The appellant public authority was successful on appeal in a number of respects including the immunity contained in the Civil Liability Act (NSW) (cf: ss.34-37 CLA Qld):
Basten JA with whom the court agreed:
- The trial judge held that none of these omissions involved the exercise or failure to exercise a “special statutory power”, because all (or at least the particular omission found to be material, namely the omission of a “keep left” sign) could be undertaken by the Authority in the exercise of its powers as the owner of the land. This conclusion is not consistent with the later reasoning of this Court in Curtis v Harden Shire Council,  delivered after the trial judgment in this case. No attempt was made on behalf of the plaintiff to distinguish between the elements of negligence alleged, on the basis that some might constitute a failure to exercise a special statutory power, while some might not. For reasons which will be explained below, that approach was correct: all the particulars involved the exercise of special statutory powers in designing, constructing and maintaining the intersection.
- So far as the operation of s 43A was concerned, the plaintiff sought in this court to distinguish the reasoning in Curtis. He submitted that Curtis did not involve (or consider) how the section was engaged with respect to a failure to exercise a power. That concept, the plaintiff submitted, did not encompass a failure to address an issue at all, but only a positive decision, after consideration, not to exercise a power. For example, if the Authority had considered the erection of a sign on the nose of the median strip, but decided not to take that step, it could invoke the immunity. On the other hand, if it gave no consideration to the possibility of erecting a sign, it could not invoke the immunity.
- As a matter of abstract analysis, it was open to the plaintiff to say that a “failure to exercise” a power might be the result of a consideration or inadvertence. However, there are reasons to doubt that such nice distinctions have relevance in the statutory context.
- First, as was touched on in Curtis, there is no bright line distinction between exercising a power and failing to exercise a power. For example, it is common experience that lines demarcating traffic lanes do not extend across intersections, although one or two lines may be included for guidance, especially for turning traffic. The better understanding of this situation is not that the Authority has “failed” to mark lines, but rather that it has considered what guidance should be given by way of line marking, no doubt conscious of the purpose (to assist drivers) and the risk of confusion Thus, whether a particular situation is analysed as a limited exercise of a power or as an exercise of a power in some respects and a failure to exercise the power in other respects may depend upon the level of detail at which the analysis takes place. The same point arises with respect to a distinction between a considered decision and inadvertence. It is by no means clear that the statutory scheme envisages the relatively high level of particularity required by the plaintiff’s approach. Nor is such an approach in keeping with the statement of principles set out in s 42:
42 Principles concerning resources, responsibilities etc of public or other authorities
The following principles apply in determining whether a public or other authority has a duty of care or has breached a duty of care in proceedings for civil liability to which this Part applies:
(a) the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising those functions,
(b) the general allocation of those resources by the authority is not open to challenge,
(c) the functions required to be exercised by the authority are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceedings relate),
(d) the authority may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceedings relate.
- Although the different provisions in Pt 5 deal with questions of duty and breach in different ways, no basis was articulated upon which these principles should not be applied in the application of s 43A. Paragraphs (c) and (d) are not consistent with the approach proposed by the plaintiff to the construction of s 43A(3).
- Other sections in Part 5 expressly address both a failure to exercise a function and the failure to consider exercising a function. Thus, s 44(1) provides:
44 When public or other authority not liable for failure to exercise regulatory functions
(1) A public or other authority is not liable in proceedings for civil liability to which this Part applies to the extent that the liability is based on the failure of the authority to exercise or to consider exercising any function of the authority to prohibit or regulate an activity if the authority could not have been required to exercise the function in proceedings instituted by the plaintiff.
- The plaintiff submitted that the explicit differentiation in s 44(1) between a failure to exercise and a failure to consider exercising a function supports the view that the failure to exercise referred to in s 43A(3) does not apply where there has been a failure to consider the exercise of a power. There is no doubt overlap between s 43A and s 44, as recognised by s 43A(4). The term “function” is defined to include a power, authority or duty.  It is likely that the erection of traffic lights would constitute the exercise of a function regulating an activity; accordingly a road authority could not be liable for a failure either to erect traffic signals, or to consider erecting such signals. It would be curious if the same function, involving (as many such functions will) the exercise of a special statutory power, might be covered by s 44, but not s 43A. The purpose to be served by such a distinction is not evident.
- A similar inference was sought to be drawn from s 45 which provides:
45 Special non-feasance protection for roads authorities
(1) A roads authority is not liable in proceedings for civil liability to which this Part applies for harm arising from a failure of the authority to carry out road work, or to consider carrying out road work, unless at the time of the alleged failure the authority had actual knowledge of the particular risk the materialisation of which resulted in the harm.
(2) This section does not operate:
(a) to create a duty of care in respect of a risk merely because a roads authority has actual knowledge of the risk, or
(b) to affect any standard of care that would otherwise be applicable in respect of a risk.
(3) In this section:
carry out road work means carry out any activity in connection with the construction, erection, installation, maintenance, inspection, repair, removal or replacement of a road work within the meaning of the Roads Act 1993.
roads authority has the same meaning as in the Roads Act 1993.
- The inter-relationship of the various provisions in Pt 5 is not without its difficulties. The operation of s 44 is to deny liability in civil proceedings where an authority could not be required by the plaintiff to exercise the particular function, where the failure to exercise or consider the exercise of the function has resulted in loss to the plaintiff. That is, liability depends upon the function involving a power coupled with a duty, where the duty to act is enforceable by the injured party. Little consideration was given to the operation of that provision in the present case, although, at least on one view, it was engaged, subject to the question of standing to obtain a mandatory order. Pursuant to s 87(1) of the Roads Act 1993 (NSW) the Authority had power to “carry out traffic control work” on all public roads. (It was a basic premise of the plaintiff’s case that it had power to put signs at the intersection of Epping and Longueville Roads.) It also appears to have been accepted that the Authority was the “roads authority” with respect to the intersection.  Part 8 of the Roads Act provides that roads authorities may “not regulate traffic on a public road otherwise than in accordance with this Part.”  Section 115 provides:
115 Roads authority may regulate traffic in connection with road work etc
(1) A roads authority may regulate traffic on a public road by means of barriers or by means of notices conspicuously displayed on or adjacent to the public road.
- Further, the conferral on the Authority of power to carry out “traffic control work”  includes activities in connection with the installation of a traffic control facility, which is defined to include a sign.  The combination of these provisions confirms the ordinary meaning of the language used in s 44, namely that placing signs directing traffic, including a “keep left” sign would constitute the exercise of a function of the Authority to prohibit or regulate an activity. The plaintiff did not suggest that he would have had standing to require the Authority to place a “keep left” sign on the median strip on the eastern side of the intersection. Accordingly, the effect of s 44(1) appears to be that the Authority could not be liable for any failure to exercise or consider exercising the power to regulate traffic by placing a “keep left” sign on the median strip.
- Nevertheless, the case was not run on that basis and little attention was paid to the relationship between the various provisions in Pt 5 of the Civil Liability Act. At trial, the judge having determined that the power to carry out traffic control works was not a “special” statutory power, because any member of the public could erect warning signs on a road on his or her private land, did not need to consider further aspects of s 43A. 
- This case had nothing to do with a road on private land: it was concerned with the erection of a sign on a public road. As the parties accepted on appeal, the carrying out of such work constituted the exercise of a special statutory power, as held by this Court in Curtis.  It followed that the appellant could not be liable in a civil action for any act or omission involving the failure to exercise its relevant statutory powers unless the act or omission was in the circumstances “so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power.”
- The test to be applied is, as noted in Curtis,  grammatically awkward. There are, three separate elements to the test which need to be identified. First, the requisite assessment of unreasonableness is to be made by an hypothetical reasonable public authority: while the court must make the assessment, it must do so by reference to the approach properly taken by such an authority. The significance of that element is that the exercise must be undertaken having regard to the limits beyond which a person (such as an authority) having necessary expertise in traffic engineering would not step.
- Secondly, the test is formulated in the negative. By contrast with s 5B(1)(c) of the Civil Liability Act, it is not satisfied by evidence of what a reasonable traffic engineer would have done as a precaution against an identified risk. Rather, it is only satisfied by proof that no traffic engineer acting reasonably would have failed to take the precaution identified by the plaintiff. That is, accepting that there will be a range of views amongst reasonable traffic engineers, the omission must be such that no person with the requisite expertise could properly consider the omission to be reasonable. The fact that a high threshold is being prescribed is revealed by the double negative, “so unreasonable that no authority …”.
- Thirdly, the section reformulates the standard by which a breach of duty is to be judged. Once the section is engaged, the plaintiff will have to establish negligence beyond the statutory threshold in order to succeed.  An assessment of the relevant evidence in the present case demonstrates that the plaintiff failed on any view to establish that burden. (Indeed, it may be doubted whether the evidence established breach according to the ordinary standard identified in s 5B.)
David Cormack – Brisbane Barrister & Mediator