In brief - Brisbane City Council held responsible for creating hazardous road conditions
The Queensland District Court has found in the case of O’Connor v Brisbane City Council  QDC 137 that Brisbane City Council (BCC) failed to ensure that signs remained in place warning road users of hazards created by road repairs. The court determined that the council had created a risk of injury and that the injuries suffered by a cyclist falling from his bike were a result of the council's negligence.
Poor condition of road under repair not signposted
On 3 November 2007, the cyclist, Mr O’Connor, was riding his bicycle over a patch of road that was under repair by the council and which caused him to fall from his bicycle and sustain injuries. While the injuries were not catastrophic, Mr O’Connor sued the council for negligence.
The section of road under repair was 25.2 metres in length and the repairs did not extend to the adjoining bicycle lane. Mr O’Connor claimed that the repairs caused grooves and unevenness in the bitumen surface and that the condition of the road and the existence of the repairs were not known to him.
He also claimed that the condition of the road was not apparent to him and was obscured from his view because of a curve in the road and the lack of signage indicating an uneven surface or roadworks in progress.
Council defends signage at roadworks as adequate for a person keeping a proper lookout
The council defended Mr O'Connor's claim on the basis that the condition of the road was a necessary consequence of the repair works in progress and that the repair works did not impact on the bicycle lane, which Mr O’Connor admitted he elected not to ride in.
The council argued that the repair works were obvious to persons travelling on the road and were visible from a distance and regardless of the bend in the road. The council argued further that signage had been erected which read "rough surface" 30 metres away from and on the approach to the repair works. The council contended that Mr O’Connor was not keeping a proper lookout and that his vision was obscured by the presence of cyclists in front of him.
Did council owe duty of care to cyclist riding outside bike lane in breach of regulations?
The key issues to be considered by the court centred on whether the council owed a duty of care to Mr O’Connor and, if so, whether it had fulfilled its duty. Important factors included whether the state of the repairs was safe at the time Mr O’Connor rode onto the repairs and whether Mr O’Connor was in breach of regulations 151(1) and 247 of the Transport Operations (Road Use Management – Road Rules) Regulation 1999 which regulated cyclists riding alongside others and the requirement to ride in bike lanes.
Given Mr O'Connor's breach, the court was asked to consider whether the council was consequently absolved from its responsibility under the dangerous recreational activities provisions in the Civil Liability Act 2003, or indeed, if it was absolved from responsibility under the public authority exemptions in this Act.
Council exposed cyclist to hazard it had created despite road repairs according with accepted practice
The court determined that the road, in its state of being repaired, was a hazard to bicycle riders, despite the repairs being carried out in accordance with accepted engineering practice.
The court further determined that the hazard had been created by the council and that having created the hazard, it exposed Mr O’Connor to a risk of injury. The court found that the injury suffered by Mr O’Connor falling from his bike was as a result of the negligence of the council.
Council told it must ensure warning signs remain in place throughout repair work
It had been Mr O’Connor's claim that there were no signs warning motorists or cyclists of the repair work. The council adduced evidence that signs had been installed at the time the work was carried out, but could not be certain that they were there when the accident occurred.
The court held that the council was aware that signage went missing from time to time and that BCC ought to have done more to ensure that the signs remained in place at all times. The court considered that the cost of the council checking and maintaining warning signs would have been minimal.
The court determined that the hazard caused by the repairs to the road was not obvious to Mr O’Connor due to the bend in the road and the absence of signage (at the time) to alert road users to the repairs.
Liability not excluded by cyclist's non-compliance with road use regulations
The court held that the council ought to have reasonably expected that cyclists would use the road as well as travel in groups, rejecting the council's attempt to rely on Mr O’Connor’s non compliance with regulations 151(1) and 247 of the Transport Operations (Road Use Management – Road Rules) Regulation 1999 prohibiting motorbike or bicycle users from riding alongside each other on single lane roads unless overtaking and prescribing the use of bike lanes unless impracticable.
The court found that the width of the bicycle lane and frequent presence of broken glass and other debris in it made it impracticable for Mr O’Connor to ride in the bicycle lane. The court went on to say that if Mr O’Connor was found to be in breach of these provisions, the Transport Operations (Road Use Management – Road Rules) Regulation 1999 would not operate to exclude the council of its liability for Mr O’Connor’s injuries.
Cycling not a "dangerous recreational activity"
The council attempted to rely upon section 19 of the Civil Liability Act 2003, which excludes liability for persons who suffer injuries as a result of a dangerous recreational activity with obvious risks. The court determined that cycling, as a recreational activity, did not involve a significant degree of risk of physical harm.
Council's act of misfeasance placed it outside the scope of the public authority protections of the Civil Liability Act
The council also attempted to rely on section 35 to 37 of the Civil Liability Act, which excludes public authorities such as councils from liability for their nonfeasance with respect to the repair and inspection of roads. The court considered that the options open to the council for either bringing the repairs to the attention of road users or diverting traffic around the repairs would have been reasonable and of minimal cost.
Further, the court held that the operation of sections 35 to 37 of the Civil Liability Act would only absolve the council of liability in the event of nonfeasance as opposed to malfeasance. In this instance, the court judged the council's action in carrying out the repairs and creating the hazard were acts of misfeasance and outside the scope of the protection afforded by the Act.
The court held that sections 35-37 only assisted local authorities where they failed to remedy a hazard caused by another source such as weather or normal wear and tear and unknown to the local authority.
Councils beware - statutory protections limited if public not warned of known road hazards
There are a number of lessons for local government to be taken from this case:
• If a hazard such as an unsealed road is created by a council, the council is responsible for either rectifying the hazard, making the hazard very clear and obvious to all persons or preventing persons from coming into contact with the hazard.
• If a council is made aware of a hazard caused by third parties, the council is arguably under an obligation to make sure no person comes into contact with the hazard until it is rectified; whether by bringing it to the attention of all persons so that the hazard becomes obvious (signage) or completely denying access to the hazard. Accordingly, the council needs to ensure that it has systems which result in complaints from the public being investigated and acted on in a timely manner.
• Bicycle lanes should be maintained in a condition that would not make their use impracticable, deter their use or encourage cyclists to ride on the road.
• If roads must be used whilst under repair, appropriate signage must be erected which indicates such potential hazard. The road under repair must be in a condition that is not a hazard to any road user, including vehicles and bicycles. The council must establish a monitoring system to ensure that the signage remains in place at all times.
• Councils should be aware of the limitations of the statutory protections in the Civil Liability Act 2003.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.