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No 20, February 2002 |
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Editor: Kin-Yat Lo, Michael Chow
Production: Sandy Larson
| The views expressed in Chain Mail articles are those of the authors only and do not necessarily represent either the common views shared by a majority of Bike North members, or Bike North policy as formulated by the Bike North Executive Committee. |
Suing for potholes: an epilogue?
The High Court has removed the longstanding immunity afforded to road authorities from being sued for not repairing roads. However, the law in this area is still far from simple or clear-cut - it is not simply a matter of phoning up the local council or the RTA, to get potholes fixed.
Last year, we reported that a cyclist (Suvaal) successfully sued a local council for injuries sustained as a result of poor road repairs. In that case, the NSW Supreme Court found that Cessnock Council was guilty of "misfeasance", ie performing an improper repair.
The decision was based on a longstanding legal distinction between doing something and doing it badly (ie misfeasance) and doing nothing at all (or "non-feasance"). The "immunity" for non-feasance or "highway immunity" protected a road authority from being sued for negligence for any omission to contruct, repair or maintain a road or highway (including footpaths and bridges).
However, the immunity did not extend to what were called "artificial structures" such as drains, sewers or tram-tracks. The policy reason behind the immunity was that the courts felt that they should not interfere with the way in which road authorities spent their budgets - whether on road repairs or new roads, or other facilities. To do so would prejudice the resources of road authorities, it was said. Subsequently, in May 2001, the High Court removed this immunity in two NSW cases, which were heard together (Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council [2001] HCA 29).
Neither case involved a cyclist but, as will become apparent, the cases are of some significance for cyclists.
Ghantous was a pedestrian who suffered injuries when she fell while stepping from a concrete footpath to an earthen verge in a street in Windsor. Apparently, in NSW, injuries sustained by pedestrians from trips and falls on footpaths account for the majority of claims made against local councils and are the single most expensive cause of public liability claims.