The Commission interpreted these terms of reference as requiring to report on whether there should be any change to the common law rule known as 'the non-feasance rule'. According to this rule, highway authorities are under no duty to undertake active measures to safeguard persons using their highways against dangers which make them unsafe for normal use, except in respect of dangers they have created or where there is a statutory provision to the contrary. Reform of the non-feasance rule was perceived to be necessary because: (a) the rule prevents the recovery of damages in some deserving cases; and (b) the rule is in practice unsatisfactory because the distinctions drawn in connection with it are difficult to apply or justify.
Terms of Reference
In 1975 the Commission was given a reference to advise whether there should be any change in the common law rules concerning the liability of a highway authority for injury or damage which is occasioned by accidents on the highway, and if so, what changes should be made.
Outcomes
Although, in 1985 the final report was acknowledged by the Attorney General as being under consideration, no specific legislation has resulted.
In the High Court decision of Brodie v Singleton Shire Council [(2001) 180 ALR 145] non-feasance immunity for highway authorities was abolished, only to be restored a year later by the Civil Liability Act 2002 (WA) s 52.
