2.1 History shows that the nonfeasance rule arose more by accident than design. The origins of the rule lie in the England of the middle ages where the rule developed from procedural difficulties experienced in suing those responsible for the maintenance of highways. Until the nineteenth century, it was the inhabitants of the local counties who had responsibility for the maintenance of highways. Then, as now, there was no mechanism available for bringing proceedings against such a group collectively. Individual actions were prohibited because of the multiplicity which would have resulted.¹ As often happens in law, the rule outlived the procedural difficulties upon which it was based and was applied even after responsibility for the maintenance of highways had passed into the hands of public corporations.² Although it has been argued that the rule took hold because of a concern on the part of the courts that visiting civil liability on those responsible for the maintenance of highways would impose impossible or intolerable burdens on them, the cases themselves provide little evidence to support that view.

2.2 It should also be noted that the nonfeasance rule emerged before the development of the modern rules of negligence. It developed as a defence to an absolute duty to maintain imposed by the early law of nuisance Under that law the persons or bodies charged with the maintenance of highways were liable for accidents caused by defects in the highway, whether or not they could reasonably have been expected to have identified and remedied the defects.³ The rule was later applied to claims in negligence. Whether it should have been is questionable, as in negligence cases defendants will only be liable if it can be shown that they have failed to take reasonable care having regard to all the circumstances of the case.⁴

II. THE RULE

2.3 No matter what view is taken of the history of the rule, there is little doubt that it is firmly established and that it applies in Australia.⁵ It exempts highway authorities from all civil liability, whether the action be brought in “nuisance, negligence, or a special form of negligence such as breach of the duty of an occupier”.⁶

2.4 The classic statement of the rule is made by Dixon J (as he then was) in Buckle v Bayswater Road Board:

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. Such a liability may, of course, be imposed by statute. But to do so a legislative intention must appear to impose an absolute, as distinguished from a discretionary, duty of repair and to confer a correlative private right.⁷

The distinction made by Dixon J between duties arising at common law and under statute is fundamental. The rule that a statutory duty enforceable by civil action will only arise where there is a clear legislative intention to impose it is of general application. It is not peculiar to highway authorities and should not be confused with the nonfeasance rule which applies to highway authorities only and offers complete immunity from all civil liability.

2.5 In Chapter 1 we stated that the present law in New South Wales could be summarised in two propositions.

• Highway authorities owe no duty to road users to repair or keep in repair highways under their control and management.
• Highway authorities owe no duty to road users to take positive steps to ensure that highways are safe for normal use.

The first proposition is a result of the rule of general application concerning statutory duties. In New South Wales, the statutes assigning responsibility for the repair of highways are expressed in permissive rather than mandatory terms: they give a power to repair but do not impose a duty to do so. Therefore, as presently drafted, there can be no question of a statutory duty to repair being imposed on highway authorities. It is the second proposition which describes the operation of the nonfeasance rule and it is the immunity so conferred with which this Report is concerned. This immunity covers not only failures to repair but also other failures to safeguard road users. Under the nonfeasance rule, highway authorities incur no civil liability for injuries or damage caused by their failure to maintain or repair a highway. Nor are they liable for failing to act in other ways, such as failing to signpost or fence off dangers occurring on or near the highway, or not removing obstructions. The gravamen of the nonfeasance rule is that highway authorities can never be liable for such failures, even if it can be shown that the exercise of reasonable care on their part would have demanded some action. All other public authorities exercising control over public facilities (and persons in control of land generally) are liable to persons injured by their failure to repair or make safe those facilities if a lack of reasonable care can be shown.

III. LIMITS OF THE RULE

2.6 Because the concession afforded to highway authorities by the nonfeasance rule is anomalous, the courts have adopted a number of devices to confine its ambit of operation. The key terms “nonfeasance”, “highway authority” and “highway” have been construed narrowly. As a result it is necessary to make three somewhat nebulous distinctions when applying the rule:

• the distinction between mere nonfeasance and conduct on the part of a highway authority which is capable of being construed as misfeasance;
• the distinction between a highway authority acting in that capacity and acting in some other capacity, for instance as a drainage authority (the ‘source of authority’ test); and
• the distinction between works which are artificial structures and works which are part of the roadway itself.

A. Non-Feasance and Misfeasance

2.7 Highway authorities, like other public authorities and individuals, are liable for their tortious acts (misfeasance):

...while a road authority owes to the-members of the public using a highway no duty to undertake active measures whether of maintenance, repair, construction or lighting in order to safeguard them from its condition, on the other hand it possesses no immunity from liability for civil wrong. It is, of course, a civil wrong to cause particular damage by obstructing a highway, or by making it unsafe or dangerous. Interferences with a highway which in themselves would be unlawful in a stranger are as a rule authorized acts when done by a road authority. But a road authority in doing them must take due care for the safety of those using the highway and is not protected if it creates dangers which reasonable care and skill could avoid. 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.⁸

2.8 Clear examples can be given of both nonfeasance and misfeasance, but the dividing line between the two can become very difficult to determine in certain situations, particularly where the highway authority in question has done some work on the highway on which the accident occurred.

If a highway authority, therefore, leaves a road alone and it gets out of repair, there is, of course, no doubt that no action can be brought, although damage ensues. But this doctrine has no application to a case where the road authority have done something, made up or altered or diverted a highway, and have omitted some precaution, which, if taken, would have made the work safe instead of dangerous.

You cannot sever what was omitted or left undone from what was committed or actually done, and say that because the accident was caused by the omission therefore it was nonfeasance. Once establish that the local authority did something to the road, and the case is removed from the category of nonfeasance. If the work was imperfect and incomplete it becomes a case of misfeasance and not nonfeasance, although damage was caused by an omission to do something that ought to have been done. The omission to take precautions to do something that ought to have been done to finish the work is precisely the same thing in its legal consequence as the commission of something that ought not to have been done, and there is no similarity in point of law between such a case and a case where the local authority have chosen to do nothing at all.⁹

2.9 To give a relatively simple example, if a highway authority in the course of carrying out repair work digs a hole in a highway but omits to erect a protective barrier around it at night, this would be misfeasance in relation to users of the highway.¹⁰ It is misfeasance because the omission to fence off the hole or take other measures to safeguard users means that the repairs were carried out carelessly. If, on the other hand, the hole in the highway had been caused by natural deterioration or by the actions of a third party, the failure of the highway authority to repair it or to erect a protective barrier would be nonfeasance.¹¹

2.10 To take another example, assume that a highway authority sets out to remedy a defect in the road but, either because it fails to appreciate fully the nature of the problem or because of the inadequacy of the method of repair adopted, it fails to remedy that defect fully. Is this misfeasance or nonfeasance? If it can be shown that the highway authority was “negligent” in failing to appreciate the nature of the defect or in adopting an inappropriate method of repair, misfeasance is arguable in that the highway authority clearly did something and did it in a negligent manner.¹² The courts have, however, resisted the argument that merely because a highway authority has done something to the road, the case is necessarily one of misfeasance. A highway authority will only be liable if it has by its action created a new or additional danger that did not exist previously and which the exercise of reasonable care would have avoided.¹³ The mere fact that a highway authority makes some repairs to a road but fails to remedy a pre-existing defect will not expose it to liability. Such cases are sometimes distinguished as cases of “inadequate amelioration”,¹⁴ for which no liability attaches. However, some qualification of these principles might be necessary following the recent decision of Clarke J in Marr v Holroyd Municipal Council.¹⁵ In that case, the plaintiff suffered severe leg injuries (eventually requiring the amputation of one leg below the knee) when he fell off his motorcycle as a result of having struck a pot-hole in the road. There was expert evidence, which was accepted by Clarke J, that the peculiar shape of the pot-hole indicated that it had recently been repaired and repaired badly, causing the fill to be eroded more quickly than would have been the case had the repair been done properly. There was no suggestion that the repairs had made the original pot-hole more dangerous or created a new danger. On these facts, Clarke J held that there had been misfeasance on the part of the council. This finding was based on the fact that the reappearance of the pot-hole which caused the plaintiff Is accident was not due to mere wear and tear but was a consequence of the negligent repairs undertaken by the council.¹⁶

2.11 The distinction between misfeasance and nonfeasance has not proved easy to apply in practice. This is demonstrated by the’ large number of reported cases in which this distinction has been the principal issue in dispute and by the often acute differences of opinion between individual judges hearing such cases either in the same court or at different levels of the appellate hierarchy.¹⁷ Unanimity of opinion is rare even among judges hearing the same facts and it is impossible to discern any general guidelines taken from the body of cases as a whole. As a result, the likely outcome in any particular fact situation is extremely uncertain. Ultimately, the result will depend on the facts of each case and, in borderline cases, upon the degree of ingenuity the court is willing to exercise in finding some conduct on the part of the highway authority that can be said to have created a new or additional danger. An examination of the decisions in particular cases does little to elucidate the distinction. Three are given as examples.¹⁸

• In Tickle v Hastings Shire Council,¹⁹ the plaintiff Is truck was damaged as a result of the collapse of a bridge forming part of a highway. The defendant council had previously replaced the top decking of the bridge, but had done nothing to repair its base which was rotting and dangerous. On appeal, the Supreme Court of New South Wales upheld the jury’s decision that in these circumstances the defendant was liable for misfeasance. The view was taken that if the defendant had done nothing, the bridge would have become impassable at some time well before the plaintiff Is accident. By redecking the bridge, but not remedying the defects in its base, the defendant had created a danger in the highway. The action of redecking the bridge was negligent because the defendant should have foreseen that heavy vehicles would pass over the bridge.
• In Culcairn Shire Council v Kirk,²⁰ on facts very similar to those in Tickie, the opposite result was reached. In that case, the defendant had partially repaired a wooden bridge by replacing its central longitudinal tracks while leaving the transverse decking below unrepaired. The bridge was only safe for the passage of heavy vehicles if they remained on the longitudinal tracks and the repair work which was done had merely maintained this situation. A heavy truck being driven across the bridge left the longitudinal tracks, fell through the transverse decking and was damaged. The Full Court of the Supreme Court found in favour of the defendant council holding that it was not guilty of misfeasance in repairing the bridge. As its repairs had not created a new danger, but had improved what otherwise might have been, it could not be liable for its failure to repair the whole bridge. This could only amount to nonfeasance. Although the Court distinguished Tickle, the distinction is “if not illusory, at the very least, undesirably fine”.²¹
• In McDonogh v Commonwealth,²² the plaintiff was injured when the tanker he was driving overturned on an unsealed road maintained by the Commonwealth. The road was of a “cut and fill” design and its edge was inadequate to carry the tanker’s weight. No measures had been taken to warn vehicles about the soft edges of the road. Blackburn CJ, sitting at first instance, found for the Commonwealth. His Honour held that when the Commonwealth carries out the construction or maintenance of roadworks it is entitled to rely on the nonfeasance rule and that in this case no more than nonfeasance had been shown. Given the time of its construction (the exact date of which was not known), it had not been negligent to construct a road of cut and fill design. When the Commonwealth later became aware of heavier vehicles using the road, its failure to strengthen the road or take other protective measures was nonfeasance and therefore not actionable. On appeal to the Full Bench of the Federal Court, a majority of the Court found that there was misfeasance and that therefore the Commonwealth was liable. Misfeasance was found in the way regular maintenance work had been done by the Commonwealth. By grading and levelling the road and by compacting only some of the fill at the side of the road the Commonwealth had given the road the appearance of safety and uniformity across its surface. The Commonwealth had created and maintained a trap, and having done nothing to warn road users, was liable in negligence. Neaves J dissented, holding that there was no evidence that the maintenance work had been carried out negligently, nor that it “made the road unsafe or dangerous or concealed or contributed to the concealment of a dangerous situation that otherwise existed”.

B. Source of Authority

2.12 The nonfeasance rule applies only to highway authorities and not to other public authorities, such as sewerage or drainage authorities, which may be called upon to maintain structures upon or under a roadway. Further refinement of this distinction is necessary where a single authority has multiple functions, including the construction and maintenance of highways. The immunity will only apply to a highway authority when acting in its capacity as such and not in respect of things omitted to be done in some other capacity.²³

2.13 As it is somewhat fanciful to talk of the capacity in which an authority has failed to act, the courts have preferred to concentrate on the source of the danger for which liability is alleged. If the structure constituting the danger was placed upon or under the road for highway purposes, then the immunity will apply, but if the structure was placed there for some other purpose - such as drainage or traffic control - the immunity will not apply and the authority will be liable if it negligently fails to keep the structure in proper repair. As Fleming points out:

As the combination of numerous functions in the hands of the same authority has become so prominent a feature of modern administrative Organisation, the “separate function” theorem can, not infrequently, be exploited to sidestep the immunity.²⁴

2.14 Determining the authority under which a particular structure is placed in the highway is often difficult. This is demonstrated by the differences of opinion between Latham CJ and Dixon J (as he then was) in Buckle v Bayswater Road Board.²⁶ In that case, the plaintiff suffered injury as a result of treading in a hole caused when a drainpipe at the side of a road was damaged. The defendant Board was the statutory authority charged with repairing roads, but also had general drainage powers in the locality. The Board was responsible for the original construction of the drainpipe. Latham CJ and Dixon J applied the source of authority test and considered that liability depended upon the statutory power exercised by the defendant in the construction of the drain. Latham CJ found that the drain was constructed for a dual purpose - both for general drainage purposes and as part of the road construction plan - and held that in these circumstances the nonfeasance rule would not apply. Dixon J took a different view on the facts of the case and concluded that the drain had been built merely to drain the road foundation and that therefore the nonfeasance rule applied. The remaining judge, McTiernan J, held for the plaintiff on slightly different grounds.²⁷

C. Artificial Structures

2.15 The protection offered by the nonfeasance rule does not apply to artificial structures in or on the highway. This exception derives from the decision of the Privy Council in Borough of Bathurst v MacPherson.²⁸ In that case, the Borough had constructed a brick drain in the highway which over time had become defective, causing a hole to form in the road. The Borough had the care, control and management of the road and had the power to fix the drain, but had not done so. Their Lordships advised that in these circumstances:

... the duty was cast upon them of keeping the artificial work which they had created in such a state as to prevent its causing a danger to passengers on the highway which, but for such artificial construction, would not have existed, or, at the least, of protecting the public against the danger, when it arose, either by filling up the hole or fencing it.²⁹

2.16 There is no easily workable definition of what constitutes an artificial structure for the purposes of the exception. In the ordinary sense of the term, the highway surface itself is an artificial structure. Some explanation is offered by McTiernan J:

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 foundation 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.³⁰

2.17 The theoretical basis for the exception is also uncertain. It has been said that the failure to maintain an artificial structure is itself a species of misfeasance. For example, in Municipal Council of Sydney v Bourke, it was said of Borough of Bathurst v MacPherson:

The ratio decidendi was that the defendants had caused a nuisance in the highway. It was entirely independent of the questions whether there was an obligation to keep the highway in repair, and whether any person injured by the breach of such a duty could maintain an action. The case was not treated as one of mere nonfeasance, and indeed it was not so. The defendants had created a nuisance. Having made the drain, and failed to keep it in such a condition that the road would not fall into it, they were just as much liable as if they had made the excavation without constructing the drain, and the road had consequently subsided and become founderous.³²

This rationale for the exception seems to take a strained view of the notion of misfeasance, even by reference to the standard set in highway cases. If a structure is properly constructed in the first place and becomes dangerous only through subsequent failure to repair, it is very difficult to see how this can be treated as misfeasance. A more logical explanation for the exception would be as follows. Artificial structures are by definition structures which do not form part of the highway and are therefore not within the ambit of the nonfeasance rule. In the absence of the nonfeasance rule, the normal common law rules of negligence will apply. Applying general principles, the position of control over the artificial structure enjoyed by the highway authority is such that the authority is under a duty to take reasonable steps to prevent its constituting a danger to the public. Both these justifications for the exception were discussed by the New South Wales Supreme Court in Grafton City Council v Riley Dodds (Australia) Ltd.³³ The question is of some importance as, on the f irst view, a local authority will only be under a duty to maintain artificial structures which it actually places in the highway. On the second view, a local authority would be responsible for maintaining all artif icial structures on the highway,³⁴ or at least all artificial structures over which it had previously exercised its powers of control.³⁵ The court in Grafton City Council chose to leave this point undecided.³⁶

2.18 More fundamental are the doubts that exist as to whether the artificial structure exception is still available in Australia. Dixon J in Buckle v Bayswater Road Board³⁷ seemed to reject the exception, but it was applied by McTiernan J in the same case. It was ignored in Gorringe v The Transport Commission (Tas)³⁸ by Latham CJ and Dixon J, but accepted by Fullagar J. Professor Sawer,³⁹ writing in 1966, expressed doubts as to whether the exception was available to Australian courts. However, the High Court in the recent case of Webb v The State of South Australia⁴⁰ appeared to treat the exception as law, although its application was not strictly necessary for the decision in that case.

D. Successive Authorities

2.19 Special problems are created by the application of the nonfeasance rule in situations where successive authorities are responsible for the maintenance of the same road. if highway authority A is responsible for misfeasance in the construction or repair of a road, but the control of the road then passes to highway authority B, it has been held that only the authority actually guilty of the misfeasance alleged can be sued and that it can only be sued for so long as it continues to be responsible for the highway in question.⁴¹ Furthermore, because of the nonfeasance rule, B cannot be liable for failure to remedy the defect resulting from the misfeasance of A, even if the defect is apparent. Accordingly, a plaintiff might be left without a remedy even though misfeasance can be shown on the part of the original authority. A similar consequence might follow where an artificial structure constructed by one authority passes into the control of another. This will depend on the view taken of the basis for the artificial structure exception (see para 2.17). Sawer argues that the exercise of control by a subsequent authority over an artificial structure will be enough to impose a civil duty of care on that authority.⁴²

IV. THE AUTHORITIES TO WHOM THE RULE APPLIES

2.20 The nonfeasance rule applies to authorities “exercising powers for the construction, maintenance, repair and control of highways”.⁴³ For the purposes of the rule, “highway” is given its common law meaning. The essential characteristic of a highway at common law is that it be open to all members of the public.⁴⁴ Provided this requirement is satisfied, the expression will encompass remote and seldom used roads and ways as well as major roads considered highways in that term’s everyday sense. Furthermore, at common law, a highway need not be open to all classes of traffic. Thus the expression will include public footpaths, cycle-ways and bridlepaths, whether or not adjacent to roadways for motorised traffic.

A. The Commissioner for Main Roads and Local Councils

2.21 The principal highway authorities in New South Wales are the Commissioner for Main Roads and the respective local government authorities for various parts of the State. The powers and responsibilities of local councils in respect of public roads⁴⁵ are contained in Part IX of the Local Government Act 1919.⁴⁶ Power to construct, improve and maintain roads is conferred by s240 of the Act. Section 249 provides that “the council shall have the care control and management of every public road” and lists a number of specific powers relating to the control and use of roads.⁴⁷ Various other powers are conferred by Part IX covering a wide range of matters. These include power to stop traffic and take any other measures to protect the public from accidents while work is being carried out on a road⁴⁸ and power to erect posts or barriers on footpaths to prevent improper traffic or give warning of any danger.⁴⁹

2.22 The State Road Act 1986 is concerned with the control and management of classified roads. Classified road means a road declared under s4 of the Act to be a main road, a secondary road, a State highway, a tourist road, a State work, a freeway or a controlled access road.⁵⁰ In general, classified roads are major roads carrying through traffic between various local government areas or between various parts of the State. Section 12 of the Act confers on the Commissioner for Main Roads the functions and immunities of a council in respect of a public road. In addition, many of the powers conferred on councils by the Local Government Act 1919 are specifically conferred on the Commissioner,⁵¹ as are some additional powers.⁵²

2.23 The result is that the Commissioner and local councils have concurrent powers in respect of classified roads.⁵³ The division of responsibility for the making of decisions as to what works of construction or maintenance are to be carried out on classified roads and for the carrying out of these works is provided for by s13 of the State Roads Act 1986. Responsibility for freeways, State works and toll roads is exclusively with the Commissioner.⁵⁴ The Commissioner also has sole responsibility for making decisions as to what works are to be carried out on metropolitan main roads, State highways and other classified roads for which the Commissioner is responsible for the carrying out of the work.⁵⁵ Responsibility for the carrying out of work on classified roads can be divided between the Commissioner and local councils by agreement between them.⁵⁶ Failing agreement, the Commissioner may be authorised to carry out works in respect of a particular road by the Minister responsible for the administration of the Act.⁵⁷ Otherwise the road is under the care, control and management of the council.⁵⁸ Where a council carries out work on a classified road, the Commissioner may agree to provide financial or other assistance to the council in respect of that work.⁵⁹

B. Other Authorities

2.24 A number of other statutory bodies construct and maintain public roads within public areas of which they have care, control and management. These include:

• roads in national parks under the control of the Director of National Parks and Wildlife;
• roads in State forests under the control of the Forestry Commission;
• walking tracks on Crown land under the administration of the Department of Lands; and
• roads within reserves or State recreation areas vested in trustees appointed under the Crown Lands Consolidation Act 1913 or the National Parks and Wildlife Act 1974 respectively.

The Commission is not aware of any cases in which any of these bodies has sought to rely on the nonfeasance rule, but it would appear that the immunity is available to them in respect of public roads under their authority.⁶⁰

FOOTNOTES

1. Russell v The Men of Devon (1788) 2 TR 667, 100 ER 359.

2. McKinnon v Penson (1853) 8 Ex 319, 155 ER 1369; Young v Davis (1862) 7H & N 760, 158 ER 675; Gibson v The Mayor of Preston (1870) LR 5 QB 218.

3 Griffith v Liverpool Corporation [1966] 2 All ER 1015 at 1021 per Diplock.

4. Fullagar J described the extension of the rule to claims in negligence as “curious”: Gorringe v The Transport Commission (Tas) (1950) 80 CLR 357-at 376-7.

5. Bourke v Municipality of Sydney [1895] AC 433 is usually quoted as authority for the introduction of the rule in Australia. Although the Commission has some doubts as to whether this case has been correctly interpreted on this point, the application of the rule to Australia has been put beyond doubt by later authority: Buckle v Bayswater Road Board (1936) 57 CLR 259.

6. McDonogh v Commonwealth (1985) 61 ACTR 22 at 24 per Blackburn CJ.

7. (1936) 57 CLR 259 at 281.

8. Buckle v Bayswater Road Board (1936) 57 CLR 259 at 283 per Dixon J.

9. McClelland v Manchester Corporation [1912] 1 KB 118 at 127 per Lush J.

10. Clarke v Borough of North Sydney (1893) NSWR 499.

11. Hancock v Weddin Shire Council (1949) 17 LGR (NSW) 192.

12. Support for such an argument can be found in the judgment of Fullagar J in Gorringe v Transport Commission (Tas) (1950) 80 CLR 357 at 380.

13. Gorringe v The Transport Commission (Tas) (1950) 80 CLR 357; Kirk v Culcairn Shire Council [1964-5] NSWR 909.

14. See G Sawer “Non-feasance Under Fire” (1966) 2 NZULR 115 at 123 and the cases there cited.

15. Unreported, Supreme Court of New South Wales, 23 June 1986. The decision was on appeal at the time of writing (December 1987).

16. Clarke J relied on the dissenting judgment of Herron J (as he then was) in Florence v Marrickville Municipal Council (1960) SR (NSW) 562. He disapproved dicta of Owen T-in the same case which suggested that the inadequate repair of a pot-hole would not expose a highway authority to liability for misfeasance.

17. See for example, Hocking v Attorney General [1962] NZLR 118 and, on appeal, [1963] NZLR 513.

18. For further examples see Gorringe v The Transport Commission (Tas) (1950) 80 CLR 357; Hocking v Attorney General [1963] NZLR 513; Travis v Vanderloos (1984) 54 LGRA 268; Taylor v The Council of the Municipality of Marrickville (Unreported) 11 April 1986, Supreme Court of New South Wales; Hill v the Commissioner for Main Roads (Unreported) 19 August 1987, Supreme Court of New South Wales.

19. (1954) 19 LGR (NSW) 256.

20. [1964-5] NSWR 909.

21. Law Reform Commission of Western Australia, Report on the Liability of Highway Authorities for Non-Feasance (Project No 62, 1983) at 48.

22. (1985) 61 ACTR 22.

23. Buckle v Bayswater Road Board (1936) 57 CLR 259.

24. J G Fleming The Law of Torts (6th ed Law Book Co 1983) at 406.

25. Skilton v Epsom and Ewell Urban District Council [1937] 1 TB KB 112.

26. (1936) 57 CLR 259.

27. McTiernan J treated the drain as an artificial structure, see paras 2.15-2.18.

28. (1879) 4 AC 256.

29. Id at 265.

30. Buckle v Bayswater Road Board (1936) 57 CLR 259 at 300.

31. See Gorringe v Transport Corporation (Tas) (1950) 80 CLR 357; Hocking v Attorney General [1963] NZLR 513.

32. [1895] AC 433 at 441.

33. (1956) SR (NSW) 53 at 60-62.

34. Note 14 at 128.

35. See Sisson v North Sydney Municipal Council [1966] 1 NSWR 580.

36. (1956) SR (NSW) 53 at 62.

37. (1939) 57 CLR 259 at 290-291.

38. (1950) 80 CLR 357.

39. Note 14 at 126.

40. (1982) S6 ALJR 912 at 913.

41. Baxter v Stockton-on-Tees Corporation [1959] 1 QB 441; Florence v Marrickville Municiple Council (1960) SR (NSW) 562.

42. Note 14 at 127.

43. Buckle v Bayswater Road Board (1936) CLR 259 at 286 per Dixon J.

44. Consequently, if a way can only legally be used by a limited section of the public, such as quarry workers, it is not a highway: Leckhampton Quarries Co Ltd v Ballinger and Cheltenham Rural: District Council (1904) 68 JP 464.

45. Section 4 of the Local Government Act 1919 includes the following definition:

“Public road” means road which the public are entitled to use, and includes any road dedicated as a public road by any person or notified, proclaimed or dedicated as a public road under the authority of any Act, including this Act, or classif ied as a main road in the Gazette of the thirty-first day of December, one thousand nine hundred and six.

46. Section 17 of the State Roads Act 1986 extends to the Commissioner for Main Roads the functions and immunities of a council in respect of roads not within a council area. This relates to the unincorporated area in the west of the State.

47. Section 249(a)-(cc).

48. Section 250(l).

49. Section 250(2).

50. The State Road Act 1986 replaced the previous legislation governing classified roads, the Main Roads Act 1924. Other classifications recognised by the earlier Act, for example trunk roads, have lapsed and these are now treated as ordinary main roads.

51. See ss18-25, 28-30, 3 2 , 34, S6, 62, 63, 66, 67, 71, 72, 87, 105. For example s29 confers on the Commissioner the powers enjoyed by local councils in respect of stoppage of traffic (see para 2.21).

52. For example s65 dealing with the removal of certain unattended vehicles. This power is more comprehensive than the corresponding power under the Local Government Act 1919 which only allows removal of abandoned vehicles.

53. The relationship between the powers of local councils and those conferred on the Commissioner for Main Roads by the predecessor to the State Roads Act 1986, the Main Roads Act 1924, was examined by the Supreme Court of New South Wales in Commissioner for Main Roads v BP Australia Ltd & Anor (1964) 82 WN (Pt 2) (NSW) 27. The case decided that the powers of councils were diminished to the extent necessary to give effect to any statutory right, power, duty or obligation conferred on the Commissioner. It is noted that local councils would not have authority to exercise powers in respect of freeways, the property in which is vested in the Commissioner by s40 of the State Roads Act 1986. This is because s221 of the Local Government Act 1919 provides that councils’ powers shall not apply to a public road which is by law vested in any public body other than a council. This section also means that councils would not have powers over roads in national parks, State forests or State recreation areas (see para 2.24).

54. Section 13(2) and (3).

55. Section 13(2).

56. Section 13(4).

57. Section 13(5).

58. Section 13(8).

59. Section 16.