Court clarifies duty of care owed by Queensland local governments regarding road maintenance

A recent decision of the Queensland Court of Appeal has clarified the duty of care owed by Queensland local governments involved in road maintenance works.

In Goondiwindi Regional Council v Tait [2020] QCA 119, Goondiwindi Regional Council (GRC) was found liable in negligence for its failure to take reasonable care to secure warning signs which would have (had they not fallen over) alerted motorists to the existence of potholes on a highway.

In this article, we discuss key insights from the decision and key takeaways for local government authorities.

Background

Ms Tait sued GRC after sustaining injuries from falling off her motorcycle when she hit a large pothole on a floodway section of a highway maintained by GRC.

GRC was responsible for maintaining the highway under its Road Maintenance Performance Contract (RMPC) with the State of Queensland.

In the lead up to Ms Tait’s accident, GRC had actual knowledge that potholes were beginning to develop on sections of the highway due to heavy rain, and that these presented a danger for road users.

GRC’s road repair crew were not able to immediately repair potholes forming at the floodway where Ms Tait was injured due to water flowing over the floodway. The crew therefore erected signs warning of the danger, stating ‘rough surface’ and ‘reduce speed’, however, these were not secured by sandbags or any other appropriate mechanism, and had fallen over by the time Ms Tait approached the floodway travelling at highway speeds.

Civil Liability Act exception

Under s 37(1) of the Civil Liability Act 2003 (Qld) (CLA), a local government responsible for carrying out road work is not liable in legal proceedings for its failure in relation to any function it has as a road authority to repair a road or inspect a road for the purpose of deciding whether it needs repair.  GRC relied on this provision in defence of the negligence proceedings brought by Ms Tait.

However, there is an important exception to s 37(1) under the CLA. Section 37(1) does not apply if, at the time of the alleged failure, the local government had actual knowledge of the particular risk, the materialisation of which resulted in the harm.

Considering the importance of actual knowledge

The trial judge disagreed with GRC’s arguments that the exception should not apply unless GRC had actual knowledge of the specific pothole that caused Ms Tait’s injuries, finding that the s 37(1) exception applied.

The trial judge found that GRC could not rely on section 37(1) because GRC had actual knowledge of the risk of personal injury from the surface of the road being, or becoming, unfit for the passage of vehicles, which materialised when Ms Tait struck the pothole that had formed on that road surface. Therefore, GRC breached its duty of care by failing to secure signage warning of the pothole risk.

The trial judge found GRC liable for negligence.  GRC appealed to the Court of Appeal.

What were the key issues?

The key issues for the Court included:

• the operation of section 37 of the CLA, including whether ‘actual knowledge of the particular risk the materialisation of which resulted in the harm’ required GRC to have actual knowledge of the specific pothole that caused Ms Tait’s accident and was injured;  
  
  
• the existence and scope of GRC’s duty of care to road users, including the extent to which it arose from GRC’s obligations under the RMPC and at common law;
  
  
• whether GRC had breached that duty of care by failing to take reasonable care to properly secure the warning signs; and
  
  
• whether, if the warning signs had been in place, Ms Tait would have driven to the conditions and avoided the pothole.

The Court of Appeal dismissed the appeal, upholding the trial judge’s decision that the GRC was liable for negligence. The Court found that:

• actual knowledge of the particular risk of personal injury from the surface of the road being, or becoming, unfit for the passage of vehicles was sufficient to disentitle GRC to the protection of s 37(1) of the CLA;
  
  
• GRC did have a duty of care to road users. That duty required it to maintain roads for which it was responsible by fixing defects in a timely and efficient way, and where that was not possible to do (such as due to water flowing over the section of highway) by taking steps to warn motorists of relevant risks or road defects (in this case, potholes);
  
  
• GRC breached its duty of care by failing to secure the warning signs; and
  
  
• if the warning signs had been in place, they would have led to Ms Tait driving to the conditions and being able to avoid the pothole.

An application for special leave to appeal was heard before the High Court of Australia, however leave to appeal was refused.

Key takeaways

Many Queensland local government are involved in road maintenance works, often under contract with the Department of Transport and Main Roads.

If a local government road authority has actual knowledge of a particular risk (which would result in harm to road users if it materialised), it must take reasonable care when addressing that risk in order to discharge the duty of care it owes to road users. If it doesn’t, the protection offered to local government road authorities by s 37(1) of the CLA will not apply.

Having knowledge of a particular risk can be as general as having actual knowledge that there is a potential risk of personal injury to road users from the surface of a road being, or becoming, unfit for the passage of vehicles at what would ordinarily be a safe and lawful speed. It need not be knowledge of a specific pothole or road defect that caused an accident to occur.

What is reasonable care in addressing road maintenance defects or risks will depend on the specific circumstances in each case. However, this case demonstrates that addressing a particular identified risk that cannot be repaired immediately will require road authorities to ensure that effective warnings for road users are put in place and properly secured until such time as the defect or risk is repaired.