Posted on October 24, 2017 by Michael Levy and Stuart Simington

On the road again: scope of protection for councils under s45 of the Civil Liability Act 2002 expanded

In a recent decision of the Supreme Court of New South Wales, the special non-feasance protection for roads authorities in s45 of the Civil Liability Act 2002 (CL Act) was held to apply to a Council in respect of an RMS road under the Roads Act 1993 (Roads Act). The Council had ‘practical care, control and responsibility’ despite RMS being the relevant roads authority for the Road and could rely on s45 as a result.

Background

The plaintiff’s claim arose when she tripped and fell while crossing the Road and sustained injuries to her elbow and back.

She alleged that the fall and the injuries which she suffered were caused by the Council’s negligence in failing to adequately maintain the Road.

The Council denied that the fall caused the injury to the plaintiff’s back (having regard to her medical history of back problems) but more interestingly also denied any negligence on its part in reliance on s45(1) of the CL Act which provides:

A roads authority is not liable in proceedings for civil liability to which this Part applies 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 negligence  which the plaintiff’s claim was concerned with was the Council’s failure to repair the Road where she fell, it having control of that part of the Road and, as a result, owing her a duty of care.

The proper construction of s45 of the CL Act

In determining whether the Council could rely upon s45 to protect itself, the Court had to determine what the respective functions of the Council and RMS were, as roads authorities under the Roads Act.

Under s61 of the Roads Act, decisions as to what road works are to be carried out on a metropolitan main road (i.e. the Road) are exclusively the function of the RMS.

However,  based on the Council’s admission that although it was not the roads authority for the Road, it had “practical care, control and responsibility” for that part of the Road on which the plaintiff fell, it was inferred that the Council had assumed this responsibility from RMS under an agreement.

Having regard to the Roads Act, the Court considered that there was nothing which prevented such an agreement between Council and RMS, and upon the proper construction of that Act, such a construction produced a fairer and more convenient operation than a competing construction which would have prohibited such agreements (Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297).

The Court also said that there was:

 good reason for construing those…provisions …as permitting the entry of such arrangements. There are obvious resourcing and safety considerations which would make such arrangements desirable, consistently with the statutory objects [of s3 of the Roads Act.]

The finding was based on the fact that s253 of the Roads Act allows a roads authority (including in this case, RMS) to exercise a function by agents (including in this case, the Council) and that s71 of the Roads Act allows a roads authority to carry out road work on land other than public roads for which it is the roads authority if that land is “under its control”.

As RMS owned the fee simple in the Road (by virtue of s145(3) of the Roads Act), it was able to enter into the arrangement with Council under which Council assumed “practical care, control and responsibility” for the repair and maintenance of the Road, and s71 of the Roads Act allowed the Council to carry out road works on that Road.

That plaintiff’s claim was held to be a claim in respect of Council’s failure to undertake road work, as defined in the Roads Act and, as such, was a claim to which s45 of the CL Act applied.

As it was the Council’s control of the Road (which it has assumed from RMS by agreement) which gave rise to the duty of care on which the plaintiff’s case depended, the Court found that it could not be accepted that s 45 of the CL Act did not apply simply because the Council was not the roads authority for the Road. Council’s control of the Road (and its ability to decided whether or not to carry out road works) and the fact that it was a roads authority under the Roads Act, meant that the plaintiff’s claim was one to which s45 of the CL Act could apply.

Conclusion

As a result of the finding that s45 of the CL Act could be relied upon by the Council, the plaintiff had to establish that the Council “had actual knowledge of the particular risk the materialisation of which resulted in the harm”. The plaintiff was unable to establish this, and accordingly the Court concluded that the plaintiff’s claim against the Council in negligence should be dismissed.

The case provides clarity to councils who may have similar arrangements with RMS in respect of roads for which they are not the roads authority but for which they have agreed with RMS to take over “practical care, control and responsibility”. 

In such circumstances, by virtue of s71 of the Roads Act, it is clear that s45 of the CL Act can be relied upon to expand the councils’ protection from liability in negligence if the council has failed to carry out, or failed to consider carrying out road works on such roads.

The full decision can be read here.

Should you wish to discuss this case further, please contact Stuart Simington, Partner on (02) 8235 9704 or stuart.simington@lindsaytaylorlawyers.com.au

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