Category

Negligence

Negligence

What are the Pitfalls of Suing a Council or Roads Authority for Negligence?

In life, accidents happen. But where you have an accident that results in an injury, and the cause of the accident was the negligence of a local council or roads authority, it’s a natural reaction to want to seek redress from them in the form of compensation.

This situation can commonly arise, for example, where a road or a footpath, a bridge or a walkway, has not been built or maintained to an appropriate standard by the local authority and causes an injury. People trip on uneven footpaths, fall down hills which should have been fenced off, or are injured in cars that crash due to sub-standard roads.

But how easy is it to sue a local authority for such examples of negligence? The answer is: difficult, but not impossible.

Since the passing of the Civil Liability Act (‘CLA’) in NSW, there are more hurdles for someone to prove that a local authority such as a council is liable for your injury have been. This article looks at how the legislation can provide immunity from liability for public authorities as well as some of the factors a court will take into account in assessing negligence claims, citing some recent cases.

How the CLA works to protect public authorities

In NSW, the CLA raises the threshold required for a member of the public to prove a public authority has been negligent.

Section 43A of the Act provides that a public or other authority’s exercise of, or failure to exercise, a special statutory power does not give rise to civil liability 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.’

This is an objective test, as clarified in the 2014 NSW Court of Appeal case of Curtis v Harden Shire Council where Basten JA said: ‘the state of mind of the authority is not identified as one which it would or should hold, but rather one which no authority could hold.’

This hurdle works in conjunction with the protection against claims of negligence offered to public authorities such as councils (and in their capacity as roads authorities) offered by Section 45 of the CLA:

‘A roads authority is not liable in proceedings for civil liability … 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. [Italics added]

This means that an injured party needs to produce evidence that an officer who had the appropriate authority within the council did have ‘actual knowledge’ of the risk that caused the accident. This can be a high bar to get over.

How the courts have dealt with this issue – recent case examples

In Mansfield v Great Lakes Council [2016] NSWCA 204, Mr Mansfield sustained injuries after he rolled his heavily loaded truck into a water course when the embankment on a single lane track road gave way. He claimed that Great Lakes Council, who were responsible for the care and maintenance of the road, were responsible for his injuries in that they had been negligent in failing to build a sufficiently large culvert with head walls that could have prevented the erosion and collapse of the embankment.

The Court of Appeal upheld the protections offered by the CLA to public authorities, finding that the standard of reasonableness provided for in s 43A of the Act must be ‘manifest’. This means the evidence must demonstrate that an act or omission was so unreasonable that no roads authority could properly consider it to be a reasonable exercise of, or failure to exercise, its power.

Furthermore, the Court also found the Council immune from liability for failing to carry out road works based on the protection in s 45 of the Act. This was because the evidence had failed to establish that any Council officer, with the requisite authority, had actual knowledge of the particular risk that materialised in these circumstances.

The case confirmed that the protections for public authorities such as a local council acting as a roads authority are high hurdles to overcome for those seeking compensation.

In Oberlechner v Hornsby Shire Council [2017] NSWSC 23, however, Mr Oberlechner succeeded in his claim that Hornsby Shire Council in Sydney had been negligent after he fell into an unfenced culvert and sustained substantial injuries. The plaintiff was awarded $380,640 in damages when the Supreme Court of NSW found the Council could not rely on the ‘actual knowledge’ protection of s 45 of the CLA.

The Court found, in fact, that multiple people with requisite authority within the council had actual knowledge of the risk posed by the culvert over a period of 30 years since it had been built, and failed to act on his knowledge. The Council was therefore negligent.

Speak with expert legal professionals

It is by no means easy to take on any public authority when trying to prove their negligence has resulted in your injury. This is not only because of the protections offered to such authorities under s 43 and 45 of the CLA, but because it is usually one individual taking on a large, well-staffed organisation.

BPC Lawyers is a specialist Sydney personal injury law firm with years of experience helping individuals pursue negligence claims against larger organisations such as public authorities. If you believe your injury is the result of negligence by a local government or roads authority, get in touch today for a free case evaluation on 1800 431 579.

Contributory Negligence

What is Contributory Negligence?

In many personal injury claims, the facts are clear-cut.  One person is injured as a result of the fault of another person. If the person who caused the injury was careless or reckless, it may be legally classified as negligence. The person at fault must compensate the injured person for their losses.

But what happens if the person who got hurt also did something that contributed to the accident? This is where the legal concept of contributory negligence comes into play.

A complete or partial defence

The defendant will often raise the issue of contributory negligence and allege that the injured party was partially or largely responsible for the accident.

Let’s consider the following scenarios:

  1. A group of university students is playing Frisbee in a small park, and one of them throws the disc a bit too hard. Another student chases it onto the road without checking for oncoming traffic and is hit by a speeding car. The student, who sustains a broken leg and other injuries, sues the driver.

Here, the driver and student are both negligent. So the only issue for the court to decide is the extent to which the student’s negligence contributed to his injuries. This will determine how much compensation is awarded.

  1. A group of university students is playing Frisbee in a small park near a busy road. One of them throws the disc a bit too hard and his friend chases it onto the road without checking for oncoming traffic. The student who chases the Frisbee is hit by a car and sustains a broken leg and other injuries. However, the driver did not have time to avoid the student.

In these circumstances, the student who chased the Frisbee is entirely at fault. Therefore, the driver has no liability in connection with the accident.

Percentage of fault

The court will determine the extent of the contributory negligence by assessing the percentage liability of each party.  For example, in the first scenario detailed above, a court might determine that the injured student was 25% responsible and driver 75% responsible.  Accordingly, the damages payable would be reduced by 25%.

How compensation is awarded when there is a finding of contributory negligence

Before the introduction of the Law Reform (Miscellaneous Provisions) Act 1965, an injured party that was guilty of contributory negligence would be prevented from obtaining any compensation.

Since that time, the amount of compensation awarded is usually reduced by the same percentage as the plaintiff’s negligence. In other words, if a court assesses a plaintiff’s contributory negligence at 40%, the compensation awarded reflects a 40% reduction; if a court assesses the plaintiff’s contributory negligence at 50%, the compensation awarded is half of what would have otherwise been awarded, and so forth.

However, it is important to note that the specific rules addressing liability for contributory negligence are now detailed in each Australian state or territory’s relevant legislation.

Proving contributory negligence

Contributory negligence is a defence and therefore it is up to the defendant to prove that the plaintiff was partly to blame for the injuries that were suffered.  That is, the defendant must prove that the plaintiff failed to take reasonable precautions that would be exercised by anybody else in the same circumstances.  The defendant must prove that it was more likely than not that the injured party failed to take those precautions.

Criminal conduct and contributory negligence

All of this is well and good, but what happens if someone was injured while they were intoxicated? Or worse yet, what happens if they were the injured driver in a drink driving accident that also injured someone else?

In NSW, the answers to both questions can be found in the Civil Liability Act 2002 (CLA). It allows for a presumption of contributory negligence in any situation where an injured plaintiff was intoxicated. The act stipulates that compensation awarded should automatically reflect a 25% reduction, or a greater percentage determined by the court to be appropriate in the circumstances of the case, such as a drink driving matter.

In general, if someone gets hurt whilst committing a crime, a court can refuse to award any compensation whatsoever. However, if the court deems that too harsh, it also has the discretion to award some compensation.

Kids and contributory negligence

Earlier, we discussed a scenario in which a university student contributed to his own injury by running onto the street without looking. But what would happen if a young child did the same thing with the same outcome?

Children can be guilty of contributory negligence.  The law requires an assessment of what actions a person in the plaintiff’s circumstances, should have taken.  Therefore, the court will not usually find that a young child is guilty of contributory negligence.

If there is a finding of contributory negligence, any reduction of compensation is based on the child’s awareness and understanding of the situation, and how his or her actions contributed to it. In this context, it is important to note that a child of a certain age is expected to have the same awareness and understanding of a situation and his or her actions, as peers in the same age group.

If you have questions or concerns, we are here to help

If you were involved in an accident and have questions or concerns about contributory negligence, getting the right legal advice is critical. Contact us for a consultation and assessment to see if or how contributory negligence may affect your case today on 02 8280 6900 or info@bpclaw.com.au

When is an accident partially your fault? Contact BPC Lawyers.

When is an accident partially your fault?

Contributory Negligence

Where the Court considers that the defendant has breached its duty of care to an injured plaintiff but that the injured plaintiff was partly responsible for the injuries, damages payable will be reduced in accordance with the proportionate of liability of each party.  

The Courts have historically understood however that the assessment involves more than a comparison of culpability and that the whole conduct of each party must be considered. The leading case is Podrebersek –v- Australian Iron & Steel Pty Limited in which the court said: 

An apportionment between the plaintiff and the defendant of their respective share in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man … and the relative importance of the act of the parties in causing the damage … it is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.”  

Subsequently, the Court of Appeal in Talbot-Butt –v- Holloway said: 

“The culpability of the plaintiff and the defendant must take proper account of the fact that … the plaintiff’s conduct posed no danger to anyone but herself, while the defendant who was driving (the vehicle) … was in charge of a machine that was capable of doing great damage to any human being who got in its way.”  

As a result, the Courts have generally taken the view that a pedestrian who departed from the reasonable standard of care was less culpable than the driver whose departure may have been of equal measure because of the damage which could be inflicted by the car.  

Justice Baston however has considered the doctrine of contributory negligence in view of the Civil Liability Act 2002. The Court in Cosmidas noted that because the legislation required a consideration of the probability that harm would occur if care were not taken, the culpability of each party is no different merely because that party was in a position to cause greater harm.  

Subsequently, the Court of Appeal appears, at least in one instance, to have returned to the pre-Cosmidas approach and it remains to be seen whether in fact the Civil Liability Act has had an impact on the manner in which contributory negligence is to be assessed. 

Scott Hall-Johnston 

BPC