YOU might have noticed that the roads in and around Orange have the odd pothole.
Get over it I say, literally.
Last week reports referred to a disgruntled resident complaining that Orange City Council had not compensated him for more than $2000 damage to his car evidently caused by a pothole.
In response, a council spokesman was quoted as stating “Unless there is evidence of negligence under the Civil Liabilities Act, councils are not liable for damage that might have been caused by a pothole.”
The question of liability of councils has historically been an interesting legal question.
In short summary, a local council was never liable for damage caused by reason of any neglect on its part to construct, repair or maintain a road or other highway.
This was known at law as the nonfeasance rule. The nonfeasance rule however was tempered by the misfeasance rule.
This rule states that if a council carried out repair works on a road but performed these works negligently then the council would be guilty of misfeasance and liability would arise.
An example of misfeasance can be seen in a 1986 case against Holroyd Municipal Council in which a person suffered severe leg injuries when he fell off his motorcycle as a result of hitting a pothole.
The evidence was that the pothole had been repaired but repaired badly, causing it to erode quickly. Council was found liable.
Many cases over the years blurred the distinction between nonfeasance and misfeasance to the point that courts were liberally construing misfeasance and plaintiffs were succeeding in claims that historically would have failed.
The Civil Liability Act, a piece of legislation that the Carr government introduced in this state in 2002 to chop out people’s rights, has some nasty stuff in it.
It states that a council has a special nonfeasance protection for damage arising from a failure to carry out road work or to consider carrying out road work unless at the time of the failure the council had actual knowledge of the particular risk the materialisation of which resulted in the harm resulting in the damage.
The Civil Liability Act goes on to state that a duty of care is not created merely because the council has actual knowledge of the risk.
Relevantly, this means that just because a council has knowledge of a particular pothole, a person suffering damage as a result of hitting or travelling near the pothole does not automatically receive compensation.
The Civil Liability Act also sets out a number of principles that apply to councils indicating that a court will always take into account that a council has limited financial resources and that allocation of those resources is a matter within the discretion of the council.
If anybody wants council to pay for damage to their car caused by a pothole they need to tell council about the pothole before they hit it and also tell council of the damage they are going to suffer to their vehicle as a result of hitting the pothole. Too easy.
- Toby Tancred
Whiteley Ironside & Shillington