Risky Roads - What is Council's Liability as Road Authority?

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Published by Preston Law on 10/12/2019

The recent District Court decision of Tait v Goondiwindi Regional Council offers a reminder of what a local authority’s obligations are as a road authority, and where Council might be found liable.

The General Rules

Council has a duty of care to road users, in Council’s capacity as road authority, for local authority roads in its local government area.

As a matter of general law, if a person is injured, the entity with the duty of care to that person will be found to be negligent if:

  • the person with the duty of care had a duty to avoid the harm;
  • the harm was reasonably foreseeable;
  • the harm was linked to the person’s breach of the duty (the concept of “causation”);
  • the harm was not too remote a consequence of the breach that the entity with the duty should not be found liable (the concept of “remoteness”).

Applying these general law principles:

  • the law recognises Council has a duty of care to road users. The content of that duty involves maintaining roads in a trafficable condition;
  • it is reasonably foreseeable that a breach of that duty could result in an accident;
  • any injury sustained by someone who uses a poorly maintained road is causally linked to Council’s breach of the duty;
  • it is not too remote to expect that someone who uses a poorly maintained road could suffer an accident.

The Civil Liability Act

The content of Council’s general law duty of care is modified by the Civil Liability Act 2003 (“CLA”).

Section 37 of the CLA specifically modifies the liability of road authorities to say that if Council is sued for negligence because of its failure to maintain or repair a road, it will be able to successfully defend that proceeding in reliance on section 37, unless:

  • Council was specifically on notice of the repair required; and
  • the injury was a reasonably foreseeable consequence of Council failing to carry out the repair.

In addition to section 37, section 35 of the CLA allows Council to effectively raise as a defence to any negligence action the fact that it did not have the financial or human resources to carry out the identified road repairs. 

That strategy will be effective only to the extent that a Court finds that it was reasonable for Council to have adopted that position.

The Case

Tait’s case has a significant impact on how the CLA will be interpreted to limit Council’s liability.

In that case, the Court did not accept the Council’s arguments about the extent to which sections 35 and 37 offered it protection.

Tait’s case was about a person who suffered injury by hitting a pothole or wash out.  While the Court accepted that Council was not necessarily aware of the particular pothole that caused the injury, the Court said that because Council was aware of the general condition of the road and the deteriorating weather, Council did not enjoy the protection of section 37.

The case also considered circumstances where Council installed temporary signage warning road users of a hazard, but the signage blew down.  In those circumstances, the Court said that:

…once Council erected the temporary signage it was under an obligation to ensure the signage was properly secured.  It failed to do so and thereby breached its duty to road users by failing to take measures reasonably open to it to secure the signs as a means of warning road users.

The total claim awarded by the District Court again Council was more than $300,000.

The Story is Not Over

On 28 November 2019 the Council filed a notice of appeal in the Court of Appeal, so watch this space.

The Upshot

The Tait case suggests that Council’s obligations as a road authority remain high, and its ability to rely on sections of the CLA to reduce its liability are limited in some significant ways.

Cases on negligence are always highly fact-dependent.  For further advice on a particular factual scenario, please contact Julian Bodenmann on 07 4052 0717 or jbodenmann@prestonlaw.com.au.

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