In the recent decision of Goondiwindi Regional Council v Tait  QCA 119, the Court of Appeal upheld the decision that a local government was liable for failing to repair a pothole on a state-controlled road in a declared disaster area, and for failing to secure warning signs for the benefit of approaching road users.
- Whether taking steps to warn motorists of a pothole was part of the local government’s obligations;
- Whether the local government had actual knowledge of the particular risk the materialisation of which resulted in the harm;
- Whether the motorcyclist would have been able to avoid the pothole had temporary signage been present.
The Goondiwindi Regional Council (the Council) is a local government authority, with control over a network of local roads. It also maintains roads on behalf of the State of Queensland via a contractual arrangement known as a Road Maintenance Performance Contract (RMPC).
Between 13 and 20 September 2016, there was unseasonable and considerable rainfall which brought significant flooding to western Queensland communities. On 22 September, Council became aware that there was pavement damage on the Mittengage Creek Floodway (the floodway) located at Billa Billa on the Leichardt Highway, and potholes were beginning to develop. Members of the Council’s patching crew installed temporary signage on both approaches to the floodway with the words “rough surface” and “reduce speed”. However, there were no sandbags available to secure the temporary signs as there was a shortage. As at 25 September, Council was aware of the existence of potholes/washout at the floodway.
On 25 September 2016, Ms Tait, 61 years of age, was riding a motorcycle with a riding group along the highway through the floodway, when she struck a large pothole/washout and suffered substantial injuries. Although Ms Tait and one of the riders in front had noticed the permanent floodway sign prior to the actual floodway, the riding group did not observe any temporary signage to command a reduction in speed as the signage had been blown over at some time prior to their approach. Ms Tait sought to recover damages from Council as it was responsible for the repair and maintenance works upon the road.
The decision at trial
The trial judge considered Council’s obligations under the RMPC and the principles concerning resources and responsibilities of public authorities pursuant to section 35 of the Civil Liability Act 2003 (Qld) (the CLA) and determined that Council owed a duty to the plaintiff to fix intervention level defects and defects deemed to be a safety hazard in a timely and efficient manner, and to maintain the road network to a safe standard for the travelling public.
The trial judge then considered whether section 37 of the CLA provided Council with protection from liability for failing to repair the road. The trial judge held that Council had actual knowledge of the deteriorating surface, noting that the potholes on the floodway were assessed by Council as constituting a hazard or danger to road users provoking the decision to place the temporary signage at the southern and northern approaches to the floodway. Although Council was not required to foresee the precise concatenation of the circumstances which lead to the incident, Council knew the rough surface could get worse. The trial judge concluded that section 37 therefore did not apply. The trial judge otherwise determined that the risk was not obvious to road users and that Council had failed to adequately secure the temporary signage as a means of warning road users, thereby breaching its duty of care.
The trial judge was not persuaded that Ms Tait had been contributorily negligent, finding that she was a reasonably experienced, competent and cautious motorcyclist. Council was subsequently ordered to pay the plaintiff $304,138.11 for damages and interest, plus costs.
The Decision of the Court of Appeal
The issues considered on appeal were whether the trial judge erred in the findings as to the scope of Council’s duty of care, the application of sections 35 and 37 of the CLA, causation and contributory negligence.
Morrison JA determined that the duty on the Council under the RMPC was to take reasonable care in carrying out maintenance work on the roadway, including installation of warning signage, so as to not create a foreseeable risk of harm to users of the roadway from developing potholes. Taking steps to warn motorists was simply part of the duty to maintain. However, McMurdo JA determined that the duty of care was owed by the Council under common law, because of the powers and responsibilities which it had been given under the RMPC.
In a unanimous decision dismissing the appeal, the Court of Appeal found that the failure to properly fix the signage in place would constitute a failure in relation to a function the Council had (pursuant to the contract or common law), namely to repair the road. The risk identified by the Council workers was that potholes could develop or worsen, and if that happened a road user could be harmed. The Court of Appeal accepted that Council, via its workers, knew of that risk at the time they erected the signage and failed to secure it. The Court of Appeal concluded that section 37 therefore did not apply.
With respect to section 35, the Court of Appeal noted that there were other options available to stabilise or affix the temporary signage, if there were no sandbags. Ultimately, it was determined that, had the temporary signage been up, the speed would have been reduced and Ms Tait would have been able to avoid the pothole. The argument that Ms Tait was travelling too closely to the motorcycle in front of her at an excessive speed, was rejected.
Implications for you
The decision highlights that the functions of a local government to repair and keep a road in repair include the function of erecting warning signs. It also reiterates that local councils and road authorities are not able to rely on section 37 of the CLA to avoid liability for failing to repair a roadway, where a risk of harm has been identified.