Posted on March 27, 2012 by

Special statutory powers and risk of harm under the Civil Liability Act

On 9 March 2012 the NSW Court of Appeal delivered judgment in Bellingen Shire Council v Colavon Pty Limited [2012] NSWCA 34.

The case concerned the Council’s failure to install guideposts along a stretch of public road delineating the edge of road. The Council was the roads authority for the road within the meaning of the Roads Act 1993.

Colovon’s prime mover and tanker rolled down an embankment adjacent to a narrow section of a road near Dorrigo in New South Wales. The accident occurred when the edge of the road gave way. The edge was not part of the formed roadway but was was a soft section of built-up soil and loose material, which had been pushed to the side of the road during periodic grading work.

McLoughlin DCJ, at first instance, held that the accident was due to the Council’s negligence in failing to install guide posts along the road so as to delineate the edge of the formed surface of the roadway from the soft edge.

The Council, on appeal, contended that the trial judge:

• should have determined that the Council’s’s authority to install guide posts along the roadway was pursuant to a ‘special statutory power’ within the meaning of s 43A of the Civil Liability Act, which would have afforded the Council significant protection from liability, and
• erred in applying s5B of the Civil Liability Act to identify the relevant ‘risk of harm’.

Beazley JA delivered the unanimous judgment of the Court.

Special statutory power

Section 43A of the Civil Liability Act provides:

‘(1)   This section applies to proceedings for civil liability to which this Part applies to the extent that the liability is based on a public or other authority’s exercise of, or failure to exercise, a special statutory power conferred on the authority.

(2)   A special statutory power is a power:

(a)  that is conferred by or under a statute, and

(b)  that is of a kind that persons generally are not authorised to exercise without specific statutory authority.

(3)   For the purposes of any such proceedings, 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.

(4)   In the case of a special statutory power of a public or other authority to prohibit or regulate an activity, this section applies in addition to section 44.’

[Emphasis added]

The Council argued that its power to install guideposts derived from s87 of the Roads Act, which conferred a special statutory power within the meaning of s43A of the Civil Liability Act.

The Court ultimately decided that the issues relating to s43A had not been properly pleaded and therefore did not arise for determination. Nevertheless, the Court made some important remarks about the meaning and scope of s43A .

First, Beazley JA said that ‘there does not appear to be any rule that could or should be applied generally or uniformly to determine whether an entity acts pursuant to a special statutory power’.

Second, in relation to the Council’s argument concerning s87, Her Honour said ‘[I]n the present case the appellant owned the road and presumably had the rights of a property owner: see Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Limited [2009] NSWCA 263; 77 NSWLR 360 at [368] 435. If that is the case, it is difficult to see that the appellant’s entitlement to install guide posts is pursuant to a ” special statutory power “‘.

Identification of the risk of harm

Section 5B provides:

(1)   A person is not negligent in failing to take precautions against a risk of harm unless:

(a)  the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b)  the risk was not insignificant, and

(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.

The Council contended that there were two distinct risks involved on the facts, being:

• that a vehicle would drive over the embankment because the driver would misjudge where the edge was in the absence of guideposts, and
• the road would collapse beneath the weight of the vehicle.

The Council submitted that the second risk was the ‘relevant risk’ for the purposes of s5B and that there was no evidence that it was aware of the risk nor ought to have been aware of the risk.

The Court rejected this contention. Beazley JA said at [56]: ‘[T]his was not a case of the formed road having collapsed underneath the respondent’s vehicle. Rather, the soft edge, which was not delineated, collapsed.’

The Court held that ‘5B essentially enacts the common law principles relating to breach of duty’, particularly in relation to forseeability of risk.

Applying this approach, Beazley JA said at [58]: ‘[I]n my opinion, the relevant risk was of harm occurring by travelling on the unformed section of the road. It was foreseeable that the unformed section of the roadway would give way underneath a heavy vehicle just as it was foreseeable, given the narrowness of the road, that the wheels of a vehicle would travel too close to the edge.’

The Court dismissed the Council’s appeal with costs.