Councils and other authorities responsible for roads enjoy broad liability immunity for injuries caused by their otherwise negligent omission to keep their streets in good order and repair.
Whether a particular task that pavement crews are required to perform comes within a council’s road repair function – and therefore insulated against injury liability – was central to a recent appeal against a compensation order in favour of a motorbike rider injured while negotiating a flooded causeway in country Queensland in September 2016.
Paula Tait – a Goondiwindi local – was no 3 in staggered formation on her Yamaha XVS 1100 for the Sunday ride of about 400km conducted in bright sunshine after weeks of heavy rain.
There had been many signs along the route warning “rough surface” and “slow down” but the group of five had managed for the best part, to sustain 80 kph for the tour.
Heading south from Moonie on the Leichhardt Highway on their return to Goondiwindi, they approached the Mittengang Creek causeway, a 100m stretch of the road constructed to a lower height to allow floodwater to flow across.
Rounding a gentle bend and just as she passed a (permanent) “Floodway” sign, Paula saw the preceding motorbike suddenly become airborne and its rider also thrown into the air.
By now at about 40 kph and in thick dry gravel which made the motorbike harder to control, her front wheel descended into a deep 1 m long pothole, causing the motorbike to cartwheel end to end and catapult her into the air.
Lead rider Belinda Trehearn – circling back to warn the group after herself having narrowly avoided the hole – witnessed the mishap and saw Paula crash to the ground.
Paula sustained serious injuries to her back and left foot that hospitalised her for three weeks. She was unable to return to work until April 2017.
Others at the scene discovered a fallen over sign warning of the danger at the northern entry to the causeway displaying ROUGH SURFACE (black letters against a yellow background) and REDUCE SPEED (white letters against a red background).
Suspecting that those responsible for the road had been aware of the danger but had taken insufficient measures to warn of the hazard, Paula sent an injury compensation ask to the Goondiwindi Regional Council.
The council admitted it had responsibility – under a Road Maintenance Performance Contract (RMPC) with the Department of Transport and Main Roads – for the maintenance of the state-controlled highway and the causeway on which the accident occurred.
It refused compensation though contending that the circumstances were such as to accord it Civil Liability immunity for all injuries arising from any failure to keep the causeway in good repair.
Paula’s investigations revealed that in the week preceding the accident various council officers had traversed the floodway and had observed potholes that “were likely to worsen” and that the conditions “looked dangerous to road users”.
The floodway was inspected first hand by the council’s engineer on the Thursday before. He alerted the council’s pavement crew of the need for an inspection and “potential signage”.
The crew arrived and would have begun patching work immediately but were unable to do so because the floodwater had not receded sufficiently for them to use the materials they had aboard their truck.
They erected freestanding signs – those that were later discovered to have fallen over – on the grass verge beside the highway on the north and south approaches.
Because they had no sandbags with them they left the legs of the signs unsecured. Sandbags had been in high demand for use against rising floodwater in many places in the council’s area of responsibility.
The motorbike injury lawsuit came for determination before Judge Nathan Jarro in Brisbane’s District Court in August 2019.
Paula, a practice nurse at the Goondiwindi Medical Centre, the four other riders and various council personnel all gave evidence during the four-day trial.
After hearing from the council employees, His Honour concluded that the temporary signage had blown over at some time on the weekend before Paula’s accident.
The council contended its only duty was to perform maintenance once a defect reaches the “Upper Intervention Level” as per the RMPC and that because it did not know of risk posed by the pothole at the time of Paula’s accident occurred, an immediate maintenance response had not yet been triggered.
Judge Jarro pointed to other obligations in the RMPC and found that in fact it owed a duty “to fix intervention level defects and defects deemed to be a safety hazard in a timely and efficient manner and to maintain the road network to a safe standard for the travelling public”.
The council appealed against his decision that it had breached that duty.
It argued that CLA section 35 tempered the expectation of an immediate maintenance response against its financial resources and demands from other departments and constituents.
It also asserted CLA section 37 grants immunity for failing to repair or inspect a road to decide whether or not it needed repair if at the time of injury it had no actual knowledge of the particular risk relating to the pothole.
Justice Phillip Morrison in delivering the lead judgment observed that the council’s appeal submissions failed to take into account the numerous findings made by the trial judge as to the actual knowledge of council officers of the deteriorating state of the floodway, that potholes were beginning to develop and that conditions were sufficiently dangerous to traffic to require the erection of the “ROUGH SURFACE” and “REDUCE SPEED” temporary signs.
He also noted that the particular risks which the council ought to have guarded against was that associated with its failure to adequately secure the warning signs to forewarn road users of potholes.
“There was a foreseeable risk of personal injury from the road surface being or becoming unfit for the passage of vehicles at what would ordinarily be a safe and lawful speed. Pending the repair, this required the Council to erect warning signs and to do so with reasonable care,” he wrote.
The appeal judges agreed that the council’s functions to repair and keep a road in repair included that of erecting temporary warning signs about the condition of the road.
Thus section 37 (1) would have exempted the council from liability – they explained – but for the operation of CLA 37 (2) which could not be engaged because of the actual knowledge of the council’s employees.
The council also asserted that it was entitled to liability immunity for the motorbike injury under CLA s 35, because in fact there were no sandbags available to secure the signs due to the council supply being exhausted some four days earlier.
On that argument, the court noted “the difficulty which the council confronts is that those erecting temporary signs could have used any heavy weight or star picket or simply affix the temporary signage to the permanent floodway signs”.
The injured motorbiker testified that had the temporary sign remained in position, she would have reduced speed much earlier and would have avoided the pothole. Despite this, the council contended there was insufficient evidence to conclude that the absence of signage contributed to the accident.
Each of the other riders bolstered Paula’s claim by swearing they rode according to conditions and whatever signs there were “we’d observe them”. They also testified to Paula’s “meticulously safe” riding expertise and her “confident and cautious” manner.
In the face of that evidence, the Court of Appeal agreed Paula would have been able to avoid the hazard had she been adequately warned and that her riding had not contributed to the calamity .
“There was a reduction in speed not prompted by anything but the floodway sign and had the temporary signage been up, the speed would have been reduced even further and Ms Tait would have been able to avoid the pothole,” Justice Morrison concluded.
The trial judge’s ruling that the council must bear all the fault for Paula’s injuries was confirmed.
Orthopaedist Greg Gillett assessed Paula’s lumbar spinal impairment at 22% and 4% for her left foot. His colleagues Dr John Tufley and Dr John Fraser concurred.
The council was ordered to pay the sums Judge Jarro assessed for the 61-yr-old namely, general damages of $97.5k; future economic loss of $60k; and past economic loss of $21k making up a total of $304k.