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Case Review: Breach of duty to maintain road assets

06 November 2020
Public Authorities which are on notice of a hazard may not be protected from claims brought against them if they have actual knowledge of a particular risk, being one that presently exists or will likely materialise.  Read our case review below to find out more.

Affix the sign right or you might lose a fight

During September 2016, there had been considerable rainfall which resulted in widespread flooding north of Goondiwindi along the Leichhardt Highway. Causative of the rainfall, a significant number of sizable potholes formed at the Mittengang Creek Floodway which ran across Leichhardt Highway. The road damage was brought to the attention of Goondiwindi Regional Council (the Council), who reactively sent a maintenance crew to repair.  On arrival the crew identified the road surface was still wet, and instead of repairing, elected to "make safe" the area by erecting temporary signage stating "Rough Surface" and "Reduce Speed". Similar signage was placed along other sections of the highway that had been impacted.

In the days following the rainfall events, Paula Tait (the Plaintiff) and a group of others were riding their motorcycles southbound along the Leichhardt Highway. During the ride, the group witnessed a number of permanent "Floodway Signs", and temporary "Rough Surface" and "Slow Down" signs which prompted them to slow down. 

As the group approached the Mittengang Creek Floodway, the Plaintiff acknowledged she witnessed a permanent "Floodway Sign", but no temporary signage. She continued through the floodway, travelling at speed before hitting a wide pothole measuring 20cm deep, which caused her to be catapulted from her motorcycle.

As it transpired, the temporary signage leading up to the Mittengang Creek Floodway had been blown over at some time prior to the Plaintiff's approach. It was the Plaintiff's evidence that, had the temporary signage been secured upright, she would have slowed down and avoided the incident.

The Duty of Care to Warn & Maintain

In defending the claim, the Council relied upon s 37(1) of the Civil Liability Act 2003 (Qld) (CLA) which states that a road authority will not be liable for any failure:

  • To repair a road or to keep a road in repair; or
  • To inspect a road for the purpose of deciding the need to repair the road or to keep the road in repair.

However, s 37(2) of the CLA stipulates that the aforementioned section does not apply, "if at the time of the alleged failure the authority had actual knowledge of the particular risk".  

The Court considered the Council's decision to erect temporary signage demonstrated that there was a foreseeable risk of personal injury due to the road surface being, or becoming, unfit for the passage of vehicles.  The Council argued that it did not have "actual knowledge" of the particular pothole which the Claimant alleged to have caused her injuries. This submission was not accepted by the Court, which stated that the pothole was not the "particular risk", it was the "actual knowledge" that the pothole could materialise given the road surface was still wet.

As the Council had "actual knowledge" of the materialisation of the risk, they had a duty to take reasonable care to avoid that risk. Pending the repair of the surface, this required the Council to erect warning signs, and to do so with reasonable care. By failing to weigh down or otherwise affix the temporary signage, the Council were found to have breached their duty to maintain their road assets.

This decision was later upheld by the Court of Appeal that made a finding that, the Council had a duty to maintain roads by fixing defects in a timely and efficient way, and to maintain the roadwork to a safe standard for travelling public. Additionally that the Council did have actual knowledge of the risk, given they had erected the temporary signage.

You can find a complete copy of this decision at the links below:

If you require further information or have any queries in relation to this legal update, please contact Hamish Broadbent.  

We would like to acknowledge the contribution of Joshua Nash to this article.

Further Reading