Posted on September 16, 2014 by Megan Hawley
Unreasonableness in Risk Management
It is often considered that it is difficult to have planning decisions set aside on the basis of ‘Wednesbury’ unreasonableness, that is, that the decision is so unreasonable that no reasonable authority could ever have come to it (Associated Provincial Picture Houses Ltd v Wednesbury Corporation  1 KB 223). A similar formulation of words is used in the Civil Liability Act 2002, and the Court of Appeal has recently considered them in Curtis v Hardin Shire Council  NSWCA 314.
The case was an appeal against a decision of the Supreme Court in respect of a road accident. At issue was the liability of the Council for the death of a driver whose vehicle slid on loose gravel left on the road after road works were completed. There were warning signs about the road works and the risk of chips to windscreens from the gravel, but no warning signs regarding the slippery road surface, and no sign warning drivers to reduce their speed.
Section 43A of the Civil Liability Act provides protection for public authorities when exercising a ‘special statutory power’ which is a power conferred by statute and of a kind which persons generally cannot exercise without statutory authority. Whilst the Court has previously expressed doubt about whether a Council erecting guide posts on the side of the road under s87 of the Roads Act 1993 is exercising a special statutory power ( see Bellingen Shire Council v Colavon Pty Ltd  NSWCA 34]), on the basis that any landowner could erect posts on its land, the Court of Appeal in this case was unanimous in its view that the erection of traffic control devices under the applicable roads safety legislation was the exercise of a special statutory power.
Section 43A provides that an act or omission which involves the exercise 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 could properly consider the act or omission to be a reasonable exercise of, or failure to exercise its power.
The Court emphasised that it was not the Court’s opinion of what was reasonable that was relevant to the s43A but rather whether there was evidence that any authority could have considered the power to be properly exercised.
The evidence was that the Council’s works manager had adopted Traffic Control Plans (TCPs) based on the generic TCPs in the RTA’s Traffic Control at Work Sites Manual, but had altered the signage required from that specified in the generic TCPs.
The generic TCP 56 was designed for roads with a speed limit of less than 60kmh and mandated that a slippery road sign be displayed until all loose aggregate was removed. TCP 56 directed use of the generic TCP 353 if the speed limit exceeded 60kmh, and there was average daily traffic in excess of 5,000 vehicles. TCP 353 also mandated reduced speed signs.
The road in question had a speed limit of 100kmh, but not more than 5,000 vehicles per day, and therefore TCP 353 did not strictly apply. Therefore there was some discretion regarding whether a reduced speed sign was necessary. However, the slippery road sign was mandated.
The TCP adopted by Council did not include a requirement for either a slippery road sign or a reduced speed sign on the relevant road, and those signs were not displayed at the time of the accident.
Mr Coffey, a senior Council officer at the time of the accident, who had experience in traffic control signs and who was also at the time of the hearing a principal engineer with the ACT government, gave evidence that the decision not to erect a restricted speed sign and a slippery road sign at the site of the accident made no sense to him and that driving on loose gravel was like ‘walking on marbles’.
The Court found that Mr Coffey’s evidence was the only evidence which could be considered to express a view about whether any Council officer could reasonably consider it proper not to erect the relevant signs.
On the basis of his evidence, the Court found that the decision not to erect slippery road and reduced speeds signs was a decision that no reasonable authority could make. Council therefore did not have the protection of s43A.
Councils have many statutory protections available to protect them from civil liability in the exercise of their functions. What this case demonstrates is the importance of ensuring, when exercising those functions, that any guidelines available regarding the manner in which those powers should be exercised are complied with, unless there are very cogent reasons for departure from those guidelines. In any proceedings under the Civil Liability Act, those guidelines may well be evidence of how a reasonable authority would exercise the power, and to justify a departure will require evidence of why it is reasonable to do so in the circumstances.