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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 (02) 8280 6900.