Before the pronouncement on this issue by the High Court in Brodie v Singleton Shire Council (Unreported) High Court of Australia 31 May 2001, a rule known as the "highway rule" allowed a road authority to escape liability if a danger arose on a road or footpath that it had never repaired (even where repairs were obviously required), but attract liability if a danger arose where an attempt at repair had been unsuccessfully made. The rule made positive action the determinant of litigation.

In Brodie, the cases of Brodie and Ghantous were referred to a Full Court of the High Court to be heard together. Mr Brodie had been injured when he drove a 22 tonne truck over a 50-year-old bridge and the bridge collapsed. The girders supporting the bridge had deteriorated as a result of either dry rot or white ants, which created a condition known as "piping". He and the owner of truck sued the local shire council in negligence. Mrs Ghantous had been injured when she tripped and fell on an uneven concrete footpath. The unevenness had occurred as a result of traffic and wind and water erosion. She sued the local city council in negligence and nuisance.

By a 4-3 majority the High Court ruled that the highway rule was no longer good law and should be replaced by the ordinary principals of negligence, namely that:

• highway authorities must take reasonable care that their exercise of, or failure to exercise, powers in relation to design, construction and repair of roads does not create a foreseeable risk of harm to road users;
• where risks are perceived, reasonable steps, within reasonable time, must be taken to remedy them; and
• if the risk is unknown or latent and only discoverable by inspection, highway authorities must take reasonable steps to ascertain the existence of latent dangers, which might reasonably be expected to exist

Mr Brodie's appeal was allowed on the grounds that the council had not taken reasonable steps in its inspections of the bridge to look for dangers that might reasonably arise. Mrs Ghantous’ appeal was dismissed on the grounds that there was no negligence on the part of the council because it was not unsafe for a person taking ordinary care.

As a result of this decision, highway authorities and councils will be liable in negligence where they have failed to take reasonable steps to construct, repair or maintain a footpath or road to the detriment of pedestrians and road users. It is likely that we shall see an upsurge in maintenance programs.