Statutory defences – a win for public authorities5 April 2016 | Public & Product Liability
The Civil Liability Act 2002 (NSW) (the CLA) contains complete and partial defences for public and other authorities when civil claims are made based on the exercise, or failure to exercise, a statutory power or function. The recent judgement in Bankstown City Council v Zraika; Roads and Maritime Services v Zraika  NSWCA 51 considered the operation of those defences with respect to Bankstown City Council (Council) acting as a planning authority and a state authority acting as a road authority. Of particular interest was the Court’s application of section 43A of the CLA which is mirrored in other jurisdictions in Australia.
On 16 November 2002 Sharif Zraika (a foetus) was injured in a motor vehicle accident at the signalised intersection of Woodville Road and Tangerine Street in Villawood, New South Wales. Sharif’s mother was a passenger in a vehicle driven by his father (Mr Zraika).
Mr Zraika’s vehicle was travelling north in the far left hand lane on Woodville Road. That lane was marked “left turn only”. Contrary to the road markings, Mr Zraika travelled straight ahead in that lane through the intersection passing 2 lanes of banked up traffic to his right at approximately 65km/hr. As he did so, he collided with a utility vehicle driven by Mrs Walsh.
Mrs Walsh had exited the driveway of a factory and was driving very slowly across the intersection in a straight direction into Tangerine Street. She did so contrary to a “left turn only” sign (which she did not see).
Neither Mrs Walsh nor Mr Zraika could see the other’s vehicle until just prior to the collision due to the presence of stopped traffic at the intersection.
Sharif sued Mr and Mrs Walsh (the owner and driver of the utility vehicle), Mr Zraika, Council and the Roads and Maritime Services (RMS). Mr & Mrs Walsh admitted breach of duty.
Council was the local government authority responsible for town planning. In 1997 it exercised its statutory powers as a consent authority and approved a factory re-development on land adjacent to Woodville Road. It was the driveway of this factory from which Mrs Walsh exited when she proceeded into the intersection.
The trial judge found that Mr & Mrs Walsh, Council and RMS were in breach and liable to Sharif. Mr Zraika owed a duty but had not breached that duty. In relation to Council, the trial judge held that as the planning authority, Council did owe a duty of care to road users. Although the imposition of a duty of care was novel, it was warranted given that Council’s statutory power required it to have regard to public safety.
Council had breached its duty of care as no planning authority properly considering traffic and safety matters raised by the development could have decided to leave traffic movements into and out of the driveway unrestricted. A hypothetical reasonable authority exercising Council’s statutory power would have imposed conditions requiring the driveway to be exit only and would have taken steps to ensure that the driveway was “left turn only” by installing a suitably offset driveway supplemented by an island requiring drivers to turn left onto Woodville Road.
The trial judge held that Council could not rely on s 44 CLA as a defence to the claim. The alleged failure to impose a particular condition (requiring drivers to turn left on exiting the factory complex), when granting development consent was not a failure to which s44 CLA applied.
The trial judge held that RMS was in breach of duty for failing to install ‘’left turn only’ signs at the exit of the factory driveway within weeks of conducting a traffic survey in response to safety concerns raised by a member of the public.
The Court of Appeal overturned the finding of no liability on the part of Mr Zraika. The findings of liability against Council and RMS were also overturned on appeal.
The Court of Appeal agreed with the trial judge that s44 CLA did not operate to provide Council a defence to the claim because this was not a case where there was a failure to exercise or consider exercising a function – Council did in fact exercise a function, albeit subject to conditions.
However, the power exercised by Council to grant consent conditionally was a ‘special statutory power’ conferred on it by s 43A (2) CLA and this altered the standard of care applicable to Council. Section 43A effectively confers a qualified immunity on a defendant because of the higher standard of care imposed. Where s 43A applies, the court must look at the matter having regard to what the authority in question could properly consider a reasonable exercise of the power. By framing the inquiry in terms of what the “hypothetical responsible authority” would have done, the trial judge applied a different test, which did not meet the heightened standard imposed by s 43A.
Applying the facts to the heightened standard of care, the Court of Appeal noted there was uncontroversial evidence of a number of locations in Sydney at which signalised driveways enter traffic signals without turning restrictions imposed. There was no evidence to suggest that all such intersections were so negligently designed as to satisfy the elevated s43A standard.
The trial judge erroneously placed significant weight on a letter from Senior Constable Bovill (Bovill) to a Council Development Committee which recommended that the driveway be an exit only. The letter did not recommend that the traffic exiting the driveway be required to turn left. Since Bovill had sufficient experience to warrant him being on a Council Development Committee, his failure to identify the issue worked against a conclusion that no authority could properly consider the failure to insist upon a left turn only condition to be a reasonable exercise of power.
Furthermore three traffic experts agreed that a sign requiring motorists leaving the factory site to turn left only was the minimum treatment that ought to have been (and was) in place. Whilst each of the experts also agreed that the construction of an island would have been better, they emphasised that their opinion in that regard was based on hindsight. The evidence fell short of establishing that no local Council could properly have approved the development application without imposing a mandated left turn from the southern exit of the driveway. Even if Council owed a duty of care, there was no breach of that duty in light of the heightened standard of care required by s 43A CLA.
In relation to RMS, the Court of Appeal held that the factual basis for the finding of breach of duty on the part of RMS was not made out. While it was true that RMS did decide to make some changes to traffic control at the intersection following the traffic survey, those changes did not include the installation of a further “left turn only” sign on the median of the driveway. The decision to erect the additional sign was prompted by the plaintiff’s incident.
Overview and lessons for public and other authorities
In summary the New South Wales Court of Appeal held that the s 44 CLA defence was not available where there is an allegation of failure to impose a particular condition in the exercise of a statutory power in circumstances where another condition was imposed. However, importantly, local authorities can rely on the further protection offered by s 43A CLA where special statutory powers are exercised. This section imposes a higher standard to determine whether a duty of care has been breached and effectively confers a qualified immunity on a defendant. In determining breach the court is required to consider what the authority in question could properly consider a reasonable exercise of the power.
Care should be taken to ensure that the necessary evidence is presented to the court on what an authority could properly consider a reasonable exercise of the relevant power. Such evidence is likely to include evidence from experts, evidence from any applicable bodies such as development committees together with evidence of practices adopted by other public authorities in similar circumstances.