SUPREME COURT CONFIRMS REGIONAL COUNCIL NEGLIGENT FOR MOTORCYCLIST'S INJURIES
Supreme Court confirms Regional Council negligent for motorcyclist’s injuries caused by striking large pothole.
The Queensland Court of Appeal recently heard an appeal from a 2019 decision of the District Court which found Goondiwindi Regional Council negligent for injuries suffered by Ms Paula Tait when riding her motorcycle when she struck, and was subsequently catapulted, by a large pothole. The Council was found to be negligent due to their failure to appropriately secure road signs warning of road defects.
On 25 September 2016, Ms Paula Tait was riding with a group of experienced bike riders through the Mittengang Creek Floodway on the Leichardt Highway, when she struck a large pothole and was subsequently catapulted, resulting in significant injuries.
Crucially, prior to the accident, the Council was aware that recent flooding had caused road damage and in response, erected two signs – “ROUGH SURFACE” and “REDUCE SPEED.”
However, the signs fell over as they were not secured and consequently neither Ms Tait, nor her fellow riders, were warned of the road damage.
Ms Tait brought an action in negligence against Goondiwindi Regional Council for damages in 2019. The District Court held that the Council was liable and awarded Ms Tait $304,138.11 in damages.
Following the decision, the Council appealed on several grounds, the most notable of which concerned whether the Council was immune to liability under section 37(1) of the Civil Liability Act.
This section states that a public or other road authority is immune to legal proceedings for:
failing to repair a road;
failing to keep a road in repair; or
failing to inspect the road to determine whether it requires a repair.
The Honourable Justice Morrison held on Appeal that Council’s failure to appropriately secure the signage constituted a “failure to repair a road” under section 37(1), with reference to the Council’s Road Maintenance Performance Contract.
Importantly, under section 37(2), an authority is exempt from this immunity where at the time of the failure, the authority had actual knowledge of the risk, and it resulted in harm.
The risk in this case was that by not securing the erected sign, a road user could be injured by an existing or developing pothole.
Justice Morrison found that Council knew of this risk, by way of it’s workers, who erected the sign but failed to secure it.
Consequently, it was held that the Council was not immune to litigation by way of the Civil Liability Act. The Appeal was dismissed and the Council’s liability for Ms Tait’s injuries was maintained.
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