A recent decision of Justice Jarro in the Brisbane District Court highlights that local councils and road authorities can still be found liable in negligence for known defects in roads under their control.
Then 58-year-old Paula Tait was riding her motorcycle in a recreational group on Sunday, 25 September 2016 when she struck a large pothole/washout at the Mittengang Creek floodway (‘the floodway’) whilst heading south on the Leichhardt Highway approximately 47 km north of Goondiwindi.
At all relevant times, the Goondiwindi Regional Council (‘the Council’) was responsible for the repair and maintenance works of the section of highway where the accident occurred pursuant to a Road Maintenance Performance Contract between it and the State of Queensland.
At the time of the accident, Ms Tait was riding with friends in a staggered formation. The accepted evidence at trial was that the group was riding in a sensible, staggered formation (as opposed to a single file formation) at an appropriate speed.
The court accepted that between 13 and 20 September 2016 there was extensive rainfall which caused flooding and isolation to Western Queensland communities, including parts of the road network for which the Council was responsible.
On 19 and 20 September 2016, a representative of the Council’s road patching crew drove across the floodway, noting that it was covered by receding floodwater.
On 21 September 2016, the Council’s technical officer notified various council employees and representatives that there was water over the highway at several locations near the floodway and there were significant potholes in various locations including the highway.
On 22 September 2016 the technical officer and the Council’s district engineer attended a drainage issue further north of and necessitating them to cross the floodway and in doing so took various photographs of the floodway showing the sealed surface of the roadway had begun to strip away and potholes were beginning to develop.
On that same morning, the Council’s technical officer sent an email to various council employees and representatives advising the highway was open, there was low depth water present over the highway in various locations and there was pavement damage on the floodway and advising them to ‘travel to conditions’
Upon his return to Goondiwindi later that morning, the Council’s district engineer contacted a supervisor of the Council’s road patching crew and advised him that inspection and potential (warning) signage may be required. The accepted evidence was that the Council had temporary warning signage advising ‘rough surface’ and ‘reduce speed’. That signage was erected by members of the Council’s road patching crew on 22 September 2016 on both the northern and southern approaches to the floodway. The legs of the temporary warning signs were not secured by sandbags or any other weighted material as the Council ‘didn’t have any’ at the time, the presumption being drawn they had been utilised and exhausted due to the recent flood activity.
Between 22 and 24 September 2016, representatives of the Council’s road patching crew visited the floodway on three occasions, noting the floodway had been washed out resulting in potholes causing the floodway to be dangerous to traffic, necessitating warning signage.
On Sunday, 25 September 2016 Ms Tait was injured when she struck a washout upon the floodway. She had been third in a staggered formation of motorbike riders, all of whom gave evidence to and were accepted by the court as riding safely in the circumstances.
Several of the riders who were riding with Ms Tait at the time of the accident gave evidence that there was no temporary warning sign as they approached the floodway heading southbound. Several of those riders gave evidence that following the accident and whilst Ms Tait was being provided with treatment at the accident scene, a motor vehicle stopped and reinstated the temporary warning signage which appeared to have been blown over by wind or buffeting from heavy vehicle traffic.
The Council pleaded that it was immune from liability pursuant to section 35 of the Civil Liability Act 2003 (Qld) (‘the Act’), having regard to its required functions, financial and other resources. Further, the Council submitted that section 37 of the Act (restriction on liability of public or other authorities with functions of road authorities) provided complete immunity from liability for Ms Tait’s injuries.
His Honour found that the exclusions under sections 35 and 37 of the Act did not apply, having regard to the Council’s obligations with respect to the highway and floodway under the Road Maintenance Performance Contract and the Councils actual prior knowledge of the damage to the floodway sealed surface causing it to strip and the commencement of the development of potholes in the days leading up to Ms Tait’s accident.
Evidence was provided by council employees at trial confirming the Councils knowledge of the degradation of the road surface on the floodway, the possibility of temporary warning signs being blown over by wind or heavy vehicular traffic unless weighed down by sandbags and the use of the highway by vehicles (including heavy vehicles) between the date of the heavy rainfall activity and the date of Ms Tait’s injury, which was likely to cause degradation in the road surface.
His Honour accepted the evidence of Ms Tait and several of her co-riders that if they had seen temporary signage warning them of dangerous road conditions and/or to slow down they would have actively braked and taken other precautionary actions and that those actions would more likely than not have resulted in Ms Tait not being injured.
The Council also alleged that Ms Tait was contributorily negligent in relation to her injuries to the extent of 80% (thereby alleging it was only 20% liable).
His Honour found that Ms Tait in no way contributed to her own injuries as she was riding in a staggered formation, within the speed limit, following the rider in front of her at a safe distance and was keeping a proper lookout.
His Honour assessed Ms Tait’s damages at $304,138.11.
The case highlights that road authorities (including Regional Councils) can still be found liable for their failure to maintain roadways (and in our view by extension other public thoroughfares such as walkways) where they have prior actual knowledge of the particular risk, the materialisation of which results in harm.
In Ms Tait’s case, the lack of a few sandbags has resulted in a liability of over $300,000 for the Goondiwindi Regional Council.
For those that are interested, you can read the full case here.
Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).