We often receive enquiries from people who have been injured, by no fault of their own, due to defective pathways, roadways and other hazards on government owned and/or managed areas.
Certain Protections for Local Governments
As we explain to our clients, the Civil Liability Act 2003 (Qld) provides local governments and other public authorities with a defence against claims made for defective footpaths or roadways. For example, when deciding whether a local council is liable, a court must apply principles such as:
- the limitation imposed on the council by its financial resources; and
- the general allocation of financial resources by councils (s35 CLA).
Historically, this law gave a very broad protection to authorities including that highway authorities were immune to prosecution and would not be liable for any incident that occurred on the roadways, if they had failed to repair a road or footpath. They could only be held responsible if they had attempted to repair or remove such a hazard on a roadway and failed in that attempt.
This principle was later overturned however in the decision of Brodie v Singleton Shire Council and Ghantous v Hawkesbury City Council (2001) when the High Court held that a highway authority is to ‘… take reasonable care that their exercise of or a failure to exercise those powers does not create a foreseeable risk of harm to a class of persons …’.
Section 37 of the Civil Liability Act 2003 (Qld) still provides a defence for these authorities in that the authority must have had actual knowledge of the particular risk, the materialisation of which resulted in the harm.
In other words, if the authority had no actual knowledge, or any previous complaint or notification of the risk, they cannot be held liable.
There are other factors to be considered also, including whether or not there was an obvious risk of injury and that the risk was not insignificant.
These are often difficult matters which are strongly contested by solicitors acting for the relevant authority. Careful consideration needs to be given to the specific set of circumstances in which you have been injured and those facts and circumstances need to be weighed against the legal protection given to authorities. For more information, contact one of our experts today on (07) 4963 2000 or through our online contact form below.