Highway Immunity and the Victimisation of Australian Law: Fact or Fiction?

Abstract

A strand of Australian judicial and academic writing has criticised the application of the common law highway immunity rule in negligence cases against road authorities, arguing that it was an English rule foisted by precedent on a country for which it may not have been suitable. Through a detailed analysis of Australian cases from the late 19th century until the affirmation of the rule by the High Court of Australia in 1936, this article challenges the idea that the highway immunity was an unwanted addition to Australian tort law. Whether an authority should be liable for nonfeasance in respect of roads was a contested issue, and by dismissing it simply as an anachronistic English rule, the achievements of Australian judges in attempting to make sense of a rule notoriously difficult in application are lost.