From as early as 1985 road authorities in Australia were protected by the highway immunity for negligence arising from nonfeasance. In 2001 the highway immunity of nonfeasance was removed by the High Court decision in Scott Munn Brodie and Anor v Singleton Shire Council. The majority of the Court held the view that such matters should be considered under the law of negligence and an assessment should be undertaken based on whether there is a duty of care owed and whether there has been a breach of that duty sufficient to give rise to liability in negligence. The civil liability legislation introduced in 2002 provides a statutory regime for the law of negligence applicable to personal injury claims and enacts a partial nonfeasance rule by providing special protection for road authorities . The paper examines the effect of the civil liability legislation on the determination of the liability of highway agencies, if the legislation makes any substantial changes to the common law approach and provides conclusions about the application of the civil liability legislation in regard to road authorities. The paper concludes with recommendations on how road agencies can limit their liability for negligence arising from maintenance activities. (a) For the covering entry of this conference, please see ITRD abstract no. E217099.
Abstract