In Masters v Mitchell Shire Council (No 2) [2026] VSC 598, the plaintiff sought damages in the Supreme Court of Victoria for injuries sustained when his motorcycle crashed on a curve along Reedy Creek Road in Tyaak on 25 December 2022.
The Court held that the plaintiff’s position was undermined by his unreliable recollection of the accident and was not satisfied on the balance of probabilities that the heave in the road was a cause of the accident. Furthermore, regarding the defendant’s liability, the Court declined to find that the defendant breached its statutory duty pursuant to the Road Management Act 2004 (Vic) and/or the relevant Road Management Plan, or that it was negligent.
In issue
The Supreme Court of Victoria considered whether the defendant, who was the relevant road authority for the accident location, was liable for injuries sustained by the plaintiff due to the alleged condition of the road. The central issues concerned both statutory liability under the Road Management Act 2004 (Vic) (RMA) as well as common law negligence. The Court considered whether:
- the heave in the road constituted a defect exceeding the intervention level prescribed by the defendant’s Road Management Plan (RMP)
- the defendant had knowledge of the particular risk which eventuated in this case and failed to undertake the necessary repairs
- any of the statutory limitations pursuant to ss 102, 103 and 105(3) of the RMA applied to the defendant as a complete defence, and
- the plaintiff’s injuries were caused as a result of the defendant’s failure to intervene or repair the road.
The background
The plaintiff was a 26-year-old motorcyclist who was travelling along Reedy Creek Road on 25 December 2022.
Whilst claiming to have suffered retrograde amnesia from the accident, the plaintiff was able to recall the moments immediately prior to the accident, albeit had no memory of the accident itself. He gave evidence at trial that whilst approaching the accident curve, he saw the heave approximately 15m away and repositioned his motorcycle in an attempt to avoid it. The plaintiff was otherwise not certain as to whether he hit the heave, the pothole, or something else.
At the outset of the case, the pothole was the main focus of the plaintiff’s claim, not the heave. Ultimately though, the plaintiff alleged the accident was caused by the heave, due to him either losing control of his motorcycle when trying to avoid it and/or when he rode over it.
Essentially, the plaintiff’s case depended upon establishing that the road defects were sufficiently serious to trigger the defendant’s intervention obligations under the RMP and RMA. Given that the plaintiff’s recollection of the incident proved to be unreliable, and there had been no witnesses to the accident, the Court relied heavily upon the evidence produced by way of photographs, inspections and expert reports. The latter categories of evidence established that the heave had existed for several years prior to the accident and was visible in earlier inspection photographs, however, the Court accepted that the precise height of the heave at the time of the accident could not be reliably reconstructed.
The Court considered the relevant statutory limitations contained within the RMA as well as the consequences of a relevant road authority failing to comply with a RMP as illustrated by the case of Kennedy v Shire of Campaspe [2015] VSCA 215.
The decision at trial
The Court found the plaintiff to be unreliable in his recollection of the accident and, on the balance of the available evidence, concluded that causation was not able to be established. That is, on the balance of probabilities, the Court was not satisfied that the heave was causative of the plaintiff’s accident, and the Court had regard to various possible causes of same.
Critical in its determination of whether the defendant breached its duty of care, the Court concluded that the heave did not exceed the applicable 2021 RMP (which fixed the intervention level at 60mm). Accordingly, the defendant was found not to have breached its statutory duty under the 2021 RMP. The Court also rejected the plaintiff’s negligence claim, declining to find that the defendant had failed to comply with various policies or that the defendant’s 'negligent performance of the defect inspections was a cause of the accident'.
In considering the defendant’s duties and obligations as the relevant road authority, the Court accepted that a heave existed on the road prior to the accident, however it clearly stated that (in relation to identifying the particular risk of which the defendant had knowledge under s102(2) of the RMA), 'knowledge that there were some rough sections on Reedy Creek Road is not sufficient. What is required is knowledge of the heave and the particular risks that arise because of it.' As the Court was not satisfied that the heave exceeded the intervention level as set out in the relevant RMP, the plaintiff therefore failed to establish that the defendant had actual knowledge of the particular risk. Accordingly, the defendant would remain protected under s 40 and s 102 of the RMA.
Further, the Court found that the defendant had complied with the inspection regime set by the 2021 RMP and therefore, had it been necessary, would have been able to rely on the defences available under ss 103 and 105 of the RMA.
The plaintiff’s claim was ultimately dismissed.
Implications for you
Overall, this case strengthens the significance of the statutory protections under the RMA in the assessment and defence of road infrastructure liability claims, while also underscoring the critical distinction between the establishment of a breach of duty and causation.
Masters v Mitchell Shire Council (No 2) [2026] VSC 598
