Appeal outcome – Local government still liable for failure to secure warning signs

In our inaugural edition of The Local Law, we highlighted the Queensland District Court decision of Tait v Goondiwindi Regional Council [2019] QDC 208 (see here). In that decision, Goondiwindi Regional Council (Council) was found liable in negligence for failing to properly secure warning signs on rain-affected parts of the Leichhardt Highway (Highway), which caused them to blow over. This left Ms Tait, a motorcyclist, unaware of the damaged conditions of the Highway, and Ms Tait lost control of her motorcycle across the affected Highway and suffered serious injuries.

As a refresher, the trial judge found that Council had actual knowledge of the damage to the Highway. This finding overcame the usual exception found in section 37 of the Civil Liability Act 2003 (Qld) (CLA). Section 37 protects a public authority (including a local government) from liability for failure to repair a road or keep a road in repair, unless at the time of the alleged failure, the authority had actual knowledge of the ‘particular risk, the materialisation of which resulted in the harm’.

Council appealed the Court’s decision however, on 5 June 2020, the Queensland Court of Appeal unanimously dismissed all grounds of appeal with costs.

Appeal

The decision was appealed by Council on a number of grounds, although we discuss in this article two key grounds most relevant to public authorities.

First, Council argued that the trial judge made no finding on the existence and content of Council’s duty of care to warn users of the Highway, asserting that this was a necessary element before liability could be found. However, the Court found that the trial judge did in fact make a finding on the scope of Council’s duty, being a duty to maintain roads for which it was responsible by fixing defects in a timely and efficient way, and to maintain the roadwork to a safe standard for travelling public. Taking steps to warn motorists was part of Council’s duty to maintain.

Secondly, Council argued that as it did not have actual knowledge of the particular pothole which caused Ms Tait to lose control of her motorcycle, the exception in the CLA should apply.

The Court rejected Council’s argument that it was protected by section 37 because the ‘particular risk’ in question was not the particular pothole, as Council alleged, but the risk of personal injury of road users from the surface of the road being, or becoming, unfit for the passage of vehicles at what would ordinarily be a safe and lawful speed. The trial judge had found that Council had knowledge of this risk, as evidenced by the fact that it had erected the warning signs.

Council also contended upon appeal that, even if the signs had not blown over and were visible by road users, it would not have made a difference to the way in which Ms Tait rode that day. This argument was rejected, as evidence had been accepted that Ms Tait would have reduced her speed and been able to avoid the pothole, had the warning signs been visible to her.

Key takeaways

While the trial judgment and appeal largely turned on its facts, it provides helpful guidance regarding the scope of protection afforded by the CLA to public authorities. Those protections are not absolute, and can be wholly lost in circumstances of actual knowledge of the risks that are within a public authority’s control.

It is a salutary reminder to all public authorities to ensure best practices are developed and adhered to in order to minimise the risks of loss, damage or injury arising from negligent conduct, even where a public authority exception may ordinary apply. Please note that this decision may not be the last word on the issue. Council’s insurers are intending to apply for special leave to appeal the decision to the High Court.

Many thanks to Laura Sclavos, Graduate, for her assistance in putting together this article.

This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.