Councils have extensive liability protection under Part 5 of the CLA.
Information contained in records which prima facie assists a plaintiff’s case can be countered by oral evidence which explains, or expands on, that information.
In Mansfield v Great Lakes Council (2016) NSWCA 204 (‘Mansfield’s case’) the plaintiff was driving a truck along a single lane country road when, as he drove across a culvert, the bank of the left side of the road gave way and the truck rolled over. The plaintiff claimed that the injuries he suffered were caused by the negligence of Great Lakes Council. The plaintiff claimed that the Council was negligent for failing to:
- build a sufficiently large culvert with head walls which could have prevented the erosion and collapse of the embankment;
- place signs:
- warning that ‘the culvert was narrow, or narrower than the rest of the road leading to it’;
- imposing a load limit ‘to restrict and/or warn drivers of heavy vehicles not to traverse the culvert.’
The Council relied on sections 43A and 45 of the CLA.
Section 43A of the CLA provides that with regard to allegations based on a public authority’s exercise of, or failure to exercise, a special statutory power conferred on it, “any act or omission involving an 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”.
Section 45 of the CLA provides, broadly speaking, that a roads authority is not liable 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.”
The plaintiff had traversed the road ‘some months earlier’ without problem. Maintenance work was undertaken on the road around 6 months before the accident. At trial a witness gave evidence that before and after that maintenance work was done she had complained to the Council about the state of the culvert and requested that it be fixed. Around 3 months before the accident the Council inspected the road and a defect was noted which was given a score of ‘medium priority’. At the trial the Council’s assistant engineer gave evidence that he undertook that inspection and that the defect with the culvert related to the need to slightly straighten the culvert and that the defect was not a safety issue and therefore it was not given a high priority. Around a week after the accident the Council replaced and widened the culvert. It also installed head walls on either side of the culvert. The Council’s assistant engineer gave evidence that the culvert was enlarged to allow for overflow in a heavy rain event based on a Council engineer’s assessment after the accident.
The Court of Appeal said that the appellant needed to establish that the inspections carried out by the Council’s assistant engineer ‘were so manifestly defective that no roads authority could properly have thought them adequate’. The Court of Appeal held that the plaintiff failed on this point noting that:
- during cross-examination no attempt was made to seek any concession from Council’s assistant engineer that his conduct was inadequate ‘let alone grossly inadequate’;
- the plaintiff’s traffic engineering expert expressed no opinion “to support a conclusion of manifest unreasonableness for the purposes of section 43A”.
With regard to signage, the court stated that the plaintiff did not establish that he would not have driven along the road if the signage had been in place.
With regard to section 45 of the CLA the Court of Appeal said that:
- “on the broadest view of” “the class of officers whose knowledge might constitute knowledge of the authority” the Council’s receptionist “would not qualify”;
- “it was never squarely put” to the Council’s assistant engineer “that he knew of the risk which materialised.”
- “the trial judge was correct in concluding that, with respect to the failure of the Council to carry out road works, or even to consider carrying out road works, s 45 was engaged and the Council was not liable for the resulting harm”.
This case highlights the extensive liability protection afforded to Councils under the CLA and the importance of evidence.
Post by Joshua Faddy and Freida Stylianou