Posted on March 28, 2017 by Michael Levy
Opening the (flood) gates to liability for roads authorities
In a recent decision of the Supreme Court of NSW, a roads authority was found liable in negligence when a local resident, walking his dogs at night on a poorly lit roadside verge in a suburban area, fell over the obscured edge of an unfenced culvert and into the rocky drain three metres below. The plaintiff and the dogs sustained serious injuries as a result of the fall.
The Court held that section 43A and section 45 of the Civil Liability Act (‘CLA‘) were “the gates which the plaintiff must open before other more general provisions relating to liability [came] into play.” The plaintiff was successful in opening these gates and the Court ultimately awarded him more than $380,000 in damages.
We have previously blogged about the statutory protection in section 45 of the CLA and are often asked to advise Councils in relation to potential liability in negligence that they may have in their capacity as roads authorities.
This case is an example of when a Council’s failure to take action (and exercise a special statutory power) to address a risk of harm of which it had actual knowledge, has the effect that it will be unable to obtain the benefits of the protections in section 43A and 45 of the CLA.
Councils would be well advised to review the safety measures surrounding their own road assets to ensure that a failure to take corrective action in relation to risks of which they have actual knowledge, will not expose them to potential future liability in negligence.
Section 45 – Non-feasance protection for roads authorities
Section 45 of the CLA provides a protection for Councils, in their capacity as roads authorities, against claims of negligence in specific circumstances:
(1) 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. [Emphasis added]
For the purpose of section 45, the Court found that the Council was a “roads authority” and “carry out a roadwork” included erecting a safety fence along the edge of the culvert.
The crucial issue raised by section 45 was therefore whether the plaintiff had established more probably than not that the Council “had actual knowledge of the particular risk the materialisation of which resulted in the harm”.
The particular risk relevant in this case was the risk that someone might fall over the edge of the culvert and suffer physical injury.
The Court referred to the decision of North Sydney Council v Roman  NSWCA 27 at  as authority for the proposition that the actual knowledge of the Council had to come from those persons “who in fact have the function of carrying out roadwork, or of considering carrying out roadwork”.
The evidence established that there were multiple people in the Council who had “actual knowledge” of the particular risk posed by the unfenced culvert headwall. These people included:
- The Council officers who assessed the design of the headwall in 1978;
- The Council officers who reviewed the works-as-executed plans for the headwall in 1979 following its construction;
- The Council officers who would have inspected the headwall to ensure that Council was satisfied with its design when Council took ownership of it;
- The Council officers who had knowledge of the results of a surveys of Council’s assets conducted in 2000, 2006 and 2007 as part of the preparation of a formal asset management plan; and
- possibly by virtue of other Council employees (eg. those responsible for mowing the grass on roadside verges) who may have become aware of the risk when mowing the grass verge in the vicinity of the headwall and reported the risk to officers in Council’s roadworks department responsible for considering and carrying out roadworks.
Adams J at  found that “to know of the headwall…was to know of the risk it posed”. As such, it was not “necessary to name or identify [particular] individuals” who knew of the culvert and the risks it posed. It was enough to establish that there was a class of individuals with actual knowledge of the particular risk. Circumstantial evidence could be used to draw the inference that that class of individuals possessed the actual knowledge required.
Having found that there were classes of people who would have known of the risk, Adams J at  quoted Giles JA in Leichhardt Council v Serratore  NSWCA 406 as authority for the proposition that:
“It will often be the case that a plaintiff does not have direct evidence of a road authority’s knowledge of a risk. Like all facts, knowledge can be inferred from other facts, and if the inference is fairly available and the road authority calls no evidence to rebut it the Court can comfortably find knowledge.”
As a result, Adams J found that the Council could not rely on the protection in section 45 of the CLA.
Section 43A – Exercise of special statutory powers
The Court then considered whether the protection in s43A of the CLA could come to Council’s aid.
Section 43A of the CLA provides that public or other authorities may be able to avoid liability for negligence in specific circumstances:
…[A]ny 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. [Emphasis added]
For the purpose of section 43A of the CLA, the Court found that the Council was a “public or other authority” and that the erection of a fence along the verge of the road within a road reserve was a “special statutory power” because it could only be undertaken by or through the Council.
The question for the Court was therefore whether the failure to erect a fence “was in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider” failing to erect a safety fence “to be a reasonable exercise, or failure to exercise, its power”.
The Court stated that this test is “an objective one and is not to be determined by what most or some authorities might or might not do”. In answering the question posed in the statutory test, Adams J at  emphasised that the test “includes the crucially important qualifying adverb “properly”…[an omission does not become] a reasonable failure to exercise [a] power simply because that was a common practice.” Adams J then quoted Basten JA in Curtis v Harden Shire Council  NSWCA 314 in which His Honour had said at  that:
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. In other words, it envisages a range of opinions as to what might constitute a reasonable act or a reasonable failure to act but asks if no public authority properly considering the issue could place it within that range.
Evidence in relation to what a reasonable authority could properly consider a reasonable exercise of its power was provided by a consultant engineer, Mr Bewsher, who had many years of experience consulting the Council in relation to flooding and stormwater drainage infrastructure throughout its local government area. He gave evidence that it had been accepted practice for many decades prior to the plaintiff’s fall, for roads authorities to provide fences at the top of culverts of the height of the one into which the plaintiff fell, to ensure the safety of pedestrians and other road users. The cost of “ameliorating the risk was…inconsequential – a few hundred dollars and involving little labour.”
Council’s failure to fence the culvert was therefore found to be so unreasonable that no authority having the power to manage the safety risks of culverts to road users and pedestrians could properly consider the failure to fence the culvert to be a reasonable failure to exercise its power.
As a result, the Court held that Council could not rely on the protection in section 45 of the CLA.
Having “opened the gates” to other general provisions regarding liability for negligence, the Court found that the Council, had breached its duty of care under section 5B of the CLA and that there was no contributory negligence by the plaintiff under section 5R of the CLA.
Lessons to be learned
Councils should take heed of this decision and be proactive about managing the specific risks of harm of which they have actual knowledge associated with their roads infrastructure.
A failure to manage these risks may give rise to potential future liability in negligence if such a failure to address these kinds of risks, could not properly be considered a reasonable failure to exercise a special statutory power.
Should you require advice regarding potentially liability in negligence which your Council may be exposed to, please contact Stuart Simington, Partner on firstname.lastname@example.org or 8235 9704.
The full judgment can be read here.