Council maintains 800 kilometres of road network within its Local Government Area. A regular inspection of Council's road network is conducted assessing damaged areas to prioritise repair work.
Council must establish an injury, loss or damage was caused as a result of Council's negligence prior to Council paying compensation.
The Civil Liability Act 2002 (NSW) (the Act) is legislation that applies to Council's responsibility for damages resulting from potholes or any other hazards on its roads. The Act sets out a number of principles to be employed in determining whether it is liable for injury, loss or damage suffered by road users. For example, section 45 of the Act provides non-feasance protection for road authorities:
A roads authority is not liable in proceedings for civil liability to which this Part applies for harm arising from a failure of the authority to carry out road work, or to consider carrying out road work, unless at the time of the alleged failure the authority had actual knowledge of the particular risk the materialisation of which resulted in harm.
Principles concerning Council's management of resources and responsibilities as a Roads Authority are set out under section 42 of the Act:
(a) The functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising those functions
(b) The General allocation of those resources by the authority is not open to challenge
(c) The functions required to be exercised by the authority are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceedings relate).
Accordingly, Council may not be liable for damages arising from potholes and other hazards unless Council was aware of the pothole and other hazards and has been negligent in not addressing the risk within Council’s ability in terms of resources.
Council recommends that you seek professional legal advice if you are unsure about whether you are able to claim for your loss or damage.
Should you wish to make a claim against Council, please complete the claim for compensation form
and include all relevant documentation.