Public authorities are important bodies that serve various functions in our society and at times, these bodies may be subject to a common law claim for negligence for exercising or failing to exercise their statutory powers or duties. Individuals who seek to sue public authorities for negligence face some difficulties with succeeding as the authorities are often safeguarded by the Civil Liability Act 2002 (NSW).
Sections 43A and 45 of the Civil Liability Act 2002 (NSW)
In certain circumstances provide public authorities immunity from liability. In some circumstances, it can be suggested that the standard of care that is expected of a public authority is much lower than that the standard of care expected of an individual.
Section 43A
Provides that the failure to exercise a statutory power does not give rise to a claim unless the act or omission was “in the circumstances so unreasonable that no authority having the special statutory power could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power”. Section 45 provides immunity to public authorities where they did not have “actual knowledge” of the risk which caused harm.
The matter of Holland v City of Botany Bay Council [2017] NSWSC, demonstrates the strict thresholds that apply before public authorities can be found negligent. The case considered whether the council was immune from liability under section 45 of the Civil Liability Act 2002 (NSW).
In summary of the facts, the plaintiff tripped and fell at the intersection of a road and sustained several injuries to her shoulder and back. She brought a claim against the City of Botany Bay Council for damages. The Plaintiff argued the road was in poor condition and that the Council should have repaired and maintained the condition of the road. The court determined whether the Council, or the Roads and Maritime Services (RMS) was the roads authority for Gardeners Road. It was determined that the council was the relevant roads authority at the time of the incident. The court found the council was entitled to rely on section 45 of the Act as there was no evidence that the Council had been aware of the road condition. There had been no prior complaints made to the Council about the condition of the road and no prior injuries in that location. The Court held that the Council could not have had ‘actual knowledge’ of the risk.
In light of the above matter, a question that remains is, is it always so difficult to pursue a claim in negligence against a public authority? The decision in Roads and Maritime Services v Grant [2015] NSWCA 138 suggests otherwise.
The plaintiff was riding his bike when it collided with a median strip at an intersection. The court held the Plaintiff would not have been able to see the median strip before the collision. The court held that Roads and Maritime Services (RMS) failed to exercise its statutory powers by failing to install a “Keep left” sign on the median strip which would have avoided the Plaintiff’s injuries. The court found that a reasonable person in the position of RMS would have painted the nose of the median strip, installed adequate lighting and clearly marked the lanes on the road to avoid any collisions.
Section 43A of the Civil Liability Act 2002 (NSW)
Could not be relied on by RMS as it was held that there were several measures that RMS should have actioned in exercising their duty. The Plaintiff was successful in claiming damages, however, the court took into consideration the speed at which the plaintiff had been travelling before the accident and there was a reduction of damages due to contributory negligence.
Resources of public authorities is another issue that is important when considering liability of a public authority. Under Section 42(a) of the Civil Liability Act 2002 (NSW), the court often considers that some duties and powers that should be exercised by a public authority are sometimes limited by financial and other resources. The way in which resources are allocated cannot be challenged nor questioned under Section 42(b) Civil Liability Act 2002 (NSW).
Negligence claims for compensation against public / government authorities can be challenging and complicated. At One Law, our team of compensation lawyers will guide you through the process and take all possible steps to secure a successful outcome.
