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Date: Tue, 27 Feb 2007 11:47

From: Ken Oliphant

Subject: HCA on Non-Delegable Duty; the ODG in the HCA



Isn't your "right" merely "the right not to be caused special damage by an (unreasonable) obstruction of the highway", not a right not to be obstructed there per se?

I suspect you're now going to correct me as if I were an inattentive schoolboy... ;-)




--On 27 February 2007 11:21 +0000 Robert Stevens wrote:

Gratifying as it is to be cited in the High Court of Australia, albeit for propositions I was seeking to refute rather than for propositions I was trying to prove, perhaps its most striking aspect is how far Australian law has moved away from the traditional common law.

Every day I cycle into work from East Oxford. I have to cross Magdalen Bridge. Today, and for many days past and to come, there are roadworks blocking half the road. As a result there are terrible delays and I am still wet from the rain which fell on me as I waited at the temporary lights.

Now, I have a right against everyone else that they do not unreasonably block the highway. In Australia, this right is enshrined in legislation (s 5 Roads Act 1993), in England the right is still sourced in the common law.

So, if a well meaning philanthropist had decided to carry out the highway work, those who suffer special damage as a result would have a claim against him, just as they would, prima facie, against anyone else digging up the road. Of course the philanthropist would not do all of the work personally, he would authorise someone else to carry out the task on his behalf. If A authorises B to perform a task on A's behalf, B's actions are attributed to A. So, if A authorises B to hit C, A is jointly liable with B for battery. If A authorises B to publish a statement on his behalf which is defamatory of C, both A and B are joint tortfeasors. If A authorises B to dig up the road, causing a nuisance to C, both A and B are jointly liable. Attribution as a result of authorisation is not dependent upon B being A's employee.

Now, where the work on the highway is carried out by a public body, they are commonly conferred a privilege by legislation to carry it out which persons generally do not possess. The issue in Leichhardt Municipal Council v Montgomery was, or should have been, the scope of this statutory privilege. This is simply a question of statutory construction.

Sometimes statutory privileges approach the absolute, so that the public body will not be liable however careless it or its agents are. (The privilege of the postal service in England is nearly of this kind). At the other extreme, sometimes the public body cannot be stopped by an injunction from infringing the right but must still pay damages for its infringement regardless of fault. The UK Land Compensation Acts work like this.

In between, the privilege may be qualified. So the defendant authority may have a privilege to act where it is not at fault. Alternatively, there may only be a privilege where the authority or anyone carrying out a task on its behalf, is without fault. In the highways cases, this is the conclusion of Hardaker v Idle DC [1896] 1 QB 335, CA; Penny v Wimbledon UDC [1899] 2 QB 72, CA; Holliday v National Telephone Co [1899] 2 QB 392, CA.

In Australia, the law seems to me to be quite different. So, the general rule that members of the public have the same rights against public bodies that they do against everyone else, so that public bodies cannot be liable for merely failing to confer the benefit of protection, seems to have been abolished (Brodie v Singleton Shire Council (2001) 206 CLR 512 but see the earlier approach of Sutherland Shire Council v Heyman (1985) 157 CLR 424). In England, the position is quite different (Gorringe v Calderdale Metropolitan Borough Council. [2004] UKHL 15, [2004] 1 WLR 1057).

Further, the decision in Brodie to amalgamate the tort of public nuisance into liability for negligence has radically changed the law. In Leichhardt Municipal Council v Montgomery the claim was brought for negligence, and the court concluded that without negligence on the part of the authority the claim failed. Unless the claim had been framed as a one based upon public right to use the highway, it was doomed to fail.


Ken Oliphant, CSET Reader in Tort, School of Law, University of Bristol, Wills Memorial Building, Queens Road, Bristol BS8 1RJ.



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