Last updated 5 August 2016

The Civil Liability Act 2003 (Qld) (Civil Liability Act) gives local governments and other public authorities broad protection against claims made for defective footpaths or roadways. In deciding whether a council is liable, a court must apply principles such as:

  • the limitation imposed on the council by its financial resources
  • the general allocation of financial resources by councils, which is not open to challenge (s 35 Civil Liability Act).

The law used to be that highway authorities were immune from prosecution if they failed to act (or in legal terms for nonfeasance). In effect, this meant that highway authorities could not be held responsible in negligence for failing to repair a road or footpath. Such authorities were only responsible where they had attempted to repair or remove an existing danger and were negligent in doing so.

The decisions of Brodie v Singleton Shire Council and Ghantous v Hawkesbury City Council (2001) 206 CLR 512 (heard together) overturned this principle, holding that the ordinary principles of negligence were to apply to highway authorities. The High Court stated that a highway authority must ‘… take reasonable care that their exercise of or a failure to exercise those powers does not create a foreseeable risk of harm to a class of persons …’.

The Civil Liability Act has, for incidents occurring on or after 2 December 2002, effectively reinstated the immunity of a public authority for failing to repair a road (s 37 Civil Liability Act). The one concession is that if the authority is actually aware of a risk but does nothing to remedy it, and this results in the harm or damage, then the authority may be liable.

It also needs to be considered whether or not there was an obvious risk of injury (see Defences to a negligence action).