Court found a duty of care there. What we have done here is to reproduce the legislation in both Buckle and Turner for your Honours' assistance.

McHUGH J: Yes, but what you have to keep firmly in mind is that this distinction between misfeasance and nonfeasance is not artificial or arbitrary. The Chief Justice put to you yesterday, the Council is under a duty not to create traps. They are also under a duty not to create nuisances, so if they do something positively, they have the same obligations as any other person who is liable to be sued. But when you are dealing with affirmative duties to take action, then you are in a different category. So, it is not enough to say, "Well, in Buckle, their powers were permissive", or, "In Pyrenees, their powers were permissive". In each of those cases, the Council did things: in Pyrenees they actively intervened, to some extent. In Buckle, again they created a nuisance.

You are leaving aside your argument about misfeasance, which may or may not be a good argument. So far as the immunity doctrine is concerned, nonfeasance, you are in a different category. You have to say something more, it seems to me, or at least all the cases say, more than a statutory power and more than foreseeability of risk. That is why Justice Hayne asked you to emphasise what is it over and above foreseeability of statutory power that you rely on.

MR MORRISON: Thank you, your Honour, and, if I may, I will come to that in a moment, but it is probably more conveniently done in sequence. First of all, the question of the relationship between the plaintiff and the Council: the evidence was that the plaintiff was a long-term resident employed very close to where the accident occurred; that it occurred in the central business district in an area set aside for business and shopping; that this was effectively the only section of suburban footpath; had been there a long time; a perfectly satisfactory piece of suburban footpath when created, but no longer suitable, manifestly so at the time when the accident occurred, and unsuitable not - - -

GLEESON CJ: Have you passed from the statutory provisions?

MR MORRISON: I have, your Honour, and I am dealing with the second - - -

GLEESON CJ: Well, could I ask you a question about the statutory reasons before you leave them? While you are supplementing the statutory material there is a matter about the statute that I think we all assume, and I do not think it is controversial, but I would just like to have the references to it.

MR MORRISON: Yes.

GLEESON CJ: When the Council decides to exercise a power of the kind referred to in section 240, where does the money come from?

MR MORRISON: Thank you, your Honour. If I may take that on notice; I assume it comes from general council revenues, but I will have a look at that. Your Honours, the findings of the trial judge indicate that the context of this injury was one of activity by the Council, not inactivity. Now that is of particular importance having regard to the matter raised by Justice Hayne and it is particularly important because, if one turns to the sort of tests laid down in Pyrenees, it is significant in determining whether or not there is a duty of care. The shopping mall at one end is created in 1984, the Franklin's shopping - - -

McHUGH J: Well, when you say it created a shopping mall, the trial judge's finding was it created a pedestrian mall. Now, is that one and the same thing?

MR MORRISON: Yes, it is. I may be using the term loosely, but what happened, and the evidence indicated, was that George Street was closed so that what had been an ordinary suburban vehicle thoroughfare became an area for foot traffic between shops. That was not controversial between the parties and his Honour describes it in more detail elsewhere, but that is what it was. The footpath was then paved in a different way and the paving was taken slightly around the corner into the road where this accident occurred but falling just short of the point of the accident.

At the other end of the remaining section of suburban footpath, in the following year opened a development approved by the Council, and his Honour refers to that at 253 - 36, which was the Franklins shopping development, a large supermarket, associated shops and a large car park, and that meant that this relatively narrow area of suburban footpath had ceased to be a suburban footpath but had now become a major link in an urban area between two substantial shopping precincts.

Now, it is in that context that we would say that a duty of care arises. It is not a context of total inactivity by the Council. The Council has materially contributed to the risk, the risk being a risk that greater pedestrian usage would, first of all, cause what had been grassed areas, level with the footpath on either side of it, to be worn away and, secondly, that the greater pedestrian usage would cause persons to have to step off the footpath.

McHUGH J: Well, what difference would it make if it had been a piece of grassland zoned rural A, rezoned, and the Council had put them all in for the first time? Would it still owe a duty of care?

MR MORRISON: If it had been an area simply of grassland, your Honour, first of all, in this particular case there would have been no impact on it from Council's own activities.

McHUGH J: But your argument seems to come to this, that because they have created this pedestrian mall, therefore, they had an affirmative view to make sure it never became unsafe or at risk to anybody. Why would not that principle apply to any road that the Council made or any other mall?

MR MORRISON: I am sorry?

McHUGH J: Or any other pedestrian mall? I do not think it takes you very far to say they have developed or created a pedestrian mall. That is what they do in respect of roads. Why should that - - -

MR MORRISON: But is not the point that if they choose to create the sort of development that was created here or, in one case, to approve the sort of development that was created here, that enlivens their responsibility in respect of an existing area?

McHUGH J: But why?

MR MORRISON: Because it was foreseeable, first of all, that the problem that did arise would arise and, secondly, that the plaintiff would be a person of the class of persons who would be vulnerable to this risk.

McHUGH J: That is back to foreseeability; power and foreseeability.

HAYNE J: Why would it matter if the erosion was simple water erosion from run-off? Would you still contend duty in that case?

MR MORRISON: If the run-off was a consequence of Council's action rather than inaction, yes.

CALLINAN J: Mr Morrison, your submissions are all based upon the assumption that the Council was negligent, is that right?

MR MORRISON: Yes.

CALLINAN J: That there was no contributory negligence or no negligence at all on the part of the plaintiff, your client?

MR MORRISON: Yes.

CALLINAN J: So far as I am concerned, in due course you will have to address that.

MR MORRISON: Yes.

KIRBY J: All she did was stand aside, did she not?

MR MORRISON: All she did was step out of the way of two persons walking in the opposite direction to avoid a collision.

CALLINAN J: And the negligence is supposed to consist in there being two levels, two inches.?

MR MORRISON: In allowing to develop a drop beside the pedestrian footpath which created a hazardous situation, "hazardous" being the term used by his Honour.

CALLINAN J: Why was it hazardous?

MR MORRISON: It was hazardous because someone who has to step off the footpath is likely to fall, and persons of the plaintiff's age and vulnerability are to be expected to be using that area.

GLEESON CJ: The world is full of hazards of that kind.

MR MORRISON: Indeed, but councils do not need to add to them, your Honour.

CALLINAN J: The whole world is supposed to be a level playing field?

MR MORRISON: Well, this certainly was not level, your Honour, and was not level for this lady.

GUMMOW J: What shoes was she wearing? Is there evidence of that?

MR MORRISON: There was no evidence about that and there was no criticism of her footwear or any issue about that contributing, your Honour.

KIRBY J: She was not wearing high stiletto heels?

MR MORRISON: At 63 years of age, your Honour, and engaged in cleaning duties in a business nearby, it seems very unlikely she was wearing stiletto heels.

GLEESON CJ: We can assume she was wearing sensible shoes.

MR MORRISON: That would seem to be the obvious response, your Honour.

CALLINAN J: Sixty-three is not all that old.

HAYNE J: At least not for wearing high heels apparently.

MR MORRISON: Yes. Your Honours would have noted that she was doing two jobs at the time, so that she was certainly a very active person. Can I take your Honours to a passage in Pyrenees Shire Council v Day [1998] HCA 3; 192 CLR 330. Whilst in that case a number of different tests were laid down as to the creation of a duty of care, we would say that we would fall within all of them, but Justice Gummow's words at page 391 are of some assistance. At paragraph 176 his Honour said:

The distinction in this area between misfeasance and non-feasance was accepted in Heyman and is not challenged in these appeals. Nevertheless, and as will appear, the existence of the distinction is not fatal to the case against the Shire.

The general rule is that "when 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". A public authority which enters upon the exercise of statutory powers with respect to a particular subject matter may place itself in a relationship to others which imports a common law duty to take care which is to be discharged by the continuation or additional exercise of those powers. An absence of further exercise of the interconnected statutory powers may be difficult to separate from the exercise which has already occurred and that exercise may then be said to have been performed negligently. These present cases are of that kind. They illustrate the broader proposition that, whatever its further scope, Lord Atkin's formulation in Donoghue v Stevenson includes "an omission in the course of positive conduct ... which results in the overall course of conduct being the cause of injury or damage".

McHUGH J: That passage does not help you because there is nothing negligent about the construction of the mall. What you are seeking to make the Council liable for is its failure to correct the depression which has arisen by the constant use of traffic.

MR MORRISON: That is the problem which arises in so many of these case, and, for example, Grafton City Council, "removal of all of a line of trees except one". The Full Court of the Supreme Court of New South Wales said, "While a line of trees was there they presented no danger because they were obvious. Once you removed all but that tree, although you had not touched that tree, you created a danger". Now, in the present case the danger was created by increasing the volume of traffic by paving to a 2.5 metre width and channelling it on to the old 1.2 metre width suburban footpath.

McHUGH J: So, if a council builds a first-class highway or road which is likely to attract a great deal of traffic you are under an affirmative duty to take care in circumstances where they would not be if they had some narrow strip that nobody was likely to use? It does not sound very logical to me.

MR MORRISON: If that highway, without warning, suddenly stops and turns into a goat track, yes, they would be in breach of that duty but if they put up warning signs saying that this is the end of the new piece of road then they may well have discharged their duty of care in those circumstances.

McHUGH J: Your proposition comes to this that whenever a council or a highway authority lays down a road or exercises its powers it is then under an affirmative duty to ensure it does not become a source of danger, because it was not a source of danger when it was made. That is your problem, it seems to me.

MR MORRISON: But that begs the question as to what the Council activity is that gave rise to the danger. It was not the building of the footpath. It was the other activities of the Council which affected the way in which that footpath would be used and the risks associated with it - - -

HAYNE J: That is to say, is your case one of negligence in the exercise of other statutory powers?

MR MORRISON: No, your Honour, in this way: the problem was not that the planning process was flawed because at the time the planning process was complete, at the time these developments were completed the risk had not then arisen. The evidence is that it was grassed. The risk developed after that. So, it is not the planning process that caused the problem, it is the foreseeable consequence of it which gives rise to the risk.

HAYNE J: Do you say that a power of the Council was exercised carelessly?

MR MORRISON: Yes, your Honour.

HAYNE J: What power was exercised carelessly?

MR MORRISON: The power to maintain areas such as this.

GAUDRON J: No, but that power was not exercised.

MR MORRISON: Well, I am sorry. I beg your Honour's pardon, that is so. But they had a power to maintain. They did not exercise that power. It is in the context of having caused or contributed to the risk that we say a duty arose to deal with the risk which they had in large measure created.

KIRBY J: So it takes three steps. It is the fact that they have the statutory power; the fact that pursuant to that power they create a footpath which, of itself, is perfectly safe at the time created; and the fact that, subsequently, by reason of other decisions of the Council, to their knowledge, the footpath and the surrounds would be heavily used and create the trap which you say then existed which imposed on them the duty of reasonable care to prevent injury to people like your client.

MR MORRISON: Yes, your Honour.

HAYNE J: Is your case a case of knowledge of trap? I have not understood that to be your case.

MR MORRISON: Knowledge of trap in the sense that there was evidence of Council officers having seen and recognised it, no, but in the sense that it was never challenged that it was an obvious trap and that must be so because Council had paved within metres of where the accident occurred. They either knew or should have known - - -

KIRBY J: That is a factual distinction from Day, is it not, and Pyrenees, because there, there was affirmative bringing of the danger to the attention of the local authority.

MR MORRISON: Indeed. Although, in one sense, the fact that they chose to pave a little further up means that they are significantly on notice that there is going to be an increase in foot traffic otherwise why would they at way end of this area have undertaken full width paving?

McHUGH J: But what has the increase in foot traffic to do with it? It just seems to me to be a forensic device which is of not legal relevance. It is the same thing as saying there is going to be a lot of traffic on a road, or a lot of traffic on a street or a mall. Obviously, if you have any sort of thoroughfare and people use it, sooner or later it is going to wear out. Now, you argument it was accepted, it seems to me, tantamount to imposing an affirmative duty in every case where highway authority constructs a road.

MR MORRISON: Well, may I answer that in this way, your Honour, with an example? Supposing a Council diverts, for whatever reason, a major traffic artery on to a minor suburban road, and let us suppose that that road surface is incapable of bearing the level of traffic and as a consequence it rapidly becomes dangerous, there is an accident and someone is injured. The authorities would say that because that was not just a decision within the road maintenance function but was also a traffic function, that the immunity in respect of nonfeasance does not exist and that a positive duty to take action such as in Buckle in respect of drains, such as in England in Skilton in respect of a stud in the road, such as in Turner in respect of a failure to put up a warning sign. That then gives rise to a positive duty to take action and the Council cannot simply say, "This is a case of nonfeasance, we did not have a duty to do anything".

That, your Honour, is, it seems to us, the answer because the courts have consistently said that it is only in respect of the road qua road that there is no duty to take a positive action.

McHUGH J: It depends what they are doing and it may be in some of those cases insufficient consideration has been given to this context of statutory powers. I mean, until quite recently in the field of negligence defendants were liable if there was a foreseeable risk of injury. People did not examine the statutory schemes. The more recent cases have paid great attention to this question. Ever since Sutherland Shire Council v Heyman you have to have more than foreseeability of risk. Once Anns was overruled in this country back in 1984, the game changed.

MR MORRISON: Your Honour, if we are to say that no duty of care arises merely because Council has let something fall into disrepair, then that would be directly contrary to what this Court did in Buckle in finding that a positive duty to maintain a drain under the road arose. The circumstances in that case, the words of the statute are relevantly identical, it was permissive, "may", it would be directly contrary to the approach that this Court took in Buckle.

McHUGH J: It may be, but a lot of things have changed between 1936 and 1950 and the present time.

MR MORRISON: Indeed, your Honour, but one of the things that has not changed is the difficulties created by the application of this doctrine and one of the reasons that we are here is because the doctrine is so difficult of application and - - -

GAUDRON J: It may be that the doctrine is simply a gloss on a more fundamental principle and that the principle that is there to be exposed is, absent something creating a particular relationship, there is no duty to exercise statutory powers, whatever they be, and that the notion that you distinguish between the roadway proper and other things is an encrustation which has come about by reason of failure to understand that there is something more required if there is to be a duty to exercise powers.

MR MORRISON: If that were so, your Honour, there would be a very long line of authority to be overturned - - -

GAUDRON J: Perhaps.

MR MORRISON: - - - and a line of authority which has been consistently followed in this country, as it was in England until the doctrine was removed in 1961.

McHUGH J: You will need a better argument than that after Burnie Port. In Rylands v Fletcher it had been applied in this Court on numerous occasions and it went in Burnie Port, so - - -

KIRBY J: Early in times.

MR MORRISON: Indeed, and indeed it is that which brings us here to challenge the very existence of the doctrine.

GAUDRON J: Yes, but it may well be a two-edged sword.

MR MORRISON: It may, your Honour, it may, because one of the principal arguments against the doctrine is that it is erratic and inconsistent in the way in which it has been applied and can be applied by its nature.

KIRBY J: It is not immediately apparent why donees of statutory power should be able to go about their duties in performing their functions entrusted to them by Parliaments with indifference to the safety of the people who are affected by them.

MR MORRISON: Indeed, and your Honour has said so in previous judgments and Yates v Boland, I think I quoted from yesterday, was a passage in which your Honour said so in terms. It is not obvious why councils should not be treated like others, or road authorities treated like others.

McHUGH J: What Justice Kirby put to you is one view; the other view is that courts do not govern Australia and that Parliament has allotted various tasks to councils, other authorities, given them powers, given them money or the capacity to raise money and to spend it in accordance with their priorities rather than courts second-guessing.

MR MORRISON: Can I deal with that question, which is a policy issue, your Honour, and deal with it in two ways: first of all, one matter which arose from the Chief Justice late yesterday was a comment in relation to how the doctrine originated, and I need to respond in relation to that, but, secondly, there is a clear response in relation to the issues of policy which arise and as to whether or not it is appropriate for this Court to intervene. In relation to the origin of the doctrine, it is probably best seen through Buckle and Gorringe, because the Chief Justice in Buckle [1936] HCA 65; (1936) 57 CLR 259 said at page 268:

This rule finds its justification in Great Britain in the history of the common law liability of inhabitants of parishes or counties to repair roads, a liability which was transferred to local authorities by statutes. The liability was enforceable not by an action for damages, but by indictment against the parish or county or against some individuals thereof and in the name of the rest. Later, when surveyors of highways were appointed in England, there was a remedy against them for penalties. The inhabitants, the county and the parish were not corporations and could not be sued. When their liability was transferred to municipal corporations it was held that the liability of the corporation was the same as that of their predecessors - it was only a transferred liability, not a liability newly created by the statute (Municipal Council of Sydney v Bourke).

There is no such history in Australia. The liabilities of municipal corporations with respect to roads in Australia were not transferred to them but were created by statute. Before statutes were passed "no duty or liability rested on anyone" -

and his Honour then goes on to say:

Thus the duties of an authority are to be ascertained from the terms of the statute under which it exists.

That raises a very interesting question.

GAUDRON J: That is right, and what is clear from what is there said is that we are talking about a rule. How the rule grew up may be of interest historically, but what one has to search for is either the principle that sustains the rule or a principle which dictates a new rule.

McHUGH J: Exactly. English law and institutions are full of illustrations of ancient doctrines and institutions whose rationale had disappeared but who, in fact, have reinvented themselves or are justified on other grounds. You only have to think of things like the relationship between the Crown and Parliament. The evolution of the jury as a fact finder. The rule against hearsay evidence. There are numerous illustrations that one can think of. So, you have to concentrate on the future, not on the historical beginnings of this rule.

MR MORRISON: But was not what his Honour was doing was to look around for a better justification. The justification, his Honour is saying, cannot lie in history. He says it must lie in statutory construction. Indeed, that is the respondent's argument in our case. We say that argument, the argument that the justification lies in statutory construction falls, to the ground. It falls for this reason: as Justice McTiernan said in Buckle at page 297:

The respondent's powers to make and maintain roads, drains and other works and services within its district are defined in common by sec. 162(1) in language which is permissive and not imperative.

McHUGH J: Yes, I accept that, but you see you do not get any duty; there is not duty imposed by this statute. You have to look to the common law to erect the duty given the statutory setting. If there was a statutory duty to repair, you would be home and hosed, you would have an action on the case for breach of the statute. But you are relying on the erection of a common law duty of care.

MR MORRISON: Your Honour, if we go back to that extent, there was, as your Honour pointed out yesterday, at the time when we are talking about the introduction of law into New South Wales in 1823 and 1828 and the questions of applicability, no separate tort of negligence to sue on. So that there are difficulties about that approach as well. But what the Chief Justice - - -

HAYNE J: But the point is much more fundamental. The point of debate for the moment is, Parliament has not imposed a duty to exercise the power, why should the common law? History may explain how that has come about but why should the common law intervene when Parliament has not said, "You have power which you shall exercise".

MR MORRISON: The answer is that the common law does impose a duty in every circumstance on the authorities, save that of the highway authorities.

HAYNE J: It is universal duty to act. That is a startlingly wide proposition.

MR MORRISON: Well, a duty to act reasonably can - - -

GLEESON CJ: In Sutherland Shire Council v Heyman 157 CLR 502 Justice Deane said

the distinction between a failure to act and positive action remains a fundamental one.

MR MORRISON: That was the passage that his Honour Justice Gummow was referring to in the passage I quoted.

GLEESON CJ: Now, that is the significance of the fact that the statute gives a power not a duty, and it is the theoretical basis, is it not, of the distinction between misfeasance and nonfeasance of which this rule may be simply one of a number of illustrations of which others might be that there is no duty to rescue, no duty to safeguard or warn another from danger of reasonably foreseeable loss or injury.

KIRBY J: I may be wrong but I dimly recall that when one particularised cases in negligence half of them were alleged commissions and some of them were omissions. Negligence can occur in omission. It is not a universal rule.

GLEESON CJ: Omission to do something you are bound to do.

McHUGH J: You could have omissions in the course of a positive activity. You are driving a car and you fail to keep a proper lookout; it is an omission but it is in the course of a positive activity. But you are in a different area of discourse here.

MR MORRISON: But does it not come back to whether or not the appropriate duty of care is created in the first place as to whether or not the failure to take reasonable care will give rise to an action.

GAUDRON J: Yes, but there is still a failure to take reasonable care when you are embarked upon an activity, as Justice McHugh pointed out, is one thing. Failure to exercise a power when you are sitting back doing nothing is quite a different thing. You have got to find something that requires you to take positive steps, as in the relationship between employer or employee or occupier of land or reliance or assumption of responsibility or a special relationship created by control and vulnerability.

McHUGH J: The good Samaritan was not acting pursuant to any duty of care and the Levite was not in breach of any common law duty of care when he passed by on the other side. He had no obligation to do anything, to go to the assistance - - -

KIRBY J: I thought Lord Atkin's neighbour principle introduced a slightly larger principle into our common law.

MR MORRISON: Your Honours have outlined the debate, but that really is the issue that lies here as to what gives rise to a duty of care.

CALLINAN J: There may be some views in between.

MR MORRISON: Indeed.

KIRBY J: I return to something I said to you yesterday, that I thought this case was being propounded before the Court because, instead of applying ordinary general orthodox negligence doctrine, whatever that may be, in Australia, the courts were stumbling at a roadblock. They would not go past this peculiar immunity which road authorities, local councils, were thought to have derived through the common law of England and which has been accepted as having a continuing role in our common law, and that you want to get rid of the roadblock. You are happy to take your chances with ordinary negligence doctrine, and the question, as I understood it, the special leave point, was: do we get rid of the roadblock?

MR MORRISON: Indeed, and might I - - -

HAYNE J: The order you would seek if you got leave and the appeal were allowed, would that involve retrial of any issue of fact?

MR MORRISON: No, your Honour.

HAYNE J: Thus, your duty case is to be judged wholly on the record as it now stands?

MR MORRISON: Yes.

KIRBY J: That gets back to the question I began today with, that if one were looking at a measure of the duty, the scope and ambit of the duty, one would normally, I think, require some material on the cost implications for councils of having a footpath inspection officer and persons with wheelbarrows of gravel, as you put it, and maybe other implications for other roads and lanes in the municipality. That did not exist in this case because it seems you accepted the roadblock and just presented the case within the current doctrine.

MR MORRISON: We certainly formerly challenged it but we accepted and told his Honour that he was bound by the law as it stood.

KIRBY J: But does that not follow that there would have to be a retrial? If the impediment is removed, as impediments have been in the past - I mean, there was once an impediment, that it was not thought that public authorities were liable in tort of negligence, and Mersey Docks v Gibbs got rid of that impediments. So impediments which are encrustations in the common law are knocked over from time to time. But I share Justice Hayne's question that in this case, given how the matter progressed, whether it is possible for it to be tried by the Court of Appeal or whether it would not have to go back for retrial because the evidence just is not there to fill the content of the duty. If that is so, then the question is: is this a suitable vehicle?

MR MORRISON: Your Honours, the question would have to be whether the Council having run its case in a particular way, bearing in mind - - -

HAYNE J: No, the plaintiff having run her case in a particular way. The plaintiff had her opportunity to put on whatever case she wanted to make out for duty. Why should she have a second go at it on retrial?

MR MORRISON: Your Honours, the knowledge as to what is within Council resources is peculiarly within the Council records, peculiarly within the expertise of the Council. Ordinarily - - -

HAYNE J: Subpoenas are not available in the District Court, is that what you are telling me, Mr Morrison? Come, come.

MR MORRISON: No, your Honour, we are not saying that, but ordinarily in these cases, if a council wishes to say that the expense would be excessive or that it would be unreasonable, it is the council that adduces that evidence. On a Jones v Dunkel basis the inference to be drawn in this case is that Council did not see any reason why it could not have remedied the defect.

GLEESON CJ: You may or may not be right about that, but there is one thing we need to get clear: do you ask, even in the alternative, for a new trial?

MR MORRISON: We would certainly accept a new trial in the alternative, if your Honours saw fit, but it is not - - -

GLEESON CJ: We are not likely to force anything on you.

MR MORRISON: No.

GLEESON CJ: The question is: do you ask for a new trial?

MR MORRISON: We would ask for a new trial in the alternative, but our primary proposition would be that it would not be necessary, given the way the parties conducted the litigation at first instance and given that no suggestion was ever made in relation to cost, policy or that this problem could not have been remedied without unreasonable expense or unreasonable disruption of Council's activities.

KIRBY J: Let me understand this. Your proposition then is that at trial you bore the general onus.

MR MORRISON: Yes.

KIRBY J: If the law is, and always was, that there is no impediment, then the fact that you proved that you fell and the fact that the Council with its resources and knowledge does not prove the cost implications of taking reasonable care to prevent your falling is, on a Jones v Dunkel-type principle, their lookout. They did not prove it and the inferences are available for the Court of Appeal to reach its own conclusion. Is that what you say?

MR MORRISON: That is so, your Honour. That is exactly how we do put it and, indeed, put it to the trial judge at first instance, that there was a clear inference from the failure of Council to put that matter in issue. Had they done so, then the plaintiff might well have taken a different course in relation to the evidence. If, for example, they had said it was unreasonable expense or it would have been an unreasonable imposition on Council activities, then we would have seen an obligation to adduce positive evidence to meet that.

That was not an issue the defence ever raised at any time in the trial and, that being the case, we say it is not an issue which we would have thought needed to be relitigated. If we are wrong in that regard, then we would certainly accept being sent back to relitigate it, but our primary submission is that is not necessary on the trial judge's findings.

KIRBY J: Can I ask one other question? You were answering Justice McHugh's question concerning the role of the court in this matter and you said you had a couple of points to make and it may be that you are coming to answer it more fully, but there is an issue if the common law, from whatever historical reason, has been taken to accept the nonfeasance doctrine in this particular area where, especially against the background of the very law reform reports that you have mentioned and against the floodgates of costs that the interveners are going to press upon us, that even if one thought that the common law had taken a mistaken line, that you would reach a point where the Court had no legitimacy to disturb the common law doctrine which, however erroneous, has been held for so long and the change of which would have very great cost implications. I think you have to deal with that because that is a matter that would concern me.

MR MORRISON: Thank you, your Honour. I had undertaken to do that and if I may, I will finish the submission I was advancing and then turn to that next. The proposition I was drawing from Mr Justice McTiernan's comments in Buckle are this. His Honour said:

The respondent's powers to make and maintain roads, drains and other works and services within its district are defined in common by sec. 162(1) in language which is permissive and not imperative.

We provided section 162 of the relevant Western Australian 1933 legislation. For all practical purposes, it, like the legislation in force in our case, used the word "may". In other words, the defendant board was authorised to maintain roads. It was authorised to maintain drains. In neither case was it compelled to do so but the Court, in Buckle, said that, as a matter of statutory construction, it would compel the maintenance of drains though it did not compel the maintenance of roads because of the historic doctrine, notwithstanding, that that doctrine had no relevance to the way in which municipal corporations and road authorities developed in Australia.

Now, we would respectfully submit that it cannot be a matter of statutory construction. When the same provision is interpreted in respect of drains to give rise to a duty to take positive action, but in respect of roads, it is not, it is only explicable in terms of an historical anomaly and the reality is that the High Court in Buckle was deferring to that line of English authority which arose from midway through last century and concluded in Cowley in the House of Lords in 1892, and from that point the law in England was fixed and remained fixed until the British Parliament saw fit to change the law with effect 1961.

The fact of the matter is that, as Justice Fullagar said in Gorringe, "it is very curious", to use his words, that we apply that doctrine here but he felt bound to do so. Now, he was speaking at a time when House of Lords decisions were, for all practical purposes, regarded as binding by this Court.

KIRBY J: More importantly, there was the Privy Council appeal.

MR MORRISON: Indeed, and he was speaking at a time and of a time when the Privy Council and the House of Lords largely overlapped in membership. Now, really, if there is no logical basis for the distinction drawn in construing statutes between a positive duty in respect of drains and a positive duty in respect of roads, then it can only be the historical argument which really founds this doctrine, and we say that is fundamentally flawed and it is time that it was dealt with and there are various alternative ways of dealing with it.

My learned friend, Mr Jackson, I think will be saying more about the Law Reform Commission Reports, but I might say something very briefly about some elements of the issue.

McHUGH J: But do not the drain cases turn on a fiction that by putting a drain in and not repairing it, the authority has committed a misfeasance just as if they had dug a hole in the road and created a trap? Is that not the basis of it? Was that not what they said in the Bathurst case or Pickthall, or one of those cases back in the 1890s?

MR MORRISON: That was certainly said in Borough of Bathurst. Although, Borough of Bathurst, on its dicta, could well have led to a totally different outcome in the law because in Borough of Bathurst they were not inclined to adopt what was then only a developing line of authority for the nonfeasance immunity. So that if that line had been followed, then we might well not have the problem which we have today. But, subsequent decisions took a different turn.

We have to bear in mind that nonfeasance as a term did not come into existence, on Justice Fullagar's historical research, until about 1860.

McHUGH J: What is the present state of that artificial structure rule? Justice Dixon never accepted it, did he?

MR MORRISON: No. He, of course, it has to be borne in mind, was dissenting in Buckle.

McHUGH J: But in Gorringe he seemed to ignore it, did he not?

MR MORRISON: Yes. The reality is, though, that it was not that rule, the artificial structure rule, and it was not the making of the drain which gave rise to the duty in Buckle. It was the fact that the doctrine of immunity only applied to the road proper and the drain did not form part of it. That was the grounding of it. Whilst on various occasions since, such as Hill v Commissioner for Roads, there has been a series of useful devices for getting around the problem of nonfeasance. Hill, you remember was the case where some work had been carried out but not work which led to the accumulation of gravel and the accident. It was said that once you had carried out some work, then it is no longer a case of pure nonfeasance, even though you did not carry out work at the particular point where the accident arose. There is some difficulty in reconciling that with Gorringe because, as Justice Fullagar pointed out there, there had been some work carried out on that bridge, though not work which led to the particular accident.

If the Court had chosen in that case, it could have adopted the device used in other cases and said what was created was a trap; it gave the appearance of a perfectly good bridge because it had superficially been repaired. Both, on the authorities, were perfectly viable alternatives, both equally logical. It merely illustrates the fact that in the application of this doctrine there are enormous difficulties created and resultant injustices for those litigating before the courts.

On that same basis as in Gorringe, you could have obtained a different result in Grafton City Council. You could have argued that Council's failure to remove that last tree was pure nonfeasance; it was not creating a trap. The cases simply cannot be reconciled in any credible or rational fashion. It would seem quite clear that the courts largely achieve what they wish to achieve in this area, bearing in mind that there are viable, logical arguments on this doctrine one way or the other.

Could I take your Honours to a couple of matters in relation to the policy issues: first of all, we would say that the floodgates argument has been substantially overused.

KIRBY J: What is that decision of Justice Deane's which says that when the land below is parched it is not a bad thing to open the floodgates? I would like to know what that - - -

MR MORRISON: I do not know, your Honour.

KIRBY J: Well, it is in the Commonwealth Law Reports.

GAUDRON J: Before you come to the floodgates, could I take you back to Buckle. I am sorry to do this to you, Mr Morrison, but when one looks at that, at page 75 in the judgment of Chief Justice Latham, what you find really is that there was a dangerous thing, being the drain, which would not be, because it was underground, apparent, the danger would not be apparent to anyone, so it is a concealed or hidden danger, of which the road board had knowledge, because the Main Road Board had drawn it to the attention of the engineer of the defendant, who had said he would look into the matter. So what you have got in that case is a range of factors which might well create a relationship that would bring about a duty to do something.

MR MORRISON: Well, another way of looking at that is to say, there was a duty, but the response to the duty might differ according to the state of knowledge of the Council and what was reasonable in the circumstances. The two are really related; the question of duty and the reasonableness of the response. It is very hard to differentiate between the two.

GAUDRON J: Well, I know that, but if one is looking for a relationship, and you have got something underground which nobody else can deal with, in a sense you have got control over it in a way. I mean, you have got the knowledge which nobody else can get when you are underground, to bring into existence a relationship of the kind that, on ordinary analysis, as it is now developed, might bring in train a duty to act. So that what one is looking at in Buckle perhaps, on principle as we now understand it, is not the limits of the rule as to nonfeasance, if you like, but something that is explicable on the basis of a relationship which brings forth a duty to take positive steps.

MR MORRISON: But the only additional factor in Buckle is actual knowledge as distinct from - - -

GAUDRON J: Well, actual knowledge and of a hazard which would not be discernible or ascertainable by a road user or, in this case, a pedestrian.

MR MORRISON: We would say that the hazard in this case, in Ghantous, is a hazard which although discernible in the sense that you could physically look at it and see that it was there, would not come to your attention until the moment occurred when you suddenly needed to step off the footpath. You would never be expecting to have to leave the paved surface, in the ordinary way you do not go looking for those sorts of problems. Now, in respect of knowledge we say that the Council in Ghantous cannot avoid the inference that over the period of five years that it is extraordinarily unlikely that they could have been wholly unaware of this and if they were wholly unaware of it they certainly should have been. It was not something that happened in the space of a few weeks. It happened between 1985 and 1990 when the accident occurred, and, manifestly, from the mere appearance of it, it had been in an unsatisfactory and hazardous state for a considerable period.

Now, all of those matters fix Council with knowledge and, as far as the pedestrian is concerned, it is one thing to be able to see the risk, it is another thing to perceive the danger which is not a danger which ordinarily occur to the average person using a footpath. So, we say that there is no difference except to a very minor way in degree.

Can I come back to the policy issues, your Honour. These are not new arguments. The most interesting way of looking at it, perhaps, is through the Borough of Bathurst v MacPherson where this issue was raised.

HAYNE J: The decision described by Justice Dixon as "few decisions have proved the source of so much error as Borough of Bathurst".

MR MORRISON: Well, in this particular case nothing turns upon whether or not the decision was correct. What the board was there dealing with was the Chief Justice of New South Wales' views on the risks to councils, but might I add that Justice Dixon, in expressing those views, was in a minority, in any event.

GLEESON CJ: The Chief Justice of New South Wales had been the former Premier of New South Wales.

MR MORRISON: Indeed. And, interestingly enough, sat on the appeal from his own decision and - - -

GLEESON CJ: He would be well acquainted with the case.

MR MORRISON: He was indeed and, unsurprisingly, was minded to dismiss the appeal but the majority in the court took a different view.

GLEESON CJ: He was also a notable litigant.

MR MORRISON: The board at page 264 said this:

The learned Chief Justice has stated his reasons very fully in support of his opinion that there were no grounds for making the rule absolute. After referring to his ruling at the trial, he adverted to the importance of the question raised. He said: "No doubt this case raises a point of extreme importance, not only to this borough but to all the boroughs now or hereafter incorporated under the same Act, viz., whether, whatever may be the sate of the municipal funds, whatever the size of the municipalities (and some of these municipalities are very extensive), whatever may be the state of the streets when they are handed over, however much it may cost to put them in order, they are not liable at their peril to put them in a thorough state of repair, and to be sued by every person who may meet with any accident, however slight, through their neglect to repair.

"A municipality may have, as in this case, streets extending over seventy miles, and the rates may not return over [sterling]1000 a year (the amount of rates that can be imposed being limited), and yet, if the Plaintiff is right in his contention, it is bound with these limited means to put the whole of the streets in repair.

Might I add that I did not understand from that case that that was what the plaintiff was contending, just as we here do not contend anything other than a reasonable response from the Council. His Honour went on to say:

"I can see, if this action is decided against the Defendants, that it will require speedy legislation to prevent such bodies from being financially ruined by actions like the present."

The board's response to that appears at page 268, about halfway down the page:

The principal objection taken by the learned Chief Justice in New South Wales, and by the learned counsel for the Appellants here, to the maintenance of the action was founded upon the nature of the supposed obligation, viz, a liability to repair public roads, and upon the authority of the case of Russell v The Men of Devon, and of some other in pari materia. In those cases the principal objection to the maintenance of the action was that the inhabitants of the county or parish, as the case might be, were not a corporation capable of being sued as such.

I interpolate at this point that Justice Fullagar in Gorringe states the ratio of Russell v The Men of Devon in just those terms. That is that it was based upon nothing more than the fact that there was no corporate fund from which damages might be met. The board went on:

There are no doubt dicta to the effect of the inconvenience that might result from the multiplicity of actions and increase of litigation, if it were held that every individual aggrieved by the non-repair of a public road might sue either the county or parish or individual members of it; but such inconvenience was never admitted as a reason why an action should not be maintainable.

Your Honours, the fact of the matter is the plaintiff did succeed in that case.

GAUDRON J: At page 269 they say there is no substantial difference between that case and Hartnall v Ryde Commissioners where the statute expressly imposed the obligation of repairing the roads. We are in a different territory, are we not? I mean, I know you are dealing with the floodgates argument, but some of these cases reveal other aspects that - - -

MR MORRISON: Your Honour, there is a sentence below that which has to be read:

In their Lordships' opinion no substantial distinction can be taken between that case and the present, in which the duty for the reasons above stated has been found to exist, though not expressly imposed by statute.

GAUDRON J: What were the "reasons above stated"?

MR MORRISON: What the board did was to say that there was in effect no logical reason for distinguishing between misfeasance and nonfeasance based upon statutes which were permissive and not imperative. That was a view which the House of Lords ultimately disagreed with.

GAUDRON J: Did it pay any attention to the statute?

MR MORRISON: It was accepted that the statute was permissive in this case, your Honour, as distinct from the Hartnall decision.

HAYNE J: And this decision pre-dates Heaven v Pender, does it not?

MR MORRISON: It does.

HAYNE J: So it is before that stage in the development of the law of negligence.

MR MORRISON: Indeed, indeed. One of the difficulties in relation to the adoption of this element of the law into New South Wales is that the law is, in a sense, fixed under the statutes of 1823 and 1828 to be the law which is relevant and applicable to New South Wales circumstances at the time. We have cited the relevant statutes and provided copies of them, but the fact of the matter is that as at those dates the law had not even developed to a stage in England where one could say there was a nonfeasance rule.

GLEESON CJ: At page 267 the liability is said to be "a nuisance", is it not, in the first complete paragraph?

MR MORRISON: Indeed. Your Honour is talking towards the bottom of the page?

GLEESON CJ: The first complete paragraph on 267.

MR MORRISON: Yes. Well, of course, at that stage in the development of the law of torts the distinction between actions in negligence and in nuisance was a good deal less clear than it is now, and perhaps that is all that can be said about that. But the point that we draw from that is that the floodgates argument has been around for a very long time - - -

KIRBY J: But is that your problem: it has been around a very long time?

MR MORRISON: Indeed, but - - -

GLEESON CJ: How would we be able to evaluate a floodgates argument? What do we know? What is the evidence before us? Or do we have some kind of knowledge that entitles us to say, "The floodgates argument is exaggerated," or, "The floodgates argument is spot on," or, "The floodgates argument understates the level of the problem"? How do we know?

MR MORRISON: There are four Law Reform Commission Reports which have been provided to the Court - - -

GLEESON CJ: One of the things that we noticed from the Law Reform Commission Reports is to say that the Law Reform Commission proposed abolition of the distinction between misfeasance and nonfeasance is a distinct half truth. What they proposed was the abolition of that distinction and the abolition of a right to sue for common law damages and they proposed in relation to property damage to wait for another five years and see what they thought they ought to recommend.

MR MORRISON: It varied according to which reports we are talking about. In respect of New South Wales, it would have thrown litigants in personal injury back on the common law, but - - -

GLEESON CJ: Back on the common law except for their entitlement to damages.

MR MORRISON: Yes, yes.

GLEESON CJ: Well, this is bound up with the floodgates argument, is it not?

MR MORRISON: Indeed. The evidence which was adduced - because there was evidence from the Main Road Board, the Department of Main Roads - there were considerable submissions put up - did not seem to suggest that the area of litigation covered by the nonfeasance doctrine, which, after all, is only a very small aspect of Council activities, important though roads are, bearing in mind that historically many accidents which occur on roads are not subject to the defence. It is an arbitrary matter which are and which are not because the boundaries of the immunity have been drawn very narrowly indeed. That being the case, the general view was taken that whilst there would be some cost imposed, it would not be very high. May I leave that to others to deal with because there will be submissions about that.

KIRBY J: I suppose that every time a step is taken, take, for example, Braistina v Bankstown Foundry, to impose positive duties of acts and prevention on employers. But that has significant economic costs yet the court took that step - - -

MR MORRISON: Indeed, on that argument, we would not have had Donoghue v Stevenson. It is the argument which is trotted out every time.

KIRBY J: Maybe Mr McAlary will say that was a very bad decision.

MR MORRISON: I have no doubt. Your Honours, can we also say - - -

McHUGH J: What distinguishes cases like Braistina and other cases from this case, is that, ordinarily, you have the capacity not to enter into a contract or to change the terms of the contract, or if you control land, not to let people come on your land, but in the case of a public highway authority, it is a public road and anybody may use it. It is only the Minister for Lands, is it, who can prevent the use of roads? Does the Council have an express power to close a road permanently?

MR MORRISON: Councils are given a power to close roads. I cannot answer whether permanently or not, but the various statutes empower councils to close and open roads, that is certainly so.

McHUGH J: We would be in a sorry state if Hawkesbury Council said, "Well, if the courts are going to hold us liable we are going to increase the amount of rates we have to impose on the occupiers of property in this municipality, we are going to close all these roads".

MR MORRISON: But that is rather like arguing that it is unjust that there be a duty of care in product liability on manufacturers because it increases the costs of goods and makes the conduct of business more expensive.

GLEESON CJ: But how do we know? How are we in a position to evaluate a floodgates argument? Either to accept it or reject it. What is the information upon which we act?

MR MORRISON: First of all, it has been analysed in the Law Reform Commission Reports. Secondly, when the defence was abolished in England - - -

KIRBY J: By statute.

MR MORRISON: By statute in 1961, the floodgates did not open and no catastrophe ensued and your Honours would have seen from the submissions, setting out the terms of that abolition, that the criteria for recovery were, in large measure, the same criteria as would apply at common law save that, in some respects, the onus, in respect of costs and policy, was thrown, in unmistakable terms, upon the defendant.

McHUGH J: But England is not New South Wales. New South Wales would be one of the most litigious areas in the world. Leave aside California and possibly the State of New York, New South Wales probably leads in litigation per head of population. I am not sure that we can rely on the UK experience in terms of floodgates.

MR MORRISON: Well, except that even in a more confined area one would have expected some quite significant changes which were measurable and discernible and which could have been the subject of evidence. Nothing seems to have come to the fore. The fact of the matter is that if one is talking about the rights of the individual by comparison with the relative cost to the defendant, it would seem, on the Law Reform Commission Reports, that the cost would be an acceptable one in terms of rates. Now, those reports may or may not be correct but those reports were prepared after submissions from the various road and municipal authorities.

GLEESON CJ: But were those costs calculated on the assumption that people would not retain their right to common law damages?

MR MORRISON: I cannot answer that, but my learned friend, Mr Jackson, may deal with that.

GLEESON CJ: If the answer to that question were in the affirmative, that is a piece of information that does not assist us, is it not, one way or the other? I am not saying it is against you, I am just saying that we are not in a position to evaluate a floodgates argument.

MR MORRISON: At the end of the day, though, your Honour, it also has to be borne in mind that what occurs in this area of law is an extraordinary amount of litigation based upon very fine distinctions. On the misfeasance, nonfeasance distinction, upon whether or not it is part of the road and therefore covered by the immunity or not part of it, whether or not it is in the function of the Road Authority as a highway authority or as a traffic authority - - -

GLEESON CJ: I wonder, Mr Morrison - what you say is righ, but I wonder whether that just is not an aspect of the difficulty of distinguishing between acts and omissions, whether for moral purposes or for social purposes or for legal purposes. So long as the distinction between acts and omissions remains, as Justice Deane said in Sutherland Shire Council, a fundamental distinction., in all aspects of life we are stuck with the problem that the distinction is not clear-cut.

MR MORRISON: Indeed, but one of the things which is manifest is that in this area of law it has been productive of an extraordinary amount of litigation.

KIRBY J: Are there other analogies for the immunity that you can think of, that survived against the tide of Donoghue v Stevenson?

McHUGH J: Where the barristers' immunity - - -

MR MORRISON: The immunity of those of us at the Bar table at the moment survives in this country-

GLEESON CJ: What about the immunity of those up here?

GAUDRON J: But, also, where does the term "immunity" come from in this area of the law? I must confess I had never heard it referred to as an immunity until this case came to my attention.

McHUGH J: I think Fleming may be responsible for it. Fleming used to use the term "immunity". Does he still use it?

MR MORRISON: Certainly in the last edition that I looked at, yes, he does, although I understand there is a new edition being prepared by a new author of Fleming on Torts and I do not know what that will contain. But the immunity is the term he uses.

GLEESON CJ: It may be a convenient term for lawyers to use in giving practical advice to their clients.

MR MORRISON: Yes. But the fact of the matter is that the areas which are the subject of an immunity, if we can use that term, are rapidly narrowing. After all, the protection afforded to the judiciary, it may exist at common law, but it also exists pursuant to statute as well in most jurisdictions in Australia that I am aware of. There are very few other immunities. For example, the immunity that is referred to in submissions about rescue cases is not truly an immunity.

GLEESON CJ: What if you departed from the language, or perhaps even the rhetoric, of immunity and considered it in terms of the distinction between acts and omissions, is the distinction between acts and omissions one that is still important?

MR MORRISON: It would still be a very unsatisfactory distinction. Let us take a rescue case, for example, and, we would say that, in truth, it is not an example of an immunity. The fact of the matter is that the rescuer is a person who volunteers to assist and the reasonableness of whose actions will be viewed in that light. The urgency, the difficulty of providing assistance are all matters which are relevant to the duty of care, but that does not mean there is no duty of care.

McHUGH J: That cannot be right. I have never heard it suggested that there is a duty of care to rescue people. If I see somebody drowning in the surf, I can sit on the beach.

MR MORRISON: That is a different matter; I am talking about people who have chosen to assist, say, at the scene of an accident.

GLEESON CJ: What was the judgment of Justice Deane in which he said that Dives was not responsible for the death of Lazarus?

MR MORRISON: I cannot assist, your Honour.

GLEESON CJ: Through failing to feed him.

McHUGH J: It could have been Jaensch v Coffey, I think, I am not sure.

MR MORRISON: But ultimately, your Honours, the question of the duty is not whether or not a duty exists in respect of a rescue case; it is what is reasonably required to meet that duty, and it may be that for a breach of the duty the requirements would be set very high. It may be that one means of dealing with the problem of the liability of councils in respect of roads, is for the courts to do what the Chief Justice of South Australia did in Calvaresi and that is, to say, "Having regard to resources, planning considerations, whilst there was a duty of care, I do not think there was a breach." Those are all measures - - -

McHUGH J: That is a very unsatisfactory state of affairs and that is part of the problem of imposing liability in this area, that you do not have to litigate these issues of whether a duty or breach in which courts are going to have to second-guess the allocation of priorities, you are going to have a great deal of evidence tendered in respect of it; it is hardly an efficient system.

MR MORRISON: Well it is certainly no more inefficient that the present system, your Honour, which in large measure invites the same problem. After all - - -

McHUGH J: No, I think that is overstating it. There are a large number of precedents which say what constitutes nonfeasance and what may constitute misfeasance. It is a question of whether or not you can bring this case into one or the other, but there are many, many cases on the books which hold a case of nonfeasance and, as I would say, no duty is owed. They are there. If we are entitled to look at it, and some of the material put forward by somebody - I think it was from Victoria - has suggested that they get these couple of telephone calls a week and because it is a case of nonfeasance that is the last they hear of them. We would certainly be inviting a lot more cases if we abolish this rule. One view is that we say there is no such rule of immunity, that every case has got to be considered on its own circumstances - - -

KIRBY J: That is normally what happens in negligence.

McHUGH J: But then you invite duty to be argued in almost every case. It is a very unsatisfactory way. But, it may be that the legislature would see it differently, that perhaps if you are going to get rid of this "no duty" rule then some percentage of moneys raised from motor car premiums should go to councils and so on to help them meet it, rather than the ratepayers. They seem to be legislative solutions rather than judicial solutions to a difficult problem.

MR MORRISON: But the difficulty is that this is only one aspect - it may be a significant aspect but only one aspect of council's functions and all of those difficulties presently arise in respect of every other aspect of council's functions.

McHUGH J: But when they exercise a power they must not exercise it negligently, that is the general rule, unless there is something in the statute, but it has been put to you again and again this is not that sort of case. You are saying they are negligent because they did not exercise their power to repair. That is a very different proposition.

MR MORRISON: But at the end of the day a failure to exercise a power, when a body knew or should have known that there was a class of persons likely to suffer injury as a result, is just as negligent as exercising the power in an unsatisfactory fashion.

McHUGH J: It may be negligent if you talk about it in some loose sense but it is not negligent if there is no duty of care.

MR MORRISON: In the technical sense that is true, but if we are talking about moral culpability, if we are talking about - - -

McHUGH J: Yes, but if we talk about moral culpability, the examination of the law in Crimmins, in Pyrenees was beside the point because, on your argument, you have got a power and you can foresee the risk and therefore you should do something to exercise it. Now, that is just not the law.

MR MORRISON: We would say that there can be no justice in shifting responsibility for the fault of a road authority to its victim merely because it would give rise to some modest increase in cost spread amongst the many and that ultimately that is the issue. Why should the victim of a failure by the Council to act bear the cost, particularly given when in other areas of Council responsibility a failure to act is not necessarily subject to this defence.

McHUGH J: But it is. That is the point your argument does not seem to grapple with. Pyrenees and all the other cases establish that merely because you have got a power does not mean you are under any duty to exercise it. You have got to find something more than foreseeability. It does not matter whether you are talking about inspection of buildings as in Sutherland Council v Heyman or you are talking about repairing roads, you have got to have more than a power and foresight of risk or harm.

MR MORRISON: But is not the answer to that that if what you have is a Pyrenees-type exploration of whether or not the duty occurs in the particular case and all you do is extend that to the road function of councils, the floodgates are not going to open but nonfeasance will not be an absolute defence. That is all one is talking about.

McHUGH J: I know you say that is all one is talking about but it seems to me that you are saying there is an affirmative duty, one - you do not even rely on knowledge. You are saying they ought to have known and once you accept that, then the Council has got to employ people to inspect all its roads, bridges and then take whatever steps, as necessary, to repair them.

MR MORRISON: But, again, your Honour - - -

McHUGH J: And the beneficiaries may be people who have only got a fleeting connection with that particular municipality. It may be somebody coming from interstate or out of the area and the ratepayers then have to meet that person's use of a particular road in that municipality. Now, it may be that should be the law, but why is it not for the legislature to make that judgment rather than this Court?

MR MORRISON: That was the argument that was raised in the Gloucester Shire Council Case, the recent unreported decision, where it was said, "We have a municipality of 2,500 people, very limited resources." They open up this road. But the countervailing argument was this: that road was opened up, not just for the residents, but as a tourist road in contemplation that tourists would use it. It was renamed Thunderbolt's Way to encourage people to use the road. Why then should there not be the same responsibility towards the tourists that they encouraged to use it for the failure to put signage to indicate dangerous corners as there would be towards ratepayers?

Again, does it not come back to the particular circumstances as to what is required to meet the duty? It does not follow that Council has to inspect every footpath every week merely because of the duty of care in relation to footpaths. Council merely has to do what is reasonable having regard to its resources and having regard to the degree of risk. Ultimately reasonableness is the test.

McHUGH J: But who judges what is the proper allocation of its resources? Perhaps the Council might say, "Well, instead of employing two men or women to go and inspect roads and bridges, we would prefer to employ them to provide Meals on Wheels to aged inhabitants."

MR MORRISON: Well, that comes down to the policy/operational distinction and the courts, in broad terms, where that defence is properly raised, have said, "We will not intervene in that situation to find the legislative body or the council liable."

KIRBY J: I suppose that one argument for lifting the so-called immunity is that at least it would require councils to address that issue and not simply to say, "Well, we do not have to worry about footpaths or roads. We just build them and forget about them."

MR MORRISON: Indeed, and it does not necessarily follow that increased expenditure on roads or footpaths would necessarily be a bad thing if, for example, it reduced the incidence of litigation, reduced the expense to other government instrumentalities in terms of social security, hospital expenses. It does not follow - - -

GLEESON CJ: But how can we evaluate a submission like that? What you say may be right, but how would we know?

MR MORRISON: But the answer is that the courts are interfering with the allocation of resources now because of this immunity, whereas, absent this immunity, that defence of policy, of allocation of resources, is available to councils and remains available to councils and the courts then will not interfere if, on the face of it, it was not simply an act of casual negligence in failing to fill in a hole but, rather, was a decision reasonably arrived at that other things had a greater priority.

HAYNE J: But every council of every municipality is spending or saving its money in a particular way. It is making decisions about what it will spend its money on. How can the courts resolve the issues which you say arise without affecting those decisions? How can you avoid it by saying, "Oh, well, that's for council to show"? The inevitable consequence seems to me that you affect - I will not say "disturb" - what in fact they do.

MR MORRISON: Your Honour, the law as it stands now affects the way in which they carry out their operations. A change in the law to require the ordinary law of negligence to apply to all areas of council activity would have some effect but - - -

HAYNE J: But again you slide over the fundamental proposition that needs to be addressed in this case which is: is a council bound to take positive steps? That is, is it in this context bound to spend money?

MR MORRISON: Our answer to that has to be: that depends upon the particular circumstances. If we are talking about a decision to divert resources from Meals on Wheels to roads, then that is a decision in respect of which the courts will not interfere. If, however, council has a policy to keep roads in repair and it is simply an act of casual negligence to fail to repair a particular pothole, even though there were gangers in the area and the materials in the area, then why should councils be immune from that act of casual negligence? We would say there is a distinction.

McHUGH J: But you assume there is negligence. Negligence in law assumes a duty. That is what you have to show. Why should not a council be able to say if it wants to, "Well, we're going to cut the rates this year. We want to get re-elected, so we're going to cut the rates"? There is less money to spend on repairs. Why should not they be able to make that decision?

MR MORRISON: Your Honour, ultimately the courts draw a line between policy decisions and operational decisions. It will depend upon how the particular injury was caused, where it falls within that spectrum and whether or not it is a matter which is justiciable. That is a difficulty which arises. It arose in Crimmins. It is a problem which the courts have to grapple with all the time. It is not a new problem and it arises in many other areas of council activity now.

GLEESON CJ: Mr Morrison, how long do you expect to require for the remainder of your argument?

MR MORRISON: Your Honour, about another half hour. I wish to pass to the other submissions, which I will deal with fairly briefly, and perhaps then give way to my learned friend, if that is a convenient course.

Your Honours, may I just conclude that point by quoting what was said by the Chief Justice of South Australia in Calvaresi at page 23, paragraph 125 where he said:

The duty of care does not require perfection, only reasonable care and the adoption of reasonable measures.

We would respectfully submit that it is that test which would ultimately deal with the floodgates argument.

Might I then pass to our second submission - - -

GLEESON CJ: You mentioned that there are a number of legislatures that have abolished this distinction.

MR MORRISON: Yes.

GLEESON CJ: Is there any court that has done that?

MR MORRISON: The one court that has done so, did so in a partial fashion in a particular case. That was City of Vancouver v McPhalen, and that is referred to in some detail in our written submissions. That is an interesting case because it turned upon the applicability of the law as it had developed in England to circumstances in part of Canada. The majority view I think is probably best expressed in that decision at page 221. That is the views of Justice Duff, with whose views the Chief Justice concurred, when he said:

There can, I think, be little doubt that the common law rule under which the inhabitants of parishes through which highways passed were responsible for their repair was never introduced into British Columbia. By proclamation of Governor Douglas, on the 19^th November 1858, issued under the authority of an order-in-council of 2^nd February, 1858.....it was ordained that "the civil laws of England as the same existed" on the 19^th November, 1858, and so far as the same are not from local circumstances in applicable to the Colony of British Columbia are and will remain in full force in the colony till such time as they shall be altered.

He said then at page 222:

The common law rule has never been acted upon and was, in 1858, and still is, "from local circumstances inapplicable."

HAYNE J: Did not their Lordships decide the case upon the basis that the statute on its proper construction imposed a duty for the benefit of the individual?

GUMMOW J: That seems to appear both at 195 and 200.

MR MORRISON: Indeed. But it would seem that - that certainly was a ground of the decision, as well, that is based upon statutory construction. But the point I draw from that case is that the view was taken also that the law, as it had developed in England, had no application in terms of applicability to the circumstances of British Colombia in 1858.

KIRBY J: According to the statute, on page 199, it is simply a wide power for opening, making, et cetera, roads, and so on.

GLEESON CJ: According to the bottom of page 195, it is a "duty". It says "every such public street", et cetera, "shall be kept in repair by the corporation".

HAYNE J: A duty which inured to the benefit of the individual.

MR MORRISON: Yes, that certainly was said, your Honour, and that certainly was one of the grounds upon which the plaintiff succeeded, but the view was also taken that the nonfeasance rule - - -

KIRBY J: What did it matter if there was a statutory duty? The fact that there was some common law rule would not really - this is the whole problem, you see. Back in 1911 in Canada and Australia, and longer in Australia than Canada, everybody was hostage to English ideas.

MR MORRISON: Yes - - -

KIRBY J: Kept talking about them, going on and on about them, instead of.....the statutes.

MR MORRISON: Indeed. Your Honours, our second submission relates to the way in which the doctrine has developed and the extension of the doctrine in relation to the road reserve. Now, we have set out in some detail, in our written submissions, what we say about that. Can I simply add this, that the authorities clearly restrict the application of the doctrine, not upon any logical or coherent lines - but then the doctrine itself does not arise from anything logical or coherent, we would say - but they restrict it too, as the Chief Justice said in Buckle, at page 271, "part of the road construction". Justice Dixon at 281 in the same case said:

It 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.

Now, he also said in a passage that is relied upon by the respondents at page 286, he refers to:

a road, street, bridge, footpath, or other place over which there is a public right of passage -

But that has to be read in the context of what else was said. It said, commencing about two-thirds of the way down 286:

So far I have dealt with the liability of a road authority only, that is, an authority exercising powers for the construction, maintenance, repair and control of highways. A marked distinction exists between the position of such an 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 in relation to the defective condition of any parts of its undertaking, which, under statutory authority, it maintains in a highway so as to form part of roadway or pathway used by the public.

Now, his Honour then went on dissenting to hold that the drain was part of the roadway. The majority view in that case was that it was not and, accordingly, the plaintiff succeeded.

Justice McTiernan, in the same case, at page 300 said - and he is now drawing the distinction and the definition out as to what an artificial structure is, to separate it out from the roadway proper - about two-thirds the way down the page:

The criterion for determining whether anything placed in the road is an artificial work must be the nature of the thing itself. It seems clear that the term should not be applied to a road or a section or a layer of road or its foundations made of artificial materials or of both artificial and natural materials. The expression, as I understand it, denotes a structure which is appurtenant or subservient to a road but not a component part of the road fabric.

So the doctrine applies onto the "road fabric" itself.

In England the same distinctions were being drawn. For example, in Simon v Islington B.C. (1943) 1 KB 188 at page 197, the court said this, about two-thirds of the way down the page:

That immunity extends only to damage due solely to the non-repair of the road qua road. It does not extend to acts or defaults of the highway authority in connexion with any duties except characteristic highway duties such as that of repairing the road. It does not apply in connexion with public health duties, e.g., in connexion with sewers; nor with the duty of protecting the public from falling into an unfenced pit alongside the high road; nor with duties imposed by the Road Traffic Acts, 1930 and 1934. If such other duties have been undertaken by the body which is also the highway authority and ill-performed, then the highway authority may be sued by the person injured and the immunity doctrine is no defence.

And they refer then to Skilton v Epson and Ewell U.D.C. (1937) 1 KB 112. Your Honours will recall, that was the stud which had been inserted in the road as a traffic marker; a passing vehicle flicked it up and it struck a cyclist.

HAYNE J: I am obviously missing something, Mr Morrison. What is the proposition that you say we should deduce from these authorities that is relevant to this case?

MR MORRISON: That the immunity is only an immunity in respect of the road structure itself and, if we read the footpath as part of the road, the footpath itself.

HAYNE J: So that what, the gap or the drop of 50 ml is not a defect in the footpath? Is that the proposition you are putting?

MR MORRISON: That is exactly the proposition, your Honour, and if your Honour says that is illogical - - -

HAYNE J: So it is not that the footpath is 50 ml too high, it is that the ground beside it is 50 ml too low?

MR MORRISON: That is exactly so, and if your Honour says to me that is artificial and illogical, well, that has to be said of the whole of this area of law.

GLEESON CJ: You use the expression "footpath", but the relevant word is "pathway", is it not?

MR MORRISON: Yes.

GLEESON CJ: Now, is the pathway only the cement?

MR MORRISON: We would say so. That is that the areas beside the cement were not intended for pedestrian passage. They may, from time to time, have been used and obviously were used for that purpose but they were not intended. I will take your Honour to some authority in relation to what happens in areas of the road not intended for driving or pedestrian use.

McHUGH J: But what about a case like - is it Cowley - where there was a drop of 18 inches beside the road, and what is more, the council in that case said they had spread gravel and widened the road or path, had they. The House of Lords held no liability.

MR MORRISON: Again, the fine distinctions in this area give rise to these difficulties.

HAYNE J: Let me just understand these fine distinctions, Mr Morrison. What you are telling us is, as I understand it, that the roadway upon which cars passed was a public highway, there is then a gap where there used to be grass, that is not a public highway, and then there is a couple of feet, or whatever it is, of public highway there, is that so?

MR MORRISON: Yes, your Honour.

HAYNE J: I see. And, was there evidence to that effect?

MR MORRISON: I think in the sense that there was evidence about the nature strips, the extent of them.

McHUGH J: Yes.

MR MORRISON: If that is what your Honour is referring to the answer is yes.

McHUGH J: No, I am referring to the definitions of public road.

MR MORRISON: There was no evidence about Council having declared the nature strips to be footways or public road. There is no evidence about that.

McHUGH J: So, there are two public roads here, are there, the part on which the cars pass and the part on which the pedestrians pass?

MR MORRISON: Yes.

HAYNE J: An unusual result, I would have thought, because what is the status of this intervening land?

MR MORRISON: It is simply another area of which the Council is the occupier, like many other parts of the Council's property.

HAYNE J: I see.

KIRBY J: Your point is, I suppose, is that if you are going to be bound by this rigid rule of the past, you should only be bound by its full extent and no more, not an inch more, not a centimetre more.

MR MORRISON: Exactly so, and I do not suggest that the distinction is a logical or a fair one but then neither is the rule. That distinction has been drawn previously. In the decision of Donaldson v Municipal Council of Sydney [1924] NSWStRp 34; (1924) 24 SR(NSW) 408 there is a passage at 412 which is of interest in the judgment of Justice Ferguson. That was a footpath issue, a failure to fill in a depression. His Honour said this:

I think that the position is exactly the same as if the Council had withdrawn a certain part of the highway and turned it into a garden plot. If that plot were allowed, by neglect, to get into such a condition as to be a source of danger to people using the highway, it could not be said that the neglect was mere nonfeasance in the repair of the highway.

Now, in the say way - - -

KIRBY J: Which was the lantana case where the council had exterminated the lantana.

MR MORRISON: Yes. That, your Honour, is Flukes.

KIRBY J: The path leading right to a precipice.

MR MORRISON: Yes, interestingly the roadway had a 20-foot drop in Flukes in the middle of it. That is Flukes v Paddington Municipal Council [1915] NSWStRp 59; (1915) 15 SR(NSW) 408. Two boys were doing some tobogganing on the back of an old chair on the road itself. In the centre of the road, clearly part of the road reserve, but in the centre of the road was a 20-foot drop. There was a fence, but the lowest rail of that was some distance above the ground, and it had been covered by lantana. Shortly before the Council removed the lantana, exposed the danger, and the majority in the Full Court of the Supreme Court of New South Wales held that that was not covered by the immunity.

A not dissimilar result also occurred in Moody, a decision of this Court. That is The Council of the Municipality of Woollahra v Moody [1913] HCA 21; 16 CLR 353. That was a case where Council had constructed a gutter in a fashion which led, in due course, to erosion beside it. The erosion occurred some considerable time later. A car fell into the erosion and there was a property damage claim. The car, I think, was also struck by a tram subsequently to complicate the issue. The issue which arose was whether the Council was entitled to its immunity in those circumstances. It was held that it was not. It was held on more than one ground. It was regarded as being a positive act in the sense that the prior work which had been carried out had led to the erosion, but also because the leaving untouched of that part of the road which became dangerous ultimately could not be said to be mere nonfeasance in circumstances where some work had been carried out. We say that is not really different to our situation, where Council, by its activity at a different point, has added to the risk.

McHUGH J: Well, you assert that, but all they have done is create a pedestrian mall which, in the course of time by reason of wear and tear, becomes a danger. If that constitutes misfeasance, you might as well say there is no nonfeasance doctrine.

MR MORRISON: Your Honour, it may be that is the answer to the conundrum because, as we have sought to illustrate, the cases allow either answer to the question as to whether there should be liability.

McHUGH J: One can readily understand cases like Moody. It seems quite a proper case. The council has done something and positive activity and they create a danger. That is different from providing a road or a pedestrian pathway and it falls into disrepair.

MR MORRISON: Can I come back to the words of Justice Fullagar in Gorringe [1950] HCA 6; (1950) 80 CLR 357 at 379 and it is worthy of note that this is some considerable time after the words of Justice Dixon in a minority in Buckle. Clearly his Honour did not think that there had been any widening of the accepted view portrayed by the Chief Justice and Justice McTiernan in Buckle because he described the extent of the application of the doctrine in these terms:

It would also seem to be the accepted view today that the rules apply 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" in Buckle v Bayswater Road Board. Bridges, drains and culverts, which are essential parts or accessories of a roadway, are generally considered as falling within the purview of the rules.

Now, we simply say we do not fall within those definitions. The words "road reserve" appear to have their origin in the decisions of the Court of Appeal of New South Wales in what was termed the nonfeasance list that was dealt with early last year, but we are unable to find any use of the words "road reserve" prior to those cases, which included Ghantous. There seems to be no historic basis for increasing the road proper, the road qua road, the roadway itself to mean something more than the road surface and perhaps the footpath surface itself defined, as it is in our case, as part of the roadway. If a drop beside the roadway or even a garden bed in the roadway or a drop within the roadway are not covered, then why should this drop beside the footpath be covered? We simply say that on the historic immunity it has no application to our position.

Your Honours, our third submission relates to the application of the doctrine to councils acting in capacities other than as a road authority. For example, the Chief Justice in Buckle v Bayswater Road Board at 271 and 272 says, reading from towards the foot of the page:

The non-feasance rule, however, applies only in the case of highway authorities and not in the case of other authorities which have power to interfere with roads - such as water, drainage, and tramway authorities.

If a public authority is empowered to construct and maintain drains and, having constructed a drain under that power, whether in a road or elsewhere, fails to keep it in proper repair, and that failure amounts to negligence, a person who is injured in consequence of such negligence has a right of action for damages against the public authority.

Over the page at 272, his Honour says, towards the foot of that page:

The same body may be both a highway authority and a drainage authority. Its liabilities in these two capacities are quite distinct -

In Gorringe the same distinction is maintained. Justice Fullagar, at page 379:

It would seem to be the accepted view today that the rules apply only to highway authorities (Buckle v Bayswater Road Board). They do not apply to sanitary or drainage or tramway or other such authorities. It not seldom happens that the same authority is (as in Buckle v Bayswater Road Board) both a highway authority and a drainage authority, and the somewhat unreal question whether it failed to do something in its capacity of highway authority or in its capacity of drainage authority may be the whole question on which a plaintiff's right to recover damages depends.

Again, we say that is the state of the law. It might be artificial, it might be illogical, but the fact of the matter is that if in respect of what occurs the road authority is also acting as a traffic authority in terms of directing traffic, then it has a liability which is independent of the nonfeasance doctrine. That is illustrated in Skilton v Epsom and Ewell Urban District Council. That was the case that I referred your Honours to in relation to a traffic stud in the road and it was said that the traffic function of the road, even though the stud may have been part of the road surface, because it was exercising powers under the Motor Traffic Acts, it had a separate function in that regard and the nonfeasance doctrine was no protection.

McHUGH J: But the rationale, although it is not made plain in those cases, is simply this, that if you put a drain in a roadway and it is defective, you have created a nuisance in the roadway. Prima facie you are liable for the nuisance. If you allow a highway to fall into a state of disrepair and you have control of it, you have created a nuisance and you can be indicted for it. But the common law said you do not owe a duty of care to the users of that roadway. But that principle does not apply in the case of others who create nuisances in or about or in relation to highways.

MR MORRISON: Even though it be the same body?

McHUGH J: But there are different principles involved.

MR MORRISON: Indeed, but is that not the point, that in respect of the Council, for example, in Turner v Ku-ring-ai Council there was a positive duty to put up a road sign. There would not have been a positive duty to repair the road, but in terms of the consequences for the victim, in terms of any rational distinction, it is very hard to justify why one should be the subject of an immunity and not the other.

McHUGH J: One reason is that if the body who puts in a particular drain is going to deal with the issue of the particular drain. Whereas, the Council, or the highway authority, has to look at maybe hundreds of miles, perhaps thousands of miles of roads in a particular municipality if it is larger. That may be the difference. So the courts have introduced a blanket rule: no duty for the highway authority, ordinary principles apply to the person who creates a danger.

MR MORRISON: Or is it the case that the rule really grew up like Topsy and not through any logical application of that thought process, but rather because there was an existing immunity from suit in England which was adopted by the highest legislature there and slavishly followed in this country?

McHUGH J: No. Part of the problem may be that in some of the cases the judges did not pay sufficient attention to the question of an affirmative duty to act on the part of a statutory authority. Since Heyman, we do.

MR MORRISON: Well, your Honour, can I add this, that as recently as the decision in Calvaresi v Beare, that is the decision of the Chief Justice of South Australia of 15 February this year, unreported, at page 40 of his judgment his Honour said this:

I do not consider that the common law principle, that a highway authority owes no duty to undertake active measures to maintain or to repair a highway, applies to the Commissioner of Highways or to the Council when exercising powers under the RTA in relation to traffic control devices. In my opinion it is likely that the principle denying the existence of a duty of care is limited to the state of the highway or road surface and to matters closely analogous to that. There is considerable force in the reasoning to that effect in Turner v Ku-Ring-Gai Municipal Council.

That is the way law is in fact being applied, it would seem.

McHUGH J: It all sounds to me as if it is an accurate statement of the present law. The question is whether the Court should maintain a rule of no duty in respect of highway authorities. You want us to say we should abolish that rule and leave the matter at large and subject highway authorities to litigation in relation to duties just as other statutory authorities can be made the subject of litigation in respect of things - - -

MR MORRISON: Or in the alternative, to confine the rule in the way it historically has been confined and not in the way it has been expanded by the Court of Appeal in New South Wales.

McHUGH J: Well, I have read your submissions and I have heard your argument. At the moment I do not think you are going to have much luck, at least with me, unless you can abolish the nonfeasance rule. Your case, seems to me, to be a case of nonfeasance.

KIRBY J: What is the closest analogy in this Court to taking the step that you invite the Court to take? I am thinking of Papatonakis and other cases where the Court moved Burnie Port, perhaps, from a category back to the general principle and the, as it were, conceptual foundation of common law doctrine because that is, as I understand it, what you are asking us to do? Now, what do you say is the closest instance of such a step that the Court has recently taken?

MR MORRISON: Perhaps Zaluzna. Perhaps that line of cases starting with Hackshaw v Shaw and leading up to Papatonakis. Perhaps Burnie Port Authority. They are all examples of the Court going back to basic principles to deal with what might be seen as an aberration in the development of the law.

KIRBY J: Burnie Port is a pretty good example, is it not?

MR MORRISON: Yes.

KIRBY J: Of getting back to the concept instead of continuing with the particular engrafted special rule.

McHUGH J: Is there any case you can think of where the Court has said, "Although the existing rule has been no duty of care, we are now going to hold that there can be a duty of care"?

MR MORRISON: Burnie Port Authority does not say that because it really is simply changing the rules governing the duty of care rather than the existence.

McHUGH J: It cuts it back.

MR MORRISON: Perhaps the way in which the law is treated in Papatonakis and in Zaluzna would be the closest analogy. I cannot give your Honour a direct analogy.

McHUGH J: No. It may be those cases assist you to this extent, that by subsuming the category rules under a general rule, it brought into play duties of care in particular situations which would not have existed if the category rules had continued to control the field.

MR MORRISON: Yes. Your Honours, if I might deal as quickly as I can with the final submission we wish to press and that is that what occurred was, in fact, misfeasance and not nonfeasance. I have said something about that already. Can I simply say this, that having regard to the fact that Council acted in ways which led not to - I will start again. What the Court of Appeal said in regard to this issue was the findings of fact by Judge Freeman demonstrate clearly the respondent has taken no action in relation to the footpath at the site of the accident which created or added to an unnecessary danger. That is in Justice Powell's judgment.

What it amounts to is to really go back on what had been said in Grafton City Council. The action by the council does not have to be action at the particular point at which the injury occurred. For example, in Moody the council's action was not at the point where the erosion occurred and the accident happened, but it led to the erosion, it led to the accident. In the present case we say that the Council's activity, albeit five and six years earlier, created this danger just as much as if a Council employee had gone out with a pick and shovel and dug a hole beside the footpath and we say that that is - - -

McHUGH J: But the danger that you say it has created is that it allowed, to use your expression, "more people to use the roadway". Well, if that is sufficient to do away with the so-called immunity doctrine, it does not seem to me to have any substance.

MR MORRISON: It did more than that, your Honour. It provided a footpath that is double the width and channelled it onto a narrower footpath and it increased the level of traffic and it did so with a certain inevitable consequence that given that prams and shopping trolleys and people were going to be walking along the footpath, there was going to be spillage over into the edges. Now, at one time that might have been acceptable because the grassed areas would have coped with that but, once that level got beyond the area that was acceptable for an ordinary suburban footpath, then the Council had created the danger. We would respectfully submit that by analogy with Grafton City Council, that is clearly misfeasance and not nonfeasance and we - - -

McHUGH J: What about Hillier v The Commonwealth? Are you familiar with that case which is in the Argus Law Reports back in the 1960s? Does it not expressly hold that the fact that you allow a road to be used by heavy vehicles does not take you into the misfeasance area?

MR MORRISON: I am not familiar with that case, your Honour, but again, is that not an illustration of the oddity of the doctrine which says that you can do something which you know is going to create a danger for others but not be responsible for the consequences?

McHUGH J: It is in the Federal Law Reports as well.

MR MORRISON: But we just say that just illustrates the unsatisfactory nature of the doctrine. Ultimately, your Honours, we would say: why should not a road authority be liable like anyone else for the foreseeable consequences of a failure to act reasonably in all the circumstances? We would say that if in logic the rule is no longer confined to the road proper, but relates to the whole area that the road authority occupies, then there is simply no reason, legal, historical, or logical, not to imply the same duty of care as falls on any other occupier in those circumstances. That is merely a duty to do what is reasonable in all circumstances.

Your Honours, I have not dealt with everything that is in our written submissions. We would nonetheless rely upon the balance of our written submissions. Unless there is something further I can assist the Court with?

GLEESON CJ: Thank you, Mr Morrison.

MR MORRISON: We have the further definitions and I provide those to the Court. Unless there is something further, those are our submissions.

GLEESON CJ: Thank you. Yes, Mr Jackson.

MR JACKSON: Your Honours, may I commence by saying two things: the first is that I do not propose to cover, of course, all the ground that has been covered by my learned friend, but to deal with a number of aspects that are particularly germane to this case.

The second thing I wanted to say was something about this case in this sense that as your Honours will have seen that this case came about when a loaded truck fell through a bridge when part of a bridge collapsed because underneath the decking was corroded in the sense that termite, or whatever, had eaten large parts of it out. It was a case where - it was not a case where the Council did nothing in relation to the bridge. The Council had replaced, including the year before, planking on the top of the bridge immediately above the parts that were corroded. In addition, this was a case where there was a Council inspection program which was proved and in relation to the basic - - -

GUMMOW J: Which was?

MR JACKSON: Proved, your Honour. We proved it. I will come to the detail of it a little later in my submissions. This was a case where the question of the existence or non-existence of the nonfeasance doctrine was raised from the start of the proceedings. The Council chose to give no evidence. We adduced evidence of material derived from their records to show the existence both in the Council itself and also in the roads of New South Wales of established inspection programs for bridges of this kind. Nothing was adduced to show that this was too expensive or abnormal or anything of this kind, so, your Honour - - -

McHUGH J: Are you going to invoke the general reliance doctrine that people in this municipality rely generally on the Council to carry out this inspection of bridges?

MR JACKSON: Well, I am going to say two things, your Honour. One is that general reliance is founded in the first place in the statute itself where the Parliament relied on the municipality to do it. That is the first thing, your Honour, and the second thing is that one can call it general reliance or anything that one likes really, but the fact of the matter is that people using the roads of the municipality were entitled to expect, in our submission, that they would be maintained and one - - -

GAUDRON J: Do you have to say that? Do you have to go so far?

MR JACKSON: No, I do not have to, your Honour. I am perfectly prepared to say it in answer to your Honour Justice McHugh. The last thing I wanted to say about the particular case, and I will come back to it later, was this, that what was done by the Court of Appeal was to find that even though the Council did do work on the bridge, in other words, took it under its command, as it were, even though it had a programme for inspecting the bridges, which on the primary judge's findings was performed negligently, one still had a situation where, because the Council did nothing to the under-structure of the bridge, the Council was not liable because of the application of the nonfeasance rule.

Now, your Honours, that is the basic element of the case. Could I indicate where I propose to go. What I propose to go to first is the statutory provisions; secondly, to look at the operation of those provisions and the nonfeasance rule as derived from the two decisions in this Court; thirdly, to go to the unsatisfactory aspects, in our submission, of the principle and then to turn to the suggested difficulties, both (a) generally and (b) in relation to the particular case. Also, perhaps I should endeavour to conclude by making some submissions about the appropriate role of the Court.

Your Honours, could I go first to the terms of the statute? Your Honours will see them, in amongst other things, the annexure to our written submissions and one sees Part IX of the Local Government Act. Now, your Honours, may I preface what I am about to say by - what I am about to take your Honours to, by saying just this, that if one looks at the decisions on statutes of this general kind, without looking to the particular terms of them, it is not, in our submission, correct to say that these are treated as statutes which are merely permissive and is not giving rise to any duty.

In fact, the point we would seek to make from them - and I will come to this when I come to Buckle, your Honours - is that provisions of this kind are treated as giving rise to a duty, not in every circumstance, of course, but are treated as giving rise to a duty, but in a particular case, a particular limited circumstance, namely, the case of highway authorities, there is an exception to that. The exception can be described as no duty or it can be described as immunity. It probably does not matter very much which. But it is a question of a judge-made rule which provides for that and, your Honours, we will be seeking to say it is one which is made by the courts and is one which can be equally unmade by the them.

Now, your Honours, could I go then to the terms of the enactment? Your Honours will see from section 220, the Parliament has made it clear that this Part is to:

apply to municipalities and shires; and

(b) the powers and duties conferred and imposed upon a council.....shall apply in respect of each area to the council of the area.

Your Honours, one then sees that under section 226, roads may be classified in relation to a particular function they are to perform, and your Honours will see the various types of roads set out in section 226(2). The roads are vested in the local authority by section 232(1). Your Honours will see the ambit of the vesting referred to in section 232(2). But I should add a qualification. The qualification is that the fact of vesting is, as your Honours will see from 232(3)(e), not to impose a liability on the Council in respect of rates or in relation to dividing fences "or any liability in any case where the council would not be subject to the liability" if the Council, to put it shortly, had not vested the road in fee simple in the Council.

Now, your Honours, may I say I do not seek to suggest that there is a kind of occupier's liability duty that has arisen. All materials placed in the road become the property of the Council - that is section 233(2) - and bridges are specifically stated to be part of the road - that is section 236(1) and (2). Your Honours, from there one goes to section 240. Your Honours have been taken to section 240 already. May I just take your Honours to a couple of parts of it specifically. Your Honours will see the opening words of subsection (1) which empower the Council to:

construct improve maintain protect repair drain and cleanse any public road -

and then, your Honours, some specific other powers are given or additional powers are given. It says in paragraph (a), the council may:

construct -

et cetera -

with such materials and in such manner as the council thinks fit.

That is the provision which really is the provision closest to the provision which was in contemplation in Buckle.

Your Honours, when one goes to subsection (2), your Honours will see that the Council is given a power:

For the purposes of this section -

section 240, to:

(a) temporarily stop the traffic or certain kinds of traffic -

and to -

(b) to make and fence a temporary road -

and so on.

One then sees, if one goes to section 249, that in addition to the power which was given by section 240 there is an additional provision. Section 240 was the first provision in Division 7 which was the power. It is headed, "Construction improvement and use of roads". The one comes to Division 8 which is the provision for control and management of them. Your Honours will see in section 249 that it says:

The council shall have the care control and management of every public road -

Now, that is committing to the Council the care of the road. It is not just a provision saying the Council may do this or may do that, it is a provision saying:

The council shall have the care control and management of every public road -

Then, the provision goes on to refer to other powers in relation to the road and in particular your Honours will see, if one goes to paragraph (k), that one of the powers given to the Council is to:

regulate the use by the public of the road -

And, then, paragraph (m), to:

control and regulate the weight of load (including the vehicle, if any, upon which the load is carried) which may be carried upon or over any bridge culvert causeway or road-ferry.

So that included in the - as well as committing to the Council "the care" et cetera, "of the road" a specific power is given to prevent damage to bridges and to people who are driving vehicles over bridges. The Council, also, as your Honours will see from section 250(1), can:

For the purpose of doing any work upon or under any public road, or whenever any public necessity may arise,.....may prevent any traffic through or along the same, and may take any measures for the protection of the public from accidents.

I think I have taken your Honours already to 240 and section 250(4). I see the time.

GLEESON CJ: We will adjourn until 2.00 pm

AT 1.00 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.04 PM:

GLEESON CJ: Yes, Mr Jackson.

MR JACKSON: Your Honours, there is a matter my learned friend, Mr Morrison, wishes to mention to the Court.

GLEESON CJ: Yes, Mr Morrison.

MR MORRISON: Thank you, your Honour. Mr Justice Callinan asked me a question about contributory negligence a little earlier and I was not able to deal with it at the time.

CALLINAN J: No, causative negligence, not just contributory negligence.

MR MORRISON: Yes. Can I say, your Honour, I have now extracted the submissions at first instance of both parties and I can tell your Honour that the defendant did not argue contributory negligence and did not argue any defence other than nonfeasance. I will have those copied and provided to the Court. But the only issue, and the only defence that was run was nonfeasance. There was no other issue raised.

CALLINAN J: Was there an admission of negligence?

MR MORRISON: There is no admission of negligence because they said the nonfeasance principle means there is no duty of care. But that was the only defence that was put.

GLEESON CJ: Thank you, Mr Morrison. Thank you, Mr Jackson.

MR JACKSON: Your Honours, I had gone to the provisions of the Local Government Act in Part IX and will come back to them when I come to deal with Buckle and Gorringe, and in particular some observations of Justice Fullagar in Gorringe dealing with statutes using the word "care" and "control". But may I come back to that.

Your Honours, what the cases recognise, in our submission, is that provisions of that kind are perfectly capable of giving rise to duties of care, and do so in two relevant respects. The first concerns the capacity of authorities as other than road authorities. The second concerns the position of road authorities themselves.

Your Honours, may I, in that regard, take your Honours to Buckle in [1936] HCA 65; 57 CLR 259 and, your Honours, the same provision, which your Honours will see at the top of page 268 - your Honours will see the provision set out there and your Honours will see immediately after the provision, Chief Justice Latham saying:

Thus the defendant board is empowered to make and maintain both roads and drains. It is both a road authority and a drainage authority.

Then his Honour said:

Although the powers with respect to roads and drains are conferred by the same provision and in the same words, a long course of judicial decisions has established that the responsibilities of a public authority in relation to roads and drains are very different.

Now, your Honours, if I could just pause there to say his Honour makes it clear, in our submission, that when he speaks about drains he is not just speaking about drains in roads, the drains either in roads or anywhere else. His Honour goes on to say:

In this case the liability.....may depend upon the answer to the question whether, in making the drain, the board was really only making or completing a road which had to be drained or whether it was making a drain not as part of a road work.

KIRBY J: If one put that to music, you would really think the law had lost its sense. I mean, to make such distinctions.

MR JACKSON: Your Honour, there is a certain fineness about them and I will come to elaborate upon them a little later, if I may? Your Honours, one then sees in paragraph (2), his Honour saying:

A public authority having powers of care and maintenance of highways -

your Honours will see "of highways" -

is not by reason merely of the existence of such powers liable for damage resulting from non-feasance. Mere non-repair of a road surface does not give.....a cause of action for damages -

et cetera. Now, your Honours will see that if one goes from that page over to page 270 his Honour deals further with the position in relation to the authority in relation to drains. Now, your Honours will see at page 270, about three-quarters of the way down the page, having referred at the start of the paragraph to Municipal Council of Sydney v Bourke, his Honour says:

These decisions, correctly understood, are not inconsistent with the principle of non-liability for non-feasance to which reference has been made. They leave untouched the proposition that mere non-repair of anything that is part of a road is not a ground of liability.

Then, your Honours, at page 271, halfway down the page, his Honour said that:

For the purposes of the present case it is sufficient to state that there does not appear to be any doubt that when a public authority, having a right to place a drain under a road, is guilty of negligence in maintaining the drain, the authority is liable for damages for resulting injury, subject always to the rule that if the drain is shown to be simply a part of the road construction, the non-feasance rule applies.

He went on to say, your Honours, in paragraph (5):

The non-feasance rule, however, applies only in the case of highway authorities and not in the case of other authorities -

of a nature you will see set out there. Finally, your Honours, on that page his Honour said:

If a public authority is empowered to construct and maintain drains and, having constructed a drain under that power, whether in a road or elsewhere, fails to keep it in proper repair, and that failure amounts to negligence, a person who is injured in consequence of such negligence has a right of action for damages against the public authority.

Your Honours, that comes and, of course, must come from ultimately the provision that one sees at the start of his Honour's reasons which applies equally to roads and to drains. Your Honours will also see at page 272 in the first paragraph on that page that he set out the:

statutory provisions -

as being:

the governing consideration.

And said:

In the present case the Road Districts Act provides that a road board "may make.....repair, maintain.....drains."

He then referred through the remainder of that paragraph to the argument:

that such a provision is merely permissive and that the words are not apt to impose a duty either to make or to repair.

And his Honour then said:

It is true that, under such a provision, there is no duty to make a drain, but, if the power is exercised and a drain is made, there is then a duty to the public to keep it in proper repair so that it will not be dangerous to the public.

His Honour set that out through the remainder of the paragraph and then said:

The same body may be both a highway authority and a drainage authority. Its liabilities in these two capacities are quite distinct:

Your Honours, at page 273, in the second-last paragraph, he referred to the need to look to see what work was being done and what its relationship to the road was and, your Honours, if one then goes to page 287 in the reasons for judgment of Justice Dixon, his Honour, halfway down the page, referred to the distinction and said:

The distinction rests on the difference in the nature of functions and does not depend on the separate identity of the bodies that perform them. Water supply and other services are often conducted by the same corporation as constitutes the road authority.

Your Honours will see that set out for about the next eight or ten lines.

HAYNE J: His Honour having earlier said at page 286, in the last couple of lines, of the gas or water authority that:

The liability of such a body depends, of course, ultimately on the effect of the statute - - -

MR JACKSON: Quite, your Honour. I accept that. The point I am seeking to make about this head is simply that if one looks at the statute that was under consideration in the particular case, it was exactly the same provision that gave the powers to the board in its two capacities. That being so, it is very difficult, in our submission, to say in circumstances where there was held to be a duty, as a drainage authority, that those provisions as a matter of interpretation are not capable of giving rise to a duty. I would go on of course to say as a road authority. Our submission is that if one looks at provisions of this kind and one leaves out of account the particular position of highway authorities, the provisions are interpreted as giving rise to a duty in appropriate circumstances. Could I refer also to page 289 - - -

KIRBY J: Was that particular point ever addressed in any of the authorities, the discordancy between preserving this distinction and the statute?

MR JACKSON: Yes, your Honour. One sees, for example, at page 289 of the same case the reference at the bottom of page 288 and the top of page 289 to Skilton where - and your Honours, if I could go to the fifth line on page 289:

The Court of Appeal decided that the studs were inserted for the purpose of traffic control.....and not in the exercise of any powers for the maintenance of highways.

And that distinction can be seen in some of the very recent cases, including Gloucester.

KIRBY J: But the very point that you just made that it is difficult to found in the statute this distinction between drainage and roads when the statute gives the authority to do both and yet one is in and one is out.

MR JACKSON: The point I was going to make was that if one goes to, for example, what was said by - I am sorry, I will start again. What I was going to say was that it is very difficult, in our submission, to see any reason, apart from an historical reason, why there should be such a difference in terms of derivation of the duty.

McHUGH J: But why? Your arguments at different stages seem to get very close to saying that the duty was imposed by the statute. That is not the case. The duties imposed by the common law and the statute only provides the statutory framework and one has to look to other considerations as to whether there may or may not be a duty. In the case of the road one reason why there may not be a duty is because of the imposition on the authority of an affirmative duty to check many miles of road, whereas in the case of something such as a bridge or a particular drain or culvert it is, in effect, a one-off matter that is to be kept under observation.

MR JACKSON: Well, one could, with respect, hardly say that in respect of, for example, electricity power lines, gas, and many others: sewers, drains under roads.

McHUGH J: Yes, but they are matters that they are in control, the control of property and under the control of a particular body but a rule has been brought in that in relation to roads the mere fact of ownership does not itself give rise to common law duties of care, as it does in the case of the ownership or occupation of any other chattel or land.

MR JACKSON: I am sorry, your Honour, I was not, with respect, talking about ownership. What one sees is that in the case of roads and various other things, various statutory bodies are given powers and responsibilities by statute. Now, the bodies that are selected to have those responsibilities in Australia tend to be either State governments - I leave aside the question of Territories - or the next level of government, that is, the local authorities, and with the various forms of funding, to which I will come, Commonwealth and State funding. In relation to those things, however, it is hardly surprising that the large elements of government are the ones that are responsible for them.

McHUGH J: Well, one reason distinction can well be drawn in relation to the Local Government Act is that, although that is probably not the case now, after 1906 local government authorities had the ownership of many roads imposed upon them. Private roads that had been left in subdivisions in 1906, under the Local Government Act in that year, became vested in the council. So whether they had anything whatever to do with them, they had them foisted upon them. I think the 1919 Act still refers to those somewhere or other in its definition. It seems to me that there may well be a distinction between roads and building an electric power line, which the common law would have regarded as a dangerous thing for a start, extra hazardous, in respect of which you probably could not even delegate your duty of care in any way.

MR JACKSON: Well, your Honour, if I could say two things in relation to that. The first is, of course, that one is talking about roads in the sense of a means of communication that by the statute is to be made available for the use of the public. It has been made available for the use of the public - the statute says so - with the responsibility for the care, control, et cetera, of it being in a local authority. Now, in doing - - -

McHUGH J: But there is no charge. They are as of right, and roads, if they are used, will wear out. The question is should the law impose an affirmative duty on a council or an authority to use its powers to prepare it. It is not like electricity which they charge for, not like a number of other public utilities which are charged for - water, and so on - they are all charged for.

MR JACKSON: Well, what you have in relation to local authorities, of course, is some cover areas that are relatively wealthy, some do not. Some are areas where there are relatively few people. But the funding of all those bodies is not just - and your Honours have seen from the material; I will take your Honours very briefly to it shortly - that funding of all those is provided for, not just from the rates, but also from the State governments and from the Commonwealth.

McHUGH J: You may have to draw a distinction between highways. Some roads are under the complete control, I think, of the Department of Main Roads. Others are under the care and control of councils.

MR JACKSON: Certainly, your Honour, and that is dealt with in the various enactments but, your Honour, the point I am seeking - some are private roads, of course, private roads and toll roads and, your Honour, the principle does not apply to them.

HAYNE J: Could I just persist a moment with Justice Dixon's judgment in Buckle to see whether I understand the structure of it according to your submissions. At 281 to 282, his Honour speaks of road authority deciding upon what road work it will expend funds and that failure to act cannot give rise to a cause of action. His Honour discusses road authorities up to 286 and then contrasts them with the position of the water or gas, or other authority, installing some of its undertaking in the roadway.

MR JACKSON: Yes, that is what his Honour says, yes.

HAYNE J: Yes. Am I right in understanding his Honour to root the liability of the gas authority or water authority in nuisance, that is, nuisance by obstruction of the public highway and that that is why the gas authority or water authority may be liable if its works are allowed to deteriorate in such a way as to lead to a hazard passing along the highway. Or do I misunderstand it?

MR JACKSON: Your Honour, I think it right to say that his Honour does refer, I think, to nuisance, but I do not know, your Honour, that he is referring to it exclusively but rather - it is, of course, a species of liability than can exist in relation to the highway. But I do not know, your Honour, that his Honour is speaking necessarily only of a situation of nuisance and it would seem a little unlikely, with respect, in circumstances where his Honour does not seem to doubt the proposition that appears in the reasons of Chief Justice Latham, to which I adverted earlier, that a drainage authority, for example, could be liable under exactly the same provision in relation to something that has nothing to do with the road at all.

HAYNE J: But the liability that would rest upon it - does it include liability in nuisance? Is it limited to liability in nuisance?

MR JACKSON: Well, your Honour, it is the former, not the latter, in our submission. If one took, say, a drainage authority that was doing something that had nothing to do with roads, there might well be nuisance caused by what it did. On the other hand, that might equally be described as negligence in many cases. So it is not particularly limited, in our submission, to nuisance. Perhaps people in 1936 spoke a little more in terms of nuisance than in negligence than one would do today but, in our submission, it is not the end of the matter.

Your Honour, I was going to give a reference also to Justice McTiernan. I have referred your Honours to the top of page 289, the 5th, 6th and 7th lines on the page, the difference between the traffic authority and the road authority. Your Honour, if one goes to Justice McTiernan at page 298, your Honours will see in the passage commencing about halfway down the page discussing Borough of Bathurst v Macpherson, that his Honour looks at the two types of duties in a passage commencing about point 7 on the page, and then says, a little further down:

This was quite a different duty from the borough's duty to repair the road along which the drain was constructed.

Your Honours, the point I seek to make out of the case in relation to duty is that, whether it be in relation to drains in a road or out of a road or some other authority, a provision of the kind in question was one capable of giving rise to duty and it is very difficult to see any particularly good reason why a provision would not give rise to a duty in a case such as this, in the case of a road authority.

Your Honours, there is a second aspect at page 283, a second type of duty that can arise from a provision of this kind. That is referred to by Justice Dixon at page 283 and his Honour is speaking, I think, at least in a context of nuisance, in the last paragraph on that page, where he speaks about a road authority generally. Whilst it may have:

no duty to undertake active measures.....on the other hand it possesses no immunity from liability for civil wrong.

He refers to potential obstructions to the highway and then goes on to say, your Honours, about 10 lines from the bottom of the page:

Because the road is under its control, it necessarily has an opportunity denied to others for causing obstructions and dangers in highways. But when it does so, the road authority is liable, not, I think, under any special measure of duty which belongs to it, but upon ordinary principles. These principles include the rule that to render the highway unsafe is to commit a nuisance, and that to execute authorized works -

and "authorized" must mean, of course, statutory relevantly -

without due care and skill for the safety of others leaves an action to anyone who suffers a consequential injury -

And your Honours will see that goes on for about six lines on the next page.

So that, your Honours, they are two instances, in our submission, or two sets of circumstances, where the duty may derive from provisions of this kind. Your Honours, if I could just go to Gorringe - - -

McHUGH J: Does your argument come to this that, if you abolish this so-called immunity distinction, then once a highway authority lays down a road it is under a continuing duty to ensure it does not become a public nuisance?

MR JACKSON: It is under a continuing duty to take reasonable care to maintain the road in a condition fit for its use by users of the road.

McHUGH J: That is a far-reaching duty, is it not?

MR JACKSON: It is not very, with respect. I would say it is that ordinary duty.

McHUGH J: In what has been historically the case, it means that in respect of every road in this country, councils and other authorities are under a continuing duty to ensure that the roads are safe for use.

MR JACKSON: They are under a duty, your Honour. The duty may be described as continuing but the duty is to take reasonable care.

McHUGH J: But it has to be a continuing duty. That is the basis of the other cases, the drainage cases.

MR JACKSON: But, your Honour, one speaks of a continuing duty, and so it is; the duty remains. But to describe it as such rather tends to give it a greater difficulty in operation than it might otherwise have. If one looks at it from a practical point of view, one sees that in relation to the very types of things that are involved in this case, the method of performing the duty is really perfectly simple. Where there are established ways of doing it and - - -

McHUGH J: But it is the common law then that imposes the duty, notwithstanding that the statute itself is simply given a power.

KIRBY J: It does so in some circumstances. It did so in Pyrenees v Day, it did so in Crimmins.

MR JACKSON: It is a question of what the particular - I am sorry, I have lost track of who I am answering, I am afraid, or if there is a question that is extant, but I think your Honour Justice Gaudron was - - -

GAUDRON J: I am just wondering about your duty to keep in a state satisfactory for the use of road users. That means, does it not, regular inspection, regular and routine inspection? Given the policy considerations, why would it go in every case to keeping a highway in a reasonably safe condition? Why not, given the other powers of the Local Government Act to close roads and so forth and so on, why do you put it as a general blanket duty rather than to take reasonable steps in the circumstances?

MR JACKSON: I went too far in saying that. I think that is the short answer. I was not intending to exclude the operation of other powers.

McHUGH J: But does it not mean that your argument throws the weight of each case on breach? There has to be a continuing duty, on your argument, but there may be a number of options of discharging that duty in terms of closing the road or repairing it, but I think your argument must lead to the conclusion that there is a continuing duty.

MR JACKSON: Your Honour, I would not deny the proposition there is a continuing duty. If one looks to see who has the duty, it is the Council. The statute says so.

McHUGH J: Well, it does not say so.

MR JACKSON: I am sorry, your Honour. The statute identifies the person, identifies who it is to be. It is not individuals, it is the council. That being so, it is a question of whether, in the particular circumstances, the duty has or has not been complied with. Now, that is so really with all sorts of - every time one drives a car on the road the duty exists on the individual.

McHUGH J: Exactly, but that is different.

MR JACKSON: It is different, your Honour, but one is in the situation - it is different, of course, but it is a species of the same genus. I was going to take your Honours to Gorringe [1950] HCA 6; 80 CLR 357, if I may. This is the second of the three Justice decisions of the Court dealing with this topic and your Honours will see, of course, that the nonfeasance proposition was not in issue. That that is so appears at page 362. Chief Justice Latham about three-quarters of the way down the page said:

The plaintiff did not challenge the general proposition that a highway authority is not liable for mere non-feasance but is liable for misfeasance or malfeasance -

Your Honours will see that at page 363, at the bottom of the page, his Honour adverted to the second aspect that I was mentioning earlier about duty where he said:

If the commission repaired the road negligently in such a way as to create a danger or to add to danger and damage was thereby caused to persons lawfully using the highway the commission became liable for that -

That must be because there was a duty derived from the performance from its conduct ultimately in the performance of the statute. His Honour then, at the bottom of page 364 and the top of page 365, said that he regarded as a correct statement of the law what had been said by Justice Lush in McClelland:

"It is, I think, clear law that when a local authority undertakes and performs a duty, whether they are bound by statute to do so or whether they have an option to perform it or leave it unperformed, however it arises, they are bound to exercise proper and reasonable care in its performance, and that there is no difference in this respect between a public body and a private individual who does an act which if carelessly done may cause injury to others . . . if a duty is undertaken and improperly performed -

And, your Honours will see the remainder of that paragraph. Now, may I say in relation to that, one could apply, in our submission, those words directly to a case such as this where what was done by the Council, one leaves entirely aside the putting of the new planks on the top of the bridge, if one looks at the activity of the Council in carrying out inspections of the bridge, the inspections of the bridge being carried out as part of the performance of its statutory functions, it has, in our submission, entered upon it - entered upon its functions and left them improperly performed.

Your Honours, the other part of the case to which I wish to go was what was said by Justice Fullagar and there are two things to which I wish to refer. At the bottom of page 376 your Honours will see his Honour had set out various steps that had been taken in the development of the nonfeasance notion and he said:

But after Gibson v Mayor of Preston there remained, I think, a fifth step which need not necessarily have been taken but which was in fact taken.

And your Honours will see particularly he said:

By this time it had become a common form of statutory enactment to provide that an authority should have the "care and management" or "care and control" or "control and management" of its highways. Now a duty to repair enforceable by action for damages for omission to repair is one thing. A duty to exercise care in control and management enforceable by action for damages for negligent omission to remove a danger known to exist is another thing. The first rule.....does not of itself exclude liability for negligence in control and management. Negligence can be a characteristic of an omission as well as of an act, and the first rule, as I have stated it, is quite consistent with the existence of a duty to take reasonable care -

et cetera. Now, your Honours, his Honour then went on to deal with the circumstances of that case, which have distinct similarities with the present, through the remainder of that paragraph and said that it seemed very difficult to work out why an action for failure to exercise reasonable care in the management and control of the highway would not succeed, but, as you will see at the commencement of the next paragraph, he said that that:

must, in my opinion, be answered in the negative on the basis of the law.....It is, I think, very curious that this is so.

In our submission, that is correct. Your Honours, if one looks to see why in the case of a road authority the duty is not capable of arising - and if one looks to see the reasoning in any of the judgments dealing with it, it is, in our submission, very difficult to find any identifiable reason for the rule, very difficult, your Honours, to find, as I say, any identifiable reason for the rule, any reason why there should be a distinction between it and other authorities. Your Honours, that was adverted to by Chief Justice Doyle in Wade v Australian Railway Historical Society [2000] SASC and that is in part of the volume my learned friend Mr Morrison gave. Could I refer your Honours to paragraph 137 at page 20 of the pages and your Honours will see in paragraph 137, the last sentence:

No explanation for adopting that interpretation was given nor for taking a different approach to that adopted in respect of other statutory powers.

Your Honours, if one goes also to what was said by Justice Priestley in the New South Wales Court of Appeal in Gloucester Shire Council v McLenaghan [2000] NSWCA 208 paragraph 5 your Honours will see that his Honour said:

The court in Buckle upheld the non-feasance/misfeasance distinction on the basis of a chain of authority.....reaching back to the days of Coke.....The liability was transferred to local authorities by statute -

and then a couple of lines further down:

The relevant decisions were not all consistent and Dixon J exerted his very considerable powers in reconciling the bulk of them and branding an unfortunate few as incorrect and responsible for a departure from principle requiring a process of rehabilitation which proved to be slow -

and he referred to what Justice Fullagar had said in Gorringe and then said:

Dixon J's rationalisation in Buckle of the law as he then saw it seems unpersuasive to many judges today, if the number of cases which this court sees in which trial courts struggle to evade or limit its reach can be taken as a reliable indication.

Now, your Honours, our submission is that the principle, however one describes it, is not really based on the impossibility of deriving a duty, but is something which is - if one likes to call it an immunity, which is a matter of policy. It is a judge-created - I do not mean that in the slightest way offensively, of course, but it is created by an immunity created by decisions of the courts, as is the case of, say, a barrister's immunity from liability in negligence or in relation to proceedings in court.

Now, your Honours, that is one reason, in our submission, why legislatures may well have chosen themselves to do nothing about it, because the source of the immunity is to be found in the common law.

McHUGH J: But the statutes are amended against the background of that common law rule, they were brought into existence. With great respect to Chief Justice Latham, I think he was quite wrong in Buckle when he said that statutes conferring a power but not imposing a duty to repair roads are interpreted as not creating any liability for nonfeasance. That is not correct at all. A statute is just simply part of the statutory framework. It is the common law which says that there is no duty of care in those circumstances. It is not the statute that - - -

MR JACKSON: Well, he is expressing a conclusion, your Honour, with respect. The precisely correct analysis of it may not in the end matter because he was certainly expressing a conclusion. Your Honour would, I think, find similar expressions in, for example, some of Sir Owen Dixon's observations. But if one looks at it today, whether one says that the law says in those circumstances no duty is to be taken to arise, or if the law says be there any duty in the abstract or not, one cannot sue successfully in those circumstances, it probably does not matter. The point we would seek to make about it is that it is a rule which has been developed by the common law.

What I was seeking to say in relation to legislatures was that one does have a situation where it is not surprising that legislatures do legislate against the background of the general law, but one of the features of the general law is that it is inherently capable of change. Your Honours would have seen that - of course, that was one of the reasons why, I think, one provision of the Native Title Act was held to be - one of the underlying things, one of the provisions of the Native Title Act was held to be invalid in Western Australia v The Commonwealth - - -

McHUGH J: Section 12.

MR JACKSON: Yes, section 12, where Parliament sought to legislate, in effect, as to the common law. That puts it badly, but your Honours will appreciate what I mean.

HAYNE J: The duty as you frame it is a duty specific to highway authorities. I understand that is for self-evidently obvious reasons. But is the duty which you posit a duty which would apply to any public body having power?

MR JACKSON: Yes, it would, your Honour, leaving aside questions of specific statutory provisions which might limit liability. But I should say - - -

HAYNE J: What are the integers then that give rise to the duty? It is the existence of power, foreseeability of injury. Is there any other integer that is taken to account in determining duty or no duty?

MR JACKSON: Well, your Honour, the way in which your Honour puts it to me, with respect, does put it, if I may say so, just at a slight level of abstraction, higher than, we would submit, one should look at it, because certainly one speaks of the statute, but one does need to see what the statute is talking about.

McHUGH J: I thought you were saying that once it does something - if it never makes a road then it is under no further obligation; if there is a bush track and somebody is injured, the fact that it did not make a road there is beside the point. Once it makes a road, then it becomes under a continuing duty to keep it in repair, or anything else, whether it be electricity or whatever it is.

MR JACKSON: Your Honour, may I answer your Honour Justice McHugh first and then come back to your Honour Justice Hayne.

HAYNE J: Seniority rules.

MR JACKSON: What I was endeavouring to say was, I was not selecting that the particular requirement that something first had been done.

McHUGH J: No, I thought you were, I am sorry.

MR JACKSON: No, I am sorry. What I was saying was really two things: the first was that if one looked at the cases, what one could see was that, even taking the provisions of the statutes in contemplation there, from those or from the common laws application to them, one could see that some duties were held to exist. The provisions were not just permissive having the result that no duty could arise from them and what I was seeking to say, your Honours, was the cases showed that duties could arise in at least two situations. One was in the case of authorities other than road authorities; the other was, even in relation to road authorities, it had been held that there was a duty when they entered upon performance of some of their functions.

McHUGH J: Yes, but in all those cases, both the road and other authorities, they had done something in performance of their powers and then there was this continuing duty to ensure that what they did, did not become a source of danger.

MR JACKSON: Your Honour, undoubtedly that is so, but the difference might well be - and this I suspect will take me back to your Honour Justice Hayne - in a sense that when one comes to things anterior to doing something or taking something over, then the situation which is likely to obtain is that the only duty that could be derived would be one which was, in a sense, of a public law kind, for example, and when I say, public law, probably public administration, your Honour, in the sense that if a local authority received money to build a road and did not build a road it would be unlikely that there could be private litigation in relation to it, even if a person was injured in travelling over the road that should have been replaced. One must look at the situation there. So, your Honour, I was not really seeking to say that every aspect of the powers would necessarily give rise to an obligation.

Your Honour Justice Hayne was asking, I think, what were the integers that would go to provide for such a duty. What I was seeking to say was that it is not just a question of saying, "Is there a statutory power?" One has to look at what the power is in relation to. That is why, if one goes to the powers that are presently in question, one sees that in the end they are designed to do a number of things. One is no doubt to improve communication. The second is to provide for safe communication. They operate in a context where the persons who use them are likely to be the public. The public will be using them in a number of ways and persons, whether they be drivers of vehicles or passengers in vehicles, old or young, are liable to suffer personal injury if the duties are not performed. So that is the first thing, that one is talking in the area of personal injury and property damage, the areas where, normally speaking, little else is required other than foreseeability for there to be a sufficient relationship to establish the existence of a duty. We would say that one looks at the nature of the subject matter, one sees the existence of the powers, one sees the foreseeability, and that is essentially what creates the duty. The matter of performance of it is a different question.

McHUGH J: On that basis then, there is no reason why you should not sue by way of an action on the case for breach of an implied duty created by the statute. Your argument seems to come perilously close, if not an argument, that it is the statute which creates the duty.

MR JACKSON: No, your Honour, I am not suggesting that at all. Your Honour has said to my learned friend that one has to look at the statute, so one goes to the statute. One sees that it gives various powers and creates some obligations: care, management, control and so on. What we say is that given that statutory framework, there is the availability of remedies under the general law, namely for negligence.

HAYNE J: I wonder whether the language of immunity, that is the language affording a special position to the road authority, may not owe more to the generality of liability in public nuisance for obstruction of highways. If a highway was obstructed and someone suffered special damage by reason of that, the action would lie - a very general liability. But road authorities are in a particular position, and this may well have rolled over into the language of immunity.

MR JACKSON: Well, your Honour, if one talks about public nuisance which really, I suppose, relevantly, is earlier in time than negligence - - -

HAYNE J: Yes, 17th century.

MR JACKSON: Yes, and, your Honour, one had in relation to that the limiting requirement of there being special damage, as it were, for there to be the private right to sue. That really came down to there being suffering, I suppose, of personal injury on the one hand or, on the other hand, some damage to property of a particular kind. Your Honours, it may well be that kind of limitation flowed through, or seeped through, as it were, without there being a very good reason otherwise for its continuation.

I was saying something about why Parliament may not have done anything, or Parliaments may have taken the view that this was a matter for the courts rather than for Parliament. Your Honours, could I just say that our learned friends have urged upon the Court that nothing should happen and this Court should not interfere with the law. Could I say two things about that. The first concerns this Court's function and this Court's function pursuant to Chapter III, including section 73, is to define and clarify the law and, of course, to correct procedural irregularity.

Your Honours, those phrases come from Justice Dawson in Morris v The Queen but they were picked up - and the footnote is referred to - by seven Justices in Carson v John Fairfax & Sons Ltd (1991) 173 CLR 218. Your Honours may not have that, but a particular passage to which I wanted to refer was simply this, that speaking about special leave applications, their Honours said:

To that extent at least, the Court, in exercising its jurisdiction to grant or refuse special leave to appeal, gives greater emphasis to its public role in the evolution of the law than to the private rights or interests of the parties to the litigation.

Footnote (61), which is there referred to, is what was said by Justice Dawson in Morris v The Queen [1987] HCA 50; 163 CLR 454 at page 475, where his Honour said that the tasks of the Court were - I think I may have quoted incorrectly a moment ago - "to develop and clarify the law" and to correct "procedural regularity". So that is what the Court says. If I could refer your Honours to a recent observation by two distinguished Australian lawyers criticising a decision of the Court but reflecting on the Court's functions in that regard - it is by Masel and Kelly, "Contributory Negligence and the Provision of Services: A Critique of Astley", in ALJ 74. Could I give your Honours some copies of that - 74 ALJ 306. The relevant passage is on the second page of the extract at page 316 in the last paragraph on the page and the authors say:

But those old ways of thinking are no longer sufficient. In particular, it is now widely accepted that the role of an ultimate court of appeal includes continued renewal of the common law on the basis of choices often thought of as policy choices rather than legal ones. In recent times, the High Court has made many decisions which are only explicable on that basis. Many of them have involved overriding well-established legal rules on the basis that they are no longer acceptable in modern social and political conditions. While Mabo.....[No 2] and Wik.....stand out, there are many other less spectacular decisions of that type. They include.....Zaluzna.....Waltons Stores (Interstate) Ltd v Maher.....Trident General Insurance Co - - -

KIRBY J: But what do you say is the closest analogy to taking the step that you invite the Court to take in this case?

MR JACKSON: Well, in one sense, Zaluzna. I do not know there is one with particular - Burnie Ports, perhaps. I do not that there is one particularly, but these are simply examples of - - -

KIRBY J: I realise that, but it is said by the interveners that this is a step which you are inviting us to take which, (a), the Parliaments faced by Law Reform Committee reports have not taken, and, (b), have very large financial implications and this really is the sort of concern that I felt, and perhaps others, in Harris v Northern Sandblasting.

MR JACKSON: Well, if one took, for example, the question of occupier's liability. I will just take that by way of example. Now, in relation to that there had been in the various textbooks on tort and related matters numerous discussions about the question of whether the category should or should not remain.

KIRBY J: And there were law reform reports in England, at least.

MR JACKSON: Yes, and in England they have been changed.

KIRBY J: Yes.

MR JACKSON: They have been changed as in this case. They have been changed in England. And, so, it was a question of whether it should or should not remain, and the court the view that it should not remain and the consequence, of course, is that there is a wider range of cases in which there may be potential liability. Now, that is something that - - -

KIRBY J: Potential liability.

MR JACKSON: Yes, potential liability.

GLEESON CJ: Can I take you back to a question that I think related to this that was asked by Justice Hayne. If we took the step that you invite us to take, and I think has emerged from some discussion with Mr Morrison, leaving aside questions of legal or forensic onus of proof, courts dealing with claims in negligence against highway authorities would need to investigate the reasonableness of their conduct which would include matters of resources, priorities and so forth.

MR JACKSON: I accept that, your Honour, as a general proposition.

GLEESON CJ: What I wanted to ask you was this: if a plaintiff framed an action in nuisance would there be any need to investigate considerations of that kind?

MR JACKSON: The answer, your Honour, depends a little on the way in which the cause of action was said to arise, factually.

GLEESON CJ: Presumably, the immunity for nuisance would go with the immunity for negligence, would it not?

MR JACKSON: Yes.

GLEESON CJ: Well, then, why would a plaintiff bother suing a highway authority in negligence and get involved in all those difficult questions about financial considerations and matters of priority? Why would not the plaintiff simply say, "There is an obstruction on the highway and I suffered particular damage"?

MR JACKSON: In many cases that would be the situation now because if there is an obstruction on the highway that is likely to have been caused by - it would very often likely to have been caused by the highway authority. Your Honours will see that referred to in one of the passages I mentioned earlier. So, the number of occasions on which there would be something that would be categorised as a nuisance that would give additional liability would be relatively few. The circumstances where one had something that one would categorise now as a nuisance, but in relation to which there could not be a successful claim against the highway authority, may be relatively few, with respect, your Honour.

McHUGH J: Well, I am not sure about that. The elements of the action are quite different. After all, the gist of nuisance is an unreasonable use and not negligence. Negligence is often used to show that somebody has made an unreasonable use of the activity in which the person was engaged and which has created the nuisance. But negligence as such, so far anyway, is not synonymous with nuisance. Nuisance is a far stricter cause of action than is negligence.

MR JACKSON: I do not disagree with that, your Honour, with respect. The point I am seeking to make is there may not be very many cases that would be nuisance cases if the rule were abolished than is the current situation, so far as road authorities are concerned.

McHUGH J: I would have thought that there was and I would have thought all this - much of the argument about balancing, priorities and so on, might be beside the point. It may never arise.

MR JACKSON: Well, that may be, your Honour.

McHUGH J: One's claim of sue in nuisance.

MR JACKSON: If they are able to sue it, your Honour. What I am seeking to say is if they are able to sue in nuisance - the road authority - the likelihood is that in the ordinary type of case they would be able to sue now because many of the things that amounted to nuisance would be brought about by works being done by the road authority.

McHUGH J: Well, if you are right, it may be, in your case, for example, it would be no answer to an action for nuisance for the authority, or the Council, to say, "We did not have the funds", or "We had allocated our funds differently and it was reasonable to do so". It just would not be an issue.

MR JACKSON: Assuming that to be so, we would say so be it. What we would say about it is that that is so in relation to both individuals and corporations and statutory bodies. The situation which emerges is that it is not an answer in the case of an individual to say "I had no money to do something that I should have done". If we were talking about a bridge on a grazier's property, the grazier could not say, "Well, the sheep did not do too well this year so I could not afford to fix up the bridge". When the concrete truck fell through, your Honour, that would not be much of an answer; no better answer, with respect, when you have a local authority which has access to funds, either by itself taxing or by obtaining funds from the bodies above it.

McHUGH J: But these authorities, for instance, they cannot close the roads, the councils cannot close the roads except temporarily, can they, to do repairs?

MR JACKSON: Well, the position is this: at the time of this accident the Council could have closed the road. Now, so far as - - -

McHUGH J: Permanently?

MR JACKSON: Permanently. So far as the position is concerned under the Roads Act now, it would have to go to the Minister and the Minister could refer it back to the authority. I will give your Honour a reference to the sections in a moment. The Minister may choose, it would have to advertise and so on. But in the end there is a decision to be made by one or the other.

CALLINAN J: Mr Jackson, in Part IX of the Act from which you seek to draw an obligation - is that correct?

MR JACKSON: Well, your Honour, what I said in relation to section 249, I think, was that the Council had the care, control and the management, as well as having the powers given by section 240. There is no reason, in our submission, why, in circumstances where it has the care, control and management, one cannot say, "Well, in appropriate circumstances, that will give rise to a duty".

CALLINAN J: Yes. In a number of other places in that Part, the word "shall" is used in a mandatory sense.

MR JACKSON: Yes, your Honour.

CALLINAN J: So that the Council "shall have the care, control and management" is not the same - - -

MR JACKSON: Your Honour will see "shall" in the opening - - -

CALLINAN J: I am sorry?

MR JACKSON: In the opening words of 249 in fact, "shall" is used in one place, "may" in another.

CALLINAN J: Yes, exactly.

MR JACKSON: It is a little difficult to take that too far because one could probably say it means "the Council is to have".

CALLINAN J: It is quite different legislation from the legislation in Crimmins though, is it not, where I think some members of the Court - I certainly was prepared to infer a duty from a statement of functions but, if it had not been for those functions or treating those functions as in the nature of duties, the scheme that the Act put in place would not have been able to be operated at all or given effect to at all, whereas by contrast a local authority can function with some roads in a state of better repair than others.

MR JACKSON: Yes, your Honour, and there are local authorities and local authorities. If one took, for example, the one that is the respondent in this case, it comes from a well-known large area with military encampments on the one hand, wine and electricity, coal - - -

CALLINAN J: There is another illogicality about it too. On one view it might be harsh to regard a local authority as being liable for misfeasance by reason of its actually undertaking some work because it might be a better and more effective deployment or perhaps the only means by which a local authority can keep any semblance of repair throughout the shire or the municipality. In other words, bandaid solutions in a number of places may be in their judgment a better solution than making perhaps one thing entirely safe.

MR JACKSON: Sometimes that could be so. Of course, bandaid solutions can end up with people who need rather more than a bandaid when they are injured.

CALLINAN J: That is all they can afford and they have to distribute their funds with a measure of perhaps fairness throughout the rate-paying community too. That may be a relevant consideration.

MR JACKSON: No doubt what your Honour is putting to me has its political aspects. No doubt members of a local authority, be it large or be it small, want to keep the rates as low as they can and - - -

GUMMOW J: We are not just talking about rates though.

MR JACKSON: No, your Honour.

GUMMOW J: Federal money finds its way down.

MR JACKSON: Yes, I know. One is not just talking about that. There is the State money and there is federal money.

GUMMOW J: In tied in untied grants.

MR JACKSON: Yes, your Honour. I am going to come to that in a moment if I may. Could I turn then to what, in our submission, are some unsatisfactory aspects of the present rule. I do not intend to go into these in detail. One of them is the aspect to which I have already adverted. That is the two capacity question. That, in our submission, is a very, very curious thing indeed.

The second thing is the question of definition of what is the road. That may involve the making of somewhat fine distinctions. The third aspect is the artificial structure qualification referred to in Buckle at pages 269 to 271, the exact status of it not being entirely clear.

The fourth aspect is that the rule does not protect other authorities who are not road authorities, but do have an interest in the roads. Your Honours have seen people digging up roads for all sorts of purposes, many times, sometimes the same place twice, in a short time. Your Honours see Buckle page 271, paragraph 5 of what was said by Chief Justice Latham.

Then your Honours, the next thing is that the immunity does not exist if the body is acting as a traffic authority rather than as a road authority. Could I give your Honours a recent reference to that in the Gloucester Shire Council Case. I have given your Honours the reference already but if your Honours go to paragraph 72 in the principal reasons for judgment of Acting Justice Davies, his Honour said in the third line of that paragraph:

it appears to me that there is a fundamental difference in nature between the exercise of a power to erect advisory signs and the exercise of a power to erect signs having mandatory effect. The former signs appear to me to be related to and incidental to a road making and road maintenance function, the latter to the function of a traffic authority. Accordingly, I proceed on the basis that the issue of the erection of advisory signs of the nature here in question must be considered in accordance with the misfeasance/non-feasance rule which applies to road authorities.

CALLINAN J: Where does the expression "traffic authority" come from? Is it in a statute?

MR JACKSON: No, your Honour. It comes, I think, from the passage in the reasons of Justice Dixon in Buckle, your Honour, at the bottom of page 288/289 57 CLR, where he was referring to Skilton v Epsom and Ewell UDC and then in the fifth line on page 289. The words "traffic authority" are not used, but:

The Court of Appeal decided that the studs were inserted for the purpose of traffic control under the road traffic legislation and not in the exercise of any powers for the maintenance of highways.

I think the "traffic authority" words is a later description of the same thing.

CALLINAN J: Roads are for traffic; that does not seem to be a due distinction, with respect; it is very logical.

MR JACKSON: One of the points we would seek to make is that the area has given rise to distinctions which are rather fine. Could I also refer your Honours to a summary by the Law Reform Commission of Western Australia in its report which is part of the materials we have given your Honours. That should be the document after the New South Wales' statutes, and the paragraphs of that report - - -

GLEESON CJ: It is the same as the one attached to the materials provided by the intervener, the Attorney-General for Western Australia, is it?

MR JACKSON: I think it is, your Honour, yes.

GLEESON CJ: Yes.

MR JACKSON: Yes. I want to refer to paragraphs 6.12 to 6.14 and one sees, your Honours, if one looks at paragraph 6.12, a comparison by members of that Commission of two cases, Tickle, which is a case like this, and Culcairn Shire Council v Kirk and your Honours will see the two cases compared and then the observations made by the Commission in paragraph 6.13 and 6.14, dealing, of course, with the nonfeasance/misfeasance distinction and then there is a discussion immediately following of the merits of that distinction to which we would refer your Honours. Your Honours, I should also say that the members of the Commission who gave that report appear on its last page I think and they include, again, some distinguished lawyers.

GLEESON CJ: How long do you think you will require, Mr Jackson?

MR JACKSON: Your Honour, I expect to be about half an hour.

GLEESON CJ: It looks as though the interveners may have to be content with their written submissions as was foreshadowed yesterday. Yes.

MR JACKSON: Thank you, your Honour. Your Honour, could I come to the suggested difficulties. The first is the question of funding; where will the funds come from? Now, your Honours, one can say several things about it. The first, I suppose, is to adopt the approach referred to in the respondent's submissions in our case: "We will all be ruined" said Hanrahan, and, your Honours, that is what, in our submission, that amounts to. The fact of the matter, however, is that when the situation has been examined the question of additional costs has not been found to be very persuasive.

Could I go back for just one moment to the Western Australian Law Reform Commission Report and to paragraphs 7.11 through to 7.21 of it. Now, your Honours will see in 7.11 they identify the ways in which there may be additional costs. In paragraph 7.12 they refer - and if one bears in mind, of course, that Western Australia, a very large State, parts of it very sparsely populated indeed, and really in a sense what might be for much of it, one would think, perhaps the worst case. Your Honours will see then in 7.12 they refer to the position in Western Australia and then conclude by saying:

as explained below, there are good reasons for believing that reform would not prove to be unreasonably expensive for them.

Then, your Honours, they discuss the various headings.

GLEESON CJ: This report is 20-years old. Was anything ever done about it?

MR JACKSON: It was not enacted, your Honour, no. Then there is the payment of insurance premiums, 7.15, and your Honours will see, in particular, about halfway through paragraph 7.15 at that time it was said:

This sum -

and, they are the premiums -

represents less than one tenth of one percent of the annual receipts of those authorities.

They refers in 7.16 to "public liability insurance" and when one works through to 7.18 arrive at the conclusion, having spoken to the:

State Government Insurance Office who said that he would expect premiums ". . . to more than double -

they say in - - -

GLEESON CJ: Mr Jackson, I am just not sure what we are to make of this material. Are we to exercise some kind of independent judgment in relation to this? Are we to say, "Well, we agree with that" or, "We disagree with that"?

MR JACKSON: Well, your Honour, what we would say about it is that what has been put before the Court, particularly by the interveners and by our learned friends, the respondents, is to say this would be very expensive, and they say, "One reason why the Court should not change the rule is that to do so would bring about these costs". Now, on occasions, the Court has taken into consideration matters of that kind in determining whether or not, or has referred to the lack of information of that kind when dealing with proposals that cases should be overruled.

All we are seeking to say is in response to the proposition that this will be a matter of great difficulty that those who have investigated it have taken a different view and the proposition that it would be so expensive is by no means self-evident. All I was going to say about it now was that at 7.18 one sees that it said if the premiums doubled then it would still be only:

two tenths of one percent of the annual revenue of their annual revenue -

We would refer your Honours through to paragraph 7.21, as well.

In New South Wales, although it is true that what was in mind was something that might end up with a scheme one sees in paragraphs 4.8 to 4.9 of that report that the Commissioners remained unconvinced that there will be excessive costs and your Honours will see paragraphs 4.8 and 4.9 at pages 58 and 59.

GLEESON CJ: I did not understand the interveners to be saying the High Court should decide that it would be inappropriately expensive to abandon this rule so the rule should be retained. I thought that what they were saying was, "The question whether the rule should be abandoned or retained involves complex considerations of matters of finance, so it should be left to Parliament to decide whether the rule should be abandoned".

MR JACKSON: That, with respect, we would submit, puts a level of sophistication upon the submission but is not the only thing that one finds in them. One finds that result contended for but the opening of the floodgate is certainly mentioned and one sees, for example, in the New South Wales' submissions it is said that no provision has been made, for example, for dealing with matters of this kind, and those sorts of things. And, if one looks at what is said on behalf of the respondent, it is put in the strongest terms that there is no money, the poor old ratepayers will have to cough up.

The last thing I was going to say about this so far, generally speaking, is that in British Colombia the Law Reform Commission of that province considered the question in its report at pages 17 and 18 and your Honours will see under the heading, "The Desirability of Reform" on page 17, the last three paragraphs. They referred to the fact that municipalities, most of them had expressed concern about increased economic burden. Some suggested that there would be "economic disaster". They referred to the increasing levels of damages and then the Commissioners said they had:

made inquiries of the insurance industry -

and they got:

little by way of useful response. We also made some inquiries in other Provinces concerning experience with legislation comparable to that which was suggested in our working paper and long since in force in those Provinces. While those inquiries were neither complete nor exhaustive, the answers that we received emboldened us to conclude that both insurance costs and claims experience have not resulted in an intolerable situation. No municipal authority that we have contacted has found its burden of highway maintenance and repairs, or its claims settlement liability, or insurance costs, in any way intolerable.

It goes on for several further paragraphs. Your Honours, they refer also in the penultimate paragraph on page 18 to the fact that the existence of immunity was socially undesirable. If I could take your Honours from those reports to the present position which is summarised in the New South Wales Government material. I wanted to refer your Honours - it is the volume of materials, your Honours, that has come - I do not want to take your Honours to very much of it but, in particular, to pages 18 to 24. About halfway through the "Introduction", 1.1 - or immediately above 1.2:

The RTA has an annual budget of approximately $2b of which the maintenance program for 1998/99 was $674.5m.

Your Honours will see the reference to "Commonwealth funding", "State Funded Roads", then, your Honours, if I could just put it very shortly, if one goes then to page 21, the penultimate paragraph on the main text shows where the funds for road maintenance come from. At the top of page 22, your Honours, second paragraph, "A portion" of the "(untied) Grants" from the Commonwealth "is used on State Funded Roads". Your Honours will see then at page 24 in the penultimate paragraph:

Untied grants.....for Local Roads are provided through the Local Government Grants Commission.....Local Government may use these funds for any purposes it wishes, including road maintenance.

A summary of the responsibilities is in the table on the next page. Now, your Honours, that is dealing with the general position. If one comes to the particular case, there are - I am sorry, I should just say one other thing. If one comes to the question of allocation of resources, the fact of the matter, in our submission, is that the need to consider allocation of resources to particular tasks applies all the time to local and other authorities. There are always programmes, your Honours, for maintenance. There will always have to be provision made for urgent works when the dictates of safety so require.

Your Honours, that is not different from any other form of negligence case against a public authority. Your Honours, the realities involved, once one leaves the abstract position and goes to the particular case, the realities can readily be seen. Now, your Honours, this is a case where the nonfeasance issue had been very clearly raised. Your Honours will see it referred to by the primary judge at page 198, paragraph 11, where he said in the second sentence:

The defense of the Council is essentially a legal one. Councils cannot be liable for non feasance in relation to highways.

Your Honours will see from our reply in the proceedings, which was attached to our submissions in reply, that we had raised the question of the availability of nonfeasance - - -

KIRBY J: Which page are you reading, I am sorry, which page?

MR JACKSON: I am sorry, your Honour, I was reading from page 198, paragraph 11. That was the first thing, your Honour, the second sentence particularly. So that was the issue and the question of the availability of the nonfeasance defence was in issue. It was made apparent from our reply, which is not included in the book, but is attached to our submissions in reply.

GAUDRON J: Just stopping there, I am just reading it a little more carefully. This was a 22-tonne truck fully loaded.

MR JACKSON: Yes, your Honour.

GAUDRON J: And Mr Brand gave evidence that the load limit with solid timber girders was between 10.6 and 13.5 tonne and the load limit with the rotted ones - you would have been exceeding it even then, would you not?

MR JACKSON: That is right, your Honour, yes.

GAUDRON J: What do you say is the precise content of the duty of care that was owed to you?

MR JACKSON: The duty of care was to keep the bridge in the particular case repaired. I am sorry, I am putting that badly. What I am seeking to say is - is your Honour asking me about what should have been done in the particular case?

GAUDRON J: It would not have helped you on causation, would it? If the load limit, according to the engineering evidence, with solid timber girders was 10.6 and you are driving a 22-tonne truck, why should I assume you would not fall in the river just the same if it had been properly repaired? Your duty has to be to put up signs or something.

MR JACKSON: Because other vehicles the same as us had been going over it and we were taking concrete to a dam that was being constructed and was simply one of a number of vehicles of doing it. No doubt he said the load limit with solid timber should be that, but it obviously had a capacity to take more.

CALLINAN J: Within a few months before, I think it had been tested for a 20-tonne load and that load had safely passed across it. That was in a Council memorandum.

HAYNE J: That was page 198, 14.4.

MR JACKSON: Yes, your Honour, 1991, the previous year. It was inspected for that purpose and the crossing did take place. But of course, this is a case where, without going into the facts in detail, the judge found that there was negligence in the particular circumstances.

CALLINAN J: Mr Jackson, the Court of Appeal took an entirely different view of the facts. The Court of Appeal said on a proper analysis that those findings were not justified.

MR JACKSON: Your Honour, that is not, with respect, quite right. Could I say two things about it. The Court of Appeal correctly said that some of the notations as to work done on the bridge that appeared in the ganger's notebook were not established as having occurred on a particular day, so that was wrong.

CALLINAN J: I thought it went a bit further than that. I thought Justice Powell decided that it was impossible to say when repairs had been effected. Am I wrong about that?

MR JACKSON: The position was that only some of those dates could not be established. The 1991 ones were.

CALLINAN J: Where do I find that in the Court of Appeal judgment? I must say I had a different impression, so I would be pleased if you give me that.

MR JACKSON: Could I just give your Honour a reference to that in a moment; I will just have it found.

CALLINAN J: Let me draw your attention to page 243 line 37:

At best, the evidence, insofar as it was relevant, demonstrated that, from time to time over the years, the Council replaced decking boards which appeared to require replacement.

There is no reference to a date it seems, Mr Jackson.

MR JACKSON: Your Honour, that is because, what he was speaking of was the document which commences at page 141, a summary of what the diary records of the Council employee, the bridge gang, were said to show. You will see numbers (iii) and (iv) referring to 1991 and the documents that follow, page 142, 143, 144 are made on a 1986 diary, but one sees, in particular, at pages 144 and 145, in each case the actual date being written in "Forresters Bridge 4/2/91" and then what has taken place on 23 July 1991.

Now, it is right to say, your Honours, that there was not evidence that "the bridge had become impassable", that is as his Honour said, at page 243, but the evidence demonstrated, and this was the unchallenged evidence, that it was perfectly possible to find the state of the bridge by carrying out the normal maintenance and it should have been found out.

CALLINAN J: I am sorry, Mr Jackson, it is my fault. Which page do you say demonstrates or indicates the last repair before the accident, which you say justified the trial judge's finding - that is what I would like my attention drawn to.

MR JACKSON: Your Honour, the clearest example is page 144, because it is plain from that that it is speaking about 4 February 1991. We would say 23 July, page 145 supports that, however, I suppose it is possible to regard the date, 23 July 1991, at the top of that page, as perhaps referring only to Brosis Bridge, but your Honour would appreciate no evidence was called from the council in the matter.

Your Honours, what I was going to say was that the respondent adduced no evidence to demonstrate any difficulty with allocation of priorities. The evidence which we adduced of the Council's practices showed no such difficulty. If your Honours would go to page 153, a letter from the Council the year after the accident, which showed that there was a system of inspection in being. The Council was exercising its powers. Paragraph 1:

All timber bridges in the Shire are usually inspected by Council's Bridge Gang about four times per year.

And your Honours will see in paragraph 3:

Inspections on this particular bridge would include a visual appraisal of all timber components and the abutments. Any minor components.....would be replaced.

Any failure of major components such as girders or corbels which meant temporary closure of the bridge to carry out the repairs would be reported to Manager Works.

Paragraph 4:

Major component failures were easily recognised by crushing, breaks or fractures -

et cetera, and then, paragraph 5:

Council was aware of the pipes in the girders but were satisfied that the 15 tonne load limit on the road -

which in fact was a sign for an earlier bridge -

would protect the bridge from repetitive loading and failure.

CALLINAN J: Mr Jackson, I am sorry to come back to this but if you look at page 222 you will see that Justice Powell quotes something that the primary judge said, including "these works were carried out", and the last date is July 1991. Then his Honour Justice Powell goes on:

which appear to have been tendered on behalf of the Respondents to show the nature and extent of work carried out on the bridge, do not support his Honour's assertions as to these matters.

So that seems to be a finding by the Court of Appeal to the contrary of the finding by the primary judge that the last occasion of the work was July 1991, which I would have thought is a fairly critical finding for you.

MR JACKSON: Well, could I just say that it really would be very, very difficult. His Honour expressed the views that are set out there. I do not think, in fact, he deals specifically with the situation in relation to the 1991 entry, or entries, which have a date written on them. This is a ganger's diary; he had written on them Forresters Bridge and date and that some work has been carried out. It is very, very difficult to take the view that, in respect of at least those 1991 ones, that there was something wrong with it.

CALLINAN J: Justice Powell obviously did.

MR JACKSON: Well, he is wrong.

CALLINAN J: You will have to confront that, do you not? You have to say that his Honour was wrong, that he should have read pages 144 and 145 in the way in which the primary judge did.

MR JACKSON: Yes, we do say that and we say this is a pure matter, that that was the evidence, there was no other evidence to contradict it and he should have - it is difficult to see why his Honour took that view. But, it was not the only evidence because the page to which I was just referring your Honours, page 153 showed that the bridges were usually inspected about four times a year and they were aware of there being pipes in the girders at the time, but they took a particular view.

CALLINAN J: They were aware but it does not say that they repaired them, does it?

MR JACKSON: No, your Honour, I am sorry; what I was going to say was what they could have - because your Honour will see in paragraph 3, one treats them as being "major components such as girders", then all that had to happen was the bridge would be temporarily closed and they tell the manager for works and no doubt in due course the work is done. I was dealing with it on the question of what was reasonable or not reasonable to do.

CALLINAN J: Impliedly Justice Powell would have rejected the expert evidence that was given for your client at the trial too.

MR JACKSON: Your Honour, it is very, very difficult to see how he could have done that with any propriety because the evidence that was given was from a man of very considerable expertise. The cross-examination did not, in any relevant respect, affect anything he said, and there was no other evidence.

CALLINAN J: That view seemed to be founded upon his reliance upon what the Court of Appeal or Mr Justice Powell's thought were unreliable diary entries.

MR JACKSON: Well, your Honour, he had made a visual appraisal of the bridge himself and said that these appear to be - - -

CALLINAN J: Yes. Well, some looked fresher than others, some planks were not quite as discoloured as others, I think.

MR JACKSON: Yes. Your Honour, when I say inspected the bridge, inspected the bridge in its remains.

CALLINAN J: The remnants of the bridge.

MR JACKSON: The remnants. You can see the photographs of it, your Honour, in the book. Your Honours, the second thing is that there was the Main Roads Department manual in evidence which showed no great problem, indeed, quite established procedures for inspecting bridges of this kind. You will see that, your Honours, commencing at page 154, and may I refer your Honours very quickly to what is the most relevant parts of it. The first paragraph on page 154:

The Divisional Engineer will instruct the bridge maintenance foreman as to the bridges with which he is concerned.

Under the heading "REGULAR INSPECTION", the first paragraph of that, dealing with, amongst other things, timber bridges. Then your Honours will see in the next paragraph carrying out of "minor repairs" at the time. You will see a heading on page 155 "ROUTINE MAINTENANCE" and two-thirds of the way down the page a reference to "Timber Bridges" and then the last two items on that page "Deck planks" and "Girders". Page 156, your Honours, the heading "SPECIAL REPAIR WORKS" and there is a reference to the "Programme of repair work" under "General" and a special heading "Timber Bridges" and it goes on - I am sorry, your Honour.

CALLINAN J: I was going to ask you, let me accept for present purposes that what you have said about all of this is right, and this is to the end that you had a case in misfeasance as well as nonfeasance; is that right or in the alternative?

MR JACKSON: Well, your Honour, I am really doing two things in a sense. One is to say that the argument against us is that this is a difficult task, you will have to look at allocation of - and we say, look, there were very, very simple procedures that were in being, both for main roads, both for council roads, and there was no difficulty with any of it and it is all pretty ordinary stuff. That is the first thing. The second thing is, your Honours, that we would say in any event - - -

CALLINAN J: This was misfeasance.

MR JACKSON: Well, your Honour, I would say in any event if nonfeasance goes, there was a case in negligence; otherwise in the end it is a case of misfeasance properly understood.

CALLINAN J: Well, that is what I want to know. I want to know what is the act or what are the acts of misfeasance?

MR JACKSON: The acts of misfeasance, your Honour, would essentially be one or both of two. The first is to cover the bridge with new planking, put new planking on the bridge, in circumstances where the bridge underneath was not safe. That is the first thing. The second thing, your Honours, is to carry out the inspections negligently, negligently in the sense of not appreciating that the bridge was so rotten underneath in its girders, on the one hand, and, on the other hand, to take no action being no action by way of signposting or anything of that kind, being aware of that. Now, it is one or both of those.

Now, your Honour, as to the second of those, our submission is that that is a matter which would be within the existing principles as to misfeasance. The first would be too, in our submission, but the Court of Appeal took a very narrow view on that issue. They treated the case of pure nonfeasance.

CALLINAN J: You say that your second particular in misfeasance is a clearer and stronger one than your first one.

MR JACKSON: Well, your Honour, the position in relation to it is that it depends itself on a definition of what is nonfeasance - where the boundary is between nonfeasance and misfeasance. If the true nature of nonfeasance is simply not to do anything - - -

CALLINAN J: Can you give me a definition of "misfeasance" for the purposes of your alternative case in misfeasance, in such a way as to embrace the two particulars that you have given. What is your definition?

MR JACKSON: What we would say is that "misfeasance" occurs where the Council exercises its powers in relation to the bridge and does so negligently. That picks up a passage I was referring to earlier from Justice Dixon in Buckle.

I was going to refer to the method of testing of timber bridges by boring, referred to at pages 157 and 158, at the bottom of page 158 to the ordering of timber and 159, to the matters under the heading "Replacement of Girders". Those are the matters to which I wish to refer there. The point I would make about it is this is all pretty ordinary stuff. One sees also at pages 186 and 187 there is a reference to the fact that the Council had a bridge grading list and, at page 187 this bridge was graded 6 in 1978 and there is a handwritten note that will tell your Honours that after the accident, it was then graded 10.

So, your Honours, the point we would seek to make about it is that there is really nothing very dramatic or difficult in the circumstances in dealing with cases of this kind.

GAUDRON J: Did you plead a duty to put a notice up on the bridge, or only to repair it?

MR JACKSON: Your Honour, if one goes to the statement of claim, you will see at paragraph 6b on page 4:

a failure to properly provide any or any adequate load limit warning sign at the said bridge - - -

GLEESON CJ: To get on to this bridge your client had to cross an earlier bridge that had a load limit that was less than the load that your client was carrying and that your client did not see.

MR JACKSON: Could I say in relation to that that there was a contention of contributory negligence against us. His evidence was he did not see it. The reason he was not able to identify it perhaps it was one of the trucks coming back. But in relation to it, the primary judge found no contributory negligence. Your Honours will see in the materials there is no contention against us in that regard.

GAUDRON J: But what was his evidence about a sign, that he would have taken, if he had seen the sign - and were there credit findings about having not seen the other sign, because I mean it would be hard to infer that this man would have stopped if there had been a sign if he, in fact, drove over a bridge when he had seen a sign.

MR JACKSON: I am sorry, I think it is around page - - -

GAUDRON J: Perhaps you could come back to it in reply or have a note made of it.

MR JACKSON: He said he did not see it, at page 56 about lines 30 to 35. The primary judge's findings on this issue, your Honours - - -

GLEESON CJ: I think Mr McAlary had in mind page 66 lines 35 to 40.

McHUGH J: Yes, the Boral drivers with their 28-tonne trucks, they just ignored the signs. They just went straight past them.

MR JACKSON: Yes. Your Honours, what I was going to say was this. The primary judge had the opportunity to see the applicant giving evidence and one would see his findings at pages 203 and 204. I think the bottom of page 626 is the relevant part he referred to.

GLEESON CJ: Thank you, Mr Jackson. Yes, Mr McAlary.

MR McALARY: Let me just start with the matters that my learned friend has been dealing with. The way this case was pleaded is to be found at page 4 of the application book to which my friend took the Court a moment ago. The allegation there is that the "accident was caused by the negligence of the First Defendant". That set up a simple common law duty of care. If you go to the preceding paragraph, your Honours will see that:

Whilst driving on the said bridge it collapsed beneath the truck then being driven by the First Plaintiff causing it to fall approximately ten metres.

It was not in dispute that the sequence of events was that the girders underneath the bridge which supported the decking were pitted and it was the girders that collapsed. When the girders collapsed the decking collapsed. When the decking collapsed the truck collapsed. Now, that was the common law duty of care that my friend sought to set up in the case that he made. We took the position, as I understand my juniors, that there was no causal connection in a physical causal sense between the loss suffered by the plaintiff and our failure to repair the girders. Our failure to repair the girders was protected by the immunity rule and if the immunity rule stood, then our failure to repair the girders had not caused this damage which he suffered.

GAUDRON J: That is a funny use of the word "cause", is it not? I mean, there may be no duty of care but - - -

MR McALARY: I am coming just to this as a matter of - question of causation to start with because my friend did not seek to make a case that the steps that we took in relation to the planking had induced a misleading situation in the plaintiff as he drove towards the bridge. That seems to me to be a very bright idea that counsel conceived some time after the evidence was given. If you read carefully the evidence given in-chief, the only evidence that is given is that the plaintiff was driving towards this bridge, as he approached it - before he came to the first bridge, he saw one of the precedent trucks returning, the truck driven by the man, Scutt.

As he approached the second bridge, that is the one that ultimately collapsed, a second truck was seen returning. That is the truck driven by the lady - I have forgotten her name - Julie, I think it was. So those two trucks had been over this bridge and come back. He then proceeded down on to the bridge. He did not identify that there was anything in connection with the planking which would have induced him to think that the bridge was safe and secure. There was no attempt to suggest at that stage, through his evidence, that he was in any way misled. The concept of entrapment arises at a later point.

KIRBY J: But when you approach a bridge you normally do infer that it is going to be reasonably safe.

MR McALARY: Yes, I think - well, he says that he had inferred that because the other trucks went over it, he could go over it, and the passage that I was going to offer to my learned friend in relation to his view is in the application book at page 55. If you could take one to line 30:

Q. The three trucks that you knew had gone out to the dam from the Pioneer depot - - -

GLEESON CJ: This is page 66 of the application book.

MR McALARY: I am sorry, your Honours.

GLEESON CJ: You are looking at the transcript page number.

MR McALARY: Yes, sorry. I was using the transcript page:

Q. The three trucks that you knew had gone out to the dam from the Pioneer depot before you that morning were all the same size as your truck weren't they?

A. Yes.

Q. So they were all about 21 tons?

A. Yes.

Q. You would assume wouldn't you that all the Boral drivers and all the drivers in front of you would have seen the 15 ton load sign wouldn't you?

A. I suppose so, yes.

Q. And they all ignored it if they saw it?

A. Probably yes.

Q. And you would have ignored it if you'd seen it wouldn't you?

A. In that context that I went out after all those trucks probably. But if it had been a spec one off job and I'd been the only one that had gone out I probably wouldn't have.

Q. But the answer on what you know about the number of trucks that had been over there before you it has to be yes doesn't it?

A. Yes.

So although he himself did not see the load limit on the precedent bridge, he says, in view of the fact that these other trucks had gone over it and some of them had come back, he would have ignored it. So much for the value of warning signs.

The way this case was conducted, as I understand it, fortunately not being at the trial, was that it was fought on the basis of the immunity, so that if the immunity was present, then the physical cause of the collapse of the bridge was the girders and the immunity protected the failure to keep the girders in proper repair. Subsequently, an attempt was made to suggest that there was some form of entrapment and that gave rise to the issues that were dealt with in the Court of Appeal. That is about all I wish to say about that aspect of the matter.

KIRBY J: So that really does indicate that the case tenders very clearly the immunity issue? That is how you fought the case?

MR McALARY: What I was seeking to do, your Honour, was to suggest, with respect, that this case tendered one issue and one issue only and indeed, as I understood it, it was on that basis that it was elected as an appropriate vehicle for a determination of this point and the only issue tendered was the immunity issue and I have been seeking to say that the attempt to widen the issue was an issue that came up in the Court of Appeal; it was firmly rejected by Justice Powell sitting in that court. In my submission, it cannot be re-run in this Court satisfactorily; the issue is simply the immunity issue.

CALLINAN J: So, Mr McAlary, you say that there is no alternative case that we can entertain of misfeasance, is that right?

MR McALARY: That is right. I say there is no alternative case of misfeasance. This is simply a case of whether the immunity stands or does not stand, because if you - - -

CALLINAN J: In other words, Mr Jackson or whoever appeared for the plaintiff, did not at any time assert that this was misfeasance and it was a case of nonfeasance and that he was entitled to recover for nonfeasance, is that - - -

MR McALARY: That is right. Your Honour, the best way I think, with respect, to deal with this sort of issue, because I find at the moment you start talking about what people remember and understand that one runs into conflicts, is to simply look at the evidence, because it is in the evidence that one can see what the case is. The case depends upon the evidence, it does not depend upon what Council wish to say about it later. The evidence starts at page 20 of the application book.

KIRBY J: The particulars of negligence in the amended statement of claim, at 7, do include failing to warn and weight was in excess, and they were amended apparently, and it would be a pretty standard sort of thing to put in a trial, failure to warn, but you say, in fact, that is not how they ran it.

MR McALARY: Well, may I just take your Honour to - the issue about the warning I have already directed your Honours' attention to the evidence on that. The way the case was presented in-chief can be picked up between pages 20 and 25. At line 50:

You told us that you anticipated that there would be four trucks going. Four trucks did set out for the Glennies Creek Dam is that right?

A. That's correct.

Then, over the page, 21, at line 6:

you were the last of the four to head out to the dam, is that right?

And then you find the first is driven by Ken Scutt, the second by Julie Martin and third by a Mr Keaton.

GLEESON CJ: I hope this highlighter does not highlight the important parts of the evidence - - -

MR McALARY: Let me add one question, your Honour, it does. Once you go to 25 - - -

GLEESON CJ: - - -because it is rendered as unintelligible.

MR McALARY: I will take you over immediately to page 23.

Prior to crossing this first bridge, had any concrete truck passed you coming back?

A. Yes.

That was Scutt.

We just waved to each other.

Then, over the page, the next page at 24:

You crossed the first bridge, did you have any trouble -

with:

that first bridge?

A. No.

Q. And as you proceeded along the road were you passed by another -

one - that is a -

Truck coming in the opposite direction.

A. Yes.

Julie Martin was driving that:

she waved.

Just a salutation?

Then at line 35:

Are there lots of wooden bridges in Singleton?

A. Yes there are.

Q. As you were driving towards what you now know as the second bridge, the one that collapsed, did you hear anything on the radio?

You heard something about it being rickety.

Did you pay any attention to that?

A. Not overly, no.

Q. Why not?

A. Well -

That is missing.

Did you drive towards what became the bridge that collapsed?

That is the last question at line 50. Over the page, 25. He describes going down to a lower level.

Correct.

Now, the really critical question is at line 20 and the question is almost missing because of the - - -

GAUDRON J:

How fast were you going as you approached - - -

MR McALARY:

How fast were you going as you approached the bridge?

A. Only slow, ten to 15 kilometres an hour.

Q. And the bridge itself, was there room for traffic - was there room for a concrete truck and another vehicle to pass on the bridge?

A. No.

Q. And did you slow as you approached the bridge?

I think the answer is "Yes" but I am going to have to check that. But, the next one:

As you got on to the bridge, what happened?

A. As I got on to the bridge I heard it crack. And the truck - - -

HAYNE J:

started to fall to the right - - -

MR McALARY:

- - -started to fall to the right -

yes.

GAUDRON J:

to the right and then the whole bridge gave way and collapsed in to the creek bed.

MR McALARY: Yes, that is it. Now, your Honour, there is no further evidence about how this accident happened than that.

McHUGH J: I know, but the fact is that by the time the addresses came the plaintiff made a claim of misfeasance. If you look - the plaintiff's written submissions in the District Court as set out at page 188 and following. It is headed, "Submissions on the non-feasance misfeasance question" and at 194, line 30, the plaintiff sets out a quotation from Justice Samuel's judgment in Hill, "is guilty of actionable misfeasance and then the plaintiff said:

It is submitted with respect that this last quoted passage from Samuel JA in Hill is directly on point here.

And, when you go over to 195 the plaintiff again says - clarifies Justice Samuel:

once the Council had committed itself -

et cetera, et cetera. So, they did make a case - - -

MR McALARY: Let me take an issue with you on this, you cannot make out a case of misfeasance which is not based upon the physical consequences of the act of misfeasance but which is said to be based upon a misleading of the plaintiff.

McHUGH J: Well, that may be in that sense, but that was not the case they were making. If you look at page 195 and the way they make their case in misfeasance is, they say, at line 10:

To put it another way, and to paraphrase the words of Samuel JA, once the Council had committed itself to active maintenance of the bridge to make it trafficable its obligation was to do that with due care and skill to ensure that the bridge was in fact trafficable.

MR McALARY: That, with respect, really is a case directed to the nonfeasance issue that we were putting up. They were seeking to avoid - this issue sought to avoid the issue that I have just been discussing. What it was seeking to do was to claim that our failure to deal with the girders was a misfeasance.

McHUGH J: Well, Mr McAlary, if you look at line 22 you will see:

reinforces the proposition that the Council's positive obligation was to warn motorists of the weight limit of the bridge, particularly given the rating ascribed to it -

So it seems to have gone beyond the girders.

MR McALARY: Well, your Honour, I would then be simply seeking to say that the case, if it was said that this was the misfeasance, this misfeasance would have had to cause the loss, and the loss came from the physical collapse of the girders. Unless the physical collapse of the girders can be impeached, then the case in misfeasance on this basis cannot succeed. Perhaps I could give what your Honour put to me some thought overnight and I will see if I can make a better answer tomorrow morning.

May I just tell you what I was proposing to do so that you will appreciate where we wish to go in this matter. What I would want to do was to look shortly at the authorities which have been much discussed and upon which my friend relies to suggest that the developing law of negligence in this Court has somehow picked up this immunity rule and should now lead to its abolition.

The authorities that have been referred to are of different types. The first two that I refer to are the decision in Nagle and the decision in - - -

McHUGH J: Romeo.

MR McALARY: Romeo. I am sorry; I have difficulty nowadays being able to remember names.

HAYNE J: .....similar facts, Mr McAlary.

MR McALARY: Advancing years seem to prevent me remembering some things. But those two cases are both cases involving the occupier of lands liabilities and they fit into Schiller v Mulgrave Shire Council, and they also fit into the decision in Aiken v Kingborough. They really provide no significant assistance in relation to this case. Nor does the decision in Perre v Apand, which deals with the relationship between private individuals, provide any assistance.

The one case I think that does provide assistance is Pyrenees, and it is a question of looking at Pyrenees to see how far and what one can get from it. I would accept that currently there seems to be no clearly accepted generalised principle upon which a duty of care can be said to be founded. Different approaches seem to flow from the views taken by different justices in different cases.

So, I wish to say something about Pyrenees, and basically I would wish to say that in Pyrenees what one found was a legislative scheme which was directed to giving protection to the members of the town in which the building stood. It was an integrated scheme and it was a scheme, as we would put it, specifically devised to protect inhabitants from the risk of fire. If fire occurred, then the level of danger was significant and there was an embarking upon remedial action by the Council in writing the relevant letter and there was a failure to follow it up.

It is out of those combined considerations that the duty of care is held to flow. Doubtlessly, different aspects of the situation gave rise to different weighting in the decision whether a duty was to be inferred or not. So that your Honours would follow me, I would wish to say that in relation to the provisions out of which the power to carry out road maintenance activity arises, those powers are not specifically inserted into the Local Government Act for the purpose of protecting people from danger. They are there for the purposes of allowing the roads to be kept in a trafficable condition so that the roads can be used.

There is a significantly different purpose between Pyrenees and between the current case. In Pyrenees there was an embarking by the Council upon enforcement activities which is not replicated here. Moreover, in Pyrenees there was a significant actual knowledge in the Council of the very dangerous condition. The inspection the year before, if I recall correctly, by some officer had identified a serious risk of injury, so that was actually known to the Council. We dispute that there was any knowledge in us of the excessive piping in the bridge. So we would say the critical differences, if one looks at this in terms of the way the issue in Pyrenees developed, are those three: actual knowledge, in contradistinction to some form of inferred knowledge or to actually no knowledge in this case; a power, the exercise of which was for the purposes of protecting the inhabitants against fire; in contradistinction to a power, the purpose of which is to permit the roads to be maintained in proper trafficable condition, and of course the embarking upon it.

I will go back to that perhaps tomorrow, but what I would then want to do, having - I would then like to look at Romeo. I have got them written down here, so I will get the names right. Romeo, Nagle, Schiller v Mulgrave Shire and perhaps Aiken v Kingborough to some extent. I accept the position, of course, that since Zaluzna we cannot have different categories of duty in relation to occupancy of land. The consequence of Zaluzna has been that the special categories of occupier, invitee, licensee, trespasser, have all been amalgamated under the general law of negligence and the consequence of that must have its effect upon Aiken v Kingborough Corporation. I would say, with respect, we simply have an exemplification of the result in Schiller v Mulgrave Shire. Having said that, your Honours, I would like to look quickly at Perre v Apand. That is simply a private case. That would leave me Crimmins and I would deal with that perhaps in a little more detail.

Following that, your Honours, I would wish to go to the question of whether or not it is appropriate that this immunity be looked at again. I remember yesterday that there was some argument about the use of the word "immunity". I think it is simply a satisfactory shorthand term but indeed the actual phrase "immunity" does appear in the legislation.

In the Roads Act, 1993, (NSW), the word is in section 65, I think it is, and in section 72. So the legislature has actually, since the receipt of the report by the Law Reform Commission, endorsed the concept of the immunity, because it gives in that legislation to the authority the immunity which local councils hold. So we have a firm endorsement there.

GLEESON CJ: What were those sections?

MR McALARY: Sections 65 and 72, if I recall correctly, your Honour.

KIRBY J: Is this after the injury to the applicant?

MR McALARY: Yes, your Honour, it is, I accept that.

KIRBY J: How can you use that then?

MR McALARY: Well I would use that quite simply, your Honour, in this way. Your Honour is looking at the question of whether or not the immunity should be struck down or judicially repealed. The answer I would put is that it should not and the reasons it should not is being because the immunity has been endorsed since the receipt of the Law Reform Commission's recommendations. That would be a significant reason for doing it. The other matter that I would wish to add on that issue is that this Court in Trignell looked at the question of whether or not the long-standing rule in relation to stock wandering on the highway should be struck down as being not in accordance with current conditions.

The three lineal predecessors of your Honour the Chief Justice were all of the same view that it should not be removed. I mean, Sir Garfield Barwick, Sir Harry Gibbs and Sir Anthony Mason all concurred in the view that the appropriate forum to deal with it is the legislature, and I would wish to take your Honours to that in some short detail.

The final issue that I would wish to raise with you is an issue which I trust will win some degree of interest, and that is, in my submission, the abolition of this immunity would be an interference or a maladjustment of the macro-economic structures upon which the motor vehicle usage activity rests, and that, of course, requires me to look at the development of the motor vehicle law for the last 50 to 100 years if you like. It only requires one to think about three or four very simple points. If you go to the position prior to 1942, you would find that the economic activity, which may be summed up as motor vehicle usage, carried its costs either where they fell or where fault would allocate them. In other words, the criteria at that point of time was fault and where the costs fell. In 1942 you have introduced into the law two significant pillars upon which the law has since - - -

GUMMOW J: The law of New South Wales.

MR McALARY: The law of New South Wales, sorry, your Honour - two significant pillars upon which the matter has since rested. The first of those is that every motor vehicle owner would take out a third party policy of insurance. The second is that every person injured through the use of a motor vehicle would receive his benefit out of the fund established by that tax. Now, that was wider than just the identification of one vehicle, of one owner. The fund was available to meet claims in respect of uninsured vehicles and in respect of unidentified vehicles. So the fund was available as a tax fund for all people who suffered injury through the use of a motor vehicle.

The critical factor is the protection which that fund rendered because it rendered to every person who owned a motor vehicle a protection from all loss suffered through the use of the motor vehicle and that protection arose out of the statutory agency which the legislation brought to account. The one thing that one may say about 1942 was that outside the ambit of the benefit receipt was the person who was at fault. Fault remained a disqualifying factor. The fault of the driver, the fault of the pedestrian, the fault of any person making a claim would disqualify him.

A significant change was made in 1967 in the contributory negligence legislation. That removed fault as a defence in bar and it allowed a person at fault to make a claim subject to any abatement in respect of contributory negligence. So people at fault were brought within the ambit of the macro-economic structure.

Now, fault itself, of course, is a matter of judicial - as a result of judicial movement over the years, has been very largely eliminated as a relevant consideration in motor vehicle litigation. It is really not litigation any longer. It is more in the nature of a rather expensive method of handing out social services but it is still around. Now, what I wanted to say was, if you are looking at this legislation, if you are looking at this immunity and you are thinking of abolishing this immunity, then who are going to receive the benefits and who are going to receive the costs?

There is, without doubt, a benefit available to the driver of a motor vehicle that runs off the road, not due to any other vehicle, but simply runs off the road because he goes around the curve too fast and runs into a tree. He will be able to claim that he has a defendant, the defendant being the local road authority who should have cut down the tree because they should have foreseen that going round that curve you might run off the road. So they should have cut the tree down. That will be the basic case. So he will gain a benefit. But the real benefits are not going to go there at all.

KIRBY J: That would depend on whether it is reasonable in the particular circumstances.

MR McALARY: Yes, I am just quickly running through it, your Honour. I mean, all those questions are coming up but in a practical sense that driver thereafter would have the one thing that he currently lacks, a defendant, and he needs a defendant to get himself within the macro-economic structures. Now, the real people, though, who are going to benefit out of this, and this is important in my submission, is going to be the third party insurers because every time there is an accident on the highway involving one vehicle, two vehicles or a number of vehicles, if there is any suggestion that in some way non-repair or non-maintenance of the highway was involved in this accident, what you will have is what you are seeing developing today.

The driver is sued by his passengers or by people in the other car. His third party insurer immediately proceed to issue third party notices to the highway authority seeking to obtain out of the highway authority a cross-subsidisation to the funds that they administer. The cross-subsidisation is coming from a very limited section of the community. It is not coming --in other words, what you have is what the economists call externalities, and if you seek to have a capitalistic competitive economy, then externalities are a matter to be carefully avoided.

What I am seeking to say is that the abolition of this community principle will have a significant effect, in the sense that it will mean that a very large subsidy will be extracted from the ratepayers in the end in favour of the insurers. It will bring down third party premiums because a significant percentage of the cases will receive some degree of subsidy.

But it will not apply to every person. If a driver of a vehicle is driving in the city and he simply runs into a brick fence that the resident has put up along his boundary, it is not beyond the ingenuity of lawyers to think of a case that the highway authority or the municipality in some way is responsible for him running into the brick fence, but putting that degree of ingenuity and fantasy, which we find frequently, he should generally fail. So the concept of abolishing the immunity to allow people to have a defendant and thereby enter within the ambit of the entitlements arising out of the third party insurance taxation, will not extend to everyone; it will extend only to a selected group and the effect of it will be to impose a burden upon the ratepayers of the country towns. Those ratepayers have already, in so far as they are users of motor vehicles, paid their tax. They have a motor vehicle, they use a motor vehicle, they are therefore within the economic area of motor vehicle usage, but they have paid their tax and they therefore should have no further imposition upon them. But what you are getting under this abolition system - - -

KIRBY J: If they or their relatives are injured, they would be very much in favour of this imposition.

MR McALARY: I do not know about that, your Honour. In any event, what I really wanted to say is that if you are going to look at the benefit and you are going to look at the burden, I suggest, with respect, that one needs to look at the benefits obtained by the insurers of the third party funds through the operation of the doctrine of subrogation.

GLEESON CJ: Well now, that - - -

MR McALARY: I probably spent more time than I should have.

GLEESON CJ: Yes, well we understand your point in relation to that and it probably will not be necessary to come back to it tomorrow. But we have another case in the list for tomorrow and I am making these inquiries for the benefit of counsel in that case, one of whom, I think, is here anyway. How long do you think that your submissions will take, Mr McAlary?

MR McALARY: In view of that, I will attempt to be short, your Honour; may I suggest perhaps three-quarters of an hour. I will definitely be going quickly.

GLEESON CJ: Yes. Mr Garling?

MR GARLING: I would hope to be of that order or shorter, your Honour.

CALLINAN J: Mr McAlary, could I just ask you to consider a matter overnight please, because I would like to hear something on it. If the Court were to take the view that Mr Jackson were permitted to argue a misfeasance case here, would you respond to what he says constituted the misfeasance in this case and his definition of it? Would you be able to do that tomorrow for my benefit, thank you?

MR McALARY: I will seek to do so in a way that I trust will be satisfactory.

CALLINAN J: Thank you.

GLEESON CJ: Now, so far as the interveners are concerned, we have their written submissions and we will rely on those and we will not have oral argument from the interveners.

We will adjourn now until 9.30 am tomorrow morning and the next case will be listed not before 11 am.

MR McALARY: If the Court pleases.

AT 4.25 PM THE MATTER WAS ADJOURNED

UNTIL FRIDAY, 1 SEPTEMBER 2000