Court of Appeal affirms public authority immunity provisions in NSW CLA11 October 2016 | Public & Product Liability
- Liability of Council as road authority
- Whether Council immune from liability under s 43A or 45 CLA (NSW)
On 1 January 2010, Mr Mansfield drove his fully laden water truck along Greens Crossing Road. As he crossed over a culvert in the road, the left hand side of the bank gave way. His truck rolled over into the watercourse and he was injured.
The Great Lakes Council (Council) was the roads authority responsible for the maintenance of the culvert, and was empowered to carry out road work pursuant to the Roads Act 1993. It had most recently carried out maintenance works to the Greens Crossing Road six months before the incident.
Mr Mansfield sued the Council claiming that its negligence caused his harm as the culvert was not sufficiently large and did not have head walls. He asserted that the Council also should have erected a sign either warning of the narrow culvert or imposing a load limit. The Council relied on the immunity from liability provisions in the NSW CLA.
The Decision at Trial
The trial judge held that Mr Mansfield failed to establish that the Council’s failure to carry out road work was unreasonable to the standard required by section 43A CLA (NSW) namely that the act or omission complained of was so unreasonable that no road authority could properly consider it to be a reasonable exercise of the relevant power. The trial judge also held that the failure to erect road signage did not make the Council liable because the evidence did not support the argument that the signs would have been effective in preventing the accident. Mr Mansfield appealed the trial judge’s decision concerning the application of the statutory immunity and causation arising from the lack of signage.
The Decision on Appeal
The Court of Appeal held that the trial judge was correct not to be satisfied that the failure by the Council to replace the culvert with a larger pipe and head wall was an omission which was so unreasonable that no roads authority could properly have considered it to be a reasonable exercise of power. The evidence led by Mr Mansfield failed to establish the requisite lack of reasonableness. In relation to the causation point, the Court of Appeal upheld the trial judge’s decision that the proposed road signs would not have deterred Mr Mansfield from using the road.
The Court of Appeal also upheld the trial judge’s decision that the Council was entitled to rely on the special protection provided for road authorities against a failure to carry out road works in the absence of “actual knowledge of the particular risk the materialisation of which resulted in the harm”, pursuant to s 45 CLA (NSW).
Implications For You
This decision is a reminder of the protection afforded by the NSW CLA provisions applying to Councils. These protections are contained in each state’s CLA legislation, although the level of protection does vary from state to state. In order to satisfy the court that a public authority is liable, a plaintiff must provide compelling evidence that can overcome the hurdles created by these provisions.