June 9, 2020
In a decision likely to have implications for councils everywhere, Goondiwindi Regional Council will have to pay $304,000 in damages to a 58-year-old motorcyclist after she hit a pothole and came off her bike in 2016, fracturing several vertebrae.
In November 2019, Brisbane District Court judge Nathan Jarro found the council had been negligent after it failed to secure temporary signage that warned motorists of damage to the Mittengang Creek floodway on the Leichhardt Highway, 47km north of Goondiwindi.
The court heard that after minor flooding occurred along the highway between September 13-20, the council had assessed the floodway for damage.
Council officers found potholes were forming nearby, and erected temporary signs to warn road users of changed conditions on September 22.
However, workers had failed to secure the warning notices with sandbags – their usual practice – because they were out of supplies at the time.
The result was that by the time motorcyclist Paula Tait and a small group of friends crossed the floodway on September 25, the warning sign on their approach had been blown over.
Goondiwindi Regional Council appealed Judge Jarro’s findings in the Court of Appeal in April this year.
But last Friday, the Court of Appeal upheld the original decision.
It found the council was a “road authority” in the sense that it was the entity responsible for carrying out road work under a maintenance contract it held with the Department of Transport and Main Roads.
“The council’s duties were to repair this section of the road, and before doing so, to take reasonable steps to avoid the risk … by warning motorists about the condition of the road,” the Court’s judgment said.
“Its failure to warn them, by not erecting signs which would remain upright until the road was repaired, was a failure in relation to its function to repair the road.
“It was the materialisation of that risk which resulted in the harm.
“Undoubtedly, the Council had actual knowledge of that risk.
“That is why the Council erected, although incompetently, the warning signs.”
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