In the recent decision of Tait v Goondiwindi Regional Council [2019] QDC 208, Judge Jarro DCJ found the Goondiwindi Regional Council (the Council) breached its duty of care by failing to adequately warn road users of dangerous road conditions on a floodway.

Ms Tait was injured in a motorcycle accident on 25 September 2016. She was part of a group of motorcyclists who encountered large potholes in the road whilst riding through a floodway on the Leichhardt Highway. She alleges she, along with the rest of her riding group, were not given sufficient warnings about the poor condition of the road as the motorcyclists approached the floodway. Because of this lack of warning, she suffered injuries as her motorcycle struck a large pothole.

In defending the claim, the Council relied on section 37 of the Civil Liability Act 2003 (CLA), which imposes a restriction on liability of road authorities in circumstances where the road authority has “no actual knowledge of the particular risk the materialisation of which resulted in the harm”. The Council argued it did not have actual knowledge of the exact pothole which Ms Tait encountered with her motorcycle, causing injury.

The Court rejected the Council’s argument that it did not have “actual knowledge” of the risk. In doing so, it accepted the following series of facts which arose on the evidence:

  1. Three days prior to the date of injury, the Council was aware there was pavement damage to the roadway, and potholes were beginning to develop in the area of the floodway.
  2. On the same date, members of the Council’s patching crew attended the floodway, which was “washed out from floodwater as a result to have potholes in the floodwater to be dangerous to traffic so put Rough Surface sign up” [our emphasis].
  3. A temporary sign with the words ROUGH SURFACE and REDUCE SPEED was erected on both approaches to the floodway.
  4. The Council did not secure the temporary signs to the road, by using sandbags (or another means) to weigh down the signs.
  5. As at 25 September 2016, the Council was aware of the existence of potholes at the floodway.
  6. On 25 September 2016 (the date of incident), Ms Tait and the rest of her riding group did not observe any temporary sign commanding a reduction in speed.
  7. After the accident, a motorist pulled up near the accident site and “stood up” a rectangular sign, which was the temporary sign erected by the Council prior to 25 September 2016.
  8. The temporary signage had been blown over at some point prior to Ms Tait’s approach to the floodway.

The Court found the nature of the Council’s breach was it did not properly secure or weigh down the temporary signage. Because the Council did not secure the temporary signage, the riders were not put on notice to change their driving conditions, which they would have done had they observed the temporary signage. Ms Tait would have avoided her injuries by slowing down to avoid any contact with the pothole at speed. As a result, the Court found that the Goondiwindi Regional Council was liable for Ms Tait’s damages, which were assessed at $304,138.11.

This decision highlights circumstances in which a Court is prepared to find a road authority had “actual knowledge” of a particular risk, excluding it from the protection of section 37 of the CLA.

“The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication.”
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