A Bump In The Road?
Councils, as road authorities, are provided a level of immunity from suit under the provisions of the Civil Liability Act that no other person or entity enjoys.
Section 45 provides that a road authority is not liable for personal injuries caused by a failure of the authority, here the Council, to carry out roadwork or to consider carrying out roadwork unless at the time of the alleged failure the authority had actual knowledge of the particular risk which materialised and resulted in harm.
The court has held that actual knowledge on the part of the road authority may be demonstrated by formal complaints made to the council.
Therefore, if it can be established to the court’s satisfaction that the council had been on notice of a particular defect in a footpath or roadway which ultimately resulted in injury to a person then the council could be held liable for that injury. Proving that the council had knowledge is the difficult part.
When similar legislation was introduced in New York many years ago the Bar Association there developed a unique and novel response. The law introduced provided that a person injured as a result of stepping into or falling over a pothole or crack on the roadway or sidewalk had to establish that the Department of Transportation had prior written notice of the defect. In the absence of that written notice the injured person would not be entitled to claim. So as to combat such onerous legislation the New York State Trial Lawyers Association created the Big Apple Pothole and Sidewalk Protection Committee whose primary role was to engage a mapping company who surveyed and made note of all defects in sidewalks and crosswalks in the five New York Burrows. This map would then be filed with the Department of Transportation and served to constitute the written notice necessary to satisfy the legislative requirements.
In New South Wales it is not feasible that we undertake mapping of all the defects in roadways and footpaths. However it is important as a member of the community that we identify any such defects which may pose a foreseeable risk of injury to other patrons using the footpath or the roadway. In those circumstances such defects should be reported to the local authority responsible whether that be the council or the RMS. Such reporting must be in writing.
The bringing of a claim for a person injured as a result of a defect in a footpath or roadway can be fraught with difficulty. Brydens Lawyers have been successfully prosecuting such claims now for over 40 years.
For over 40 years now Brydens Lawyers has been operating a ‘No Win – No Fee”, policy which, simply put, provides that if a personal injury or compensation client is unsuccessful in their claim then Brydens Lawyers will not raise a tax invoice for having acted on behalf of the client. That is, if the claim is unsuccessful we do not get paid. More information about how this works can be found on our No Win – No Fee page.