07 Feb 2011

A recent decision of the New South Wales Court of Appeal has affirmed an increase in protection for authorities such as road authorities and Local Councils, and illustrates that a higher duty is being placed on individuals.

The decision of Allianz Australia Insurance Ltd v Roads and Traffic Authority of New South Wales; Kelly v Roads and Traffic Authority of New South Wales [2010] NSWCA 328 considered section 43A of the Civil Liability Act 2002 (NSW) (CLA), which governs the liability of public authorities which have exercised a special statutory power.

In this case, a collision between a vehicle and a truck travelling from the opposite direction occurred on a state highway under the control of the Roads and Traffic Authority (RTA). The vehicle lost traction on a water hazard on the highway and the driver and his passenger were killed. A number of claims and cross claims were brought against the RTA for a possible breach of duty in not providing sufficient warning of the water hazard.

In the Supreme Court of NSW, His Honour Hoeben J held that the RTA had breached its duty by erecting a warning sign  924 metres away from a water hazard, whereas the sign should have been positioned approximately 150 – 300 metres away. However, the claims against the RTA were dismissed on the basis that the negligence of the deceased driver caused the accident, not the distant sign.

This was appealed by the claimants and cross claimants, however the decision was upheld by the New South Wales Court of Appeal which considered a number of factors to be of key importance when determining the liability of public authorities pursuant to their exercise of a special statutory power:

• The context in which the action or inaction occurred: it was considered that the warning sign was situated only approximately 30 seconds prior to the water hazard. Therefore, a warning sign 924 metres prior to the hazard was considered reasonable.

• Whether the authority's action or inaction is so grossly unreasonable that it satisfies the test of s43A(3) of the CLA:

“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 its power” (section 43A(3) CLA)

This case affirms the high level of protection given to authorities such as the RTA, and illustrates a higher duty is being placed on individuals themselves.