In brief - Council successfully claims immunity from liability

In Mansfield v Great Lakes Council [2016] NSWCA 204, the NSW Court of Appeal recently confirmed the strict thresholds in regard to reasonableness and knowledge that must be established before a public authority can be found negligent.

The Court's decision shows that the standard of reasonableness must be "manifest", in the sense that the evidence must demonstrate that an act or omission was so unreasonable that no roads authority could properly consider it to be a reasonable exercise of, or failure to exercise, its power. It also showed that a claim based on a negligent inspection, which results in not having "actual knowledge" of the risk which materialises, is inconsistent with the statutory scheme. 

Court considers whether roads authority's failure to carry out roadworks constitutes act of negligence 

The NSW Court of Appeal decision in Mansfield v Great Lakes Council exposes the high thresholds that need to be met in order to render public authorities liable for claims of negligence. 

The case provides an important analysis of key provisions of the Civil Liability Act 2002 (NSW) (CLA NSW) dealing with the exercise of statutory powers and immunity from liability for public authorities. Specifically, the case considered the thresholds of reasonableness and knowledge, when determining liability. 

The case at hand dealt with whether the failure by a road authority to carry out roadworks in a manner sufficient to prevent the collapse of an embankment, which resulted in injury to a motorist using the road, was an act of negligence. 

Great Lakes Council claims immunity under sections 43A and 45 of Civil Liability Act

The appellant sustained injuries when his heavily loaded truck rolled into a water course after the embankment on a single lane track road gave way. The respondent, Great Lakes Council, was the roads authority responsible for the care and maintenance of the road. 

The appellant claimed that his injuries were as a direct result of the Council's negligence, as the responsible authority, in failing to build a sufficiently large culvert with head walls that could have prevented the erosion and collapse of the embankment. 

In response, the Council claimed immunity from liability, relying on section 43A (that the act or omission was not, in the circumstances, so unreasonable) and section 45 (a special protection provided for roads authorities) of the CLA NSW.

Appellant fails to convince Court that Council's failure to carry out roadworks was "so unreasonable"

One of the issues on appeal was whether and pursuant to section 43A CLA NSW, the failure to carry out the roadworks was "so unreasonable" that no roads authority could consider the omission to be a proper exercise of, or failure to exercise, its statutory powers. 

Section 43A confers a special statutory power on public authorities (comparable to section 36 of the Civil Liability Act 2003 (Qld) (CLA Qld) and section 84 of the Wrongs Act 1958 (Vic)) and relevantly provides that: 
…any act or omission involving an exercise of, or failure to exercise, a special statutory power does not give rise to civil liability unless the act or omission was in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power.

It was not in dispute that the activity fell within the concept of "road work" under the Roads Act 1993 (NSW) and therefore the Council's failure to build a sufficiently large culvert with head walls, which would have prevented the erosion and collapse of the embankment over the watercourse, constituted a failure on the part of the Council to exercise a statutory power. 

The relevant question for determination was whether this omission was "so unreasonable" that no roads authority could properly consider the omission to be a reasonable exercise of, or failure to exercise, its statutory power.

The NSW Court of Appeal held that the standard of "manifest unreasonableness", which is incorporated into section 43A, is adopted from "broadly analogous principles from public law". In effect, section 43A requires that, in addition to negligence on the part of the Council, it must also be proved that the act or omission was so unreasonable that no roads authority could properly consider it to be a reasonable exercise of, or failure to exercise, its power. 

The Court of Appeal was not persuaded that the failure of the Council to replace the culvert with a larger pipe and head wall was an omission "so unreasonable". Here, the appellant, so far as knowledge was concerned, failed to "establish that the inspections carried out by [the engineer] were so manifestly defective that no roads authority could properly have thought them adequate." (At [38].)

Council found to be immune from liability as evidence fails to establish that its officer's inspection was negligent

Another issue on appeal was whether and pursuant to section 45 of the CLA NSW, the Council was immune from liability resulting from a failure to carry out road works, in the absence of "actual knowledge" of its officers as to the particular risk that materialised and which resulted in the harm?

Section 45 acts as a protective provision for road authorities, akin to section 37 of the CLA Qld.

The evidence failed to establish that any officer, who had the requisite authority within the Council, had "actual knowledge" of the particular risk that materialised in these circumstances. 

The following considerations of "actual knowledge" were made by the Court and contributed to the finding that the Council was immune from liability: 
  • "a claim based on a negligent inspection which results in it not having "actual knowledge" of the risk which materialises, [is] inconsistent with the statutory scheme" 
  • it was not the negligent inspection that caused the harm but rather, the failure to carry out the road works, and
  • there was a lack of evidence that the inspection actually carried out was in fact negligent

This article has been published by Colin Biggers & Paisley for information and education purposes only and is a general summary of the topic(s) presented. This article is not specific legal or financial advice. Please seek your own legal or financial advice for any questions you may have. All information contained in this article is subject to change. Colin Biggers & Paisley cannot be held responsible for any liability whatsoever, or for any loss howsoever arising from any reliance upon the contents of this article.​

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