Australia: Civil claims against public authorities: section 43A of the Civil Liability Act 2002 (NSW)

Legal Directions
Last Updated: 9 February 2011
Article by Seyi Onitiri

Allianz Australia Insurance Limited v Roads and Traffic Authority of New South Wales; Kelly v Roads and Traffic Authority of New South Wales [2010] NSWCA 328

The NSW Court of Appeal has found that placing a 'Water Over Road' sign some 900 metres from the water hazard was not an unreasonable act by the Roads and Traffic Authority of NSW (RTA), an authority with special statutory power to erect warning signs, nor could it be said to have been the cause of a motor vehicle accident which killed two men and seriously injured another two.


Mark Kelly was driving along the Riverina Highway, a highway under the control of the RTA, when his vehicle lost traction on a stream of water over the road and collided with a truck approaching from the opposite direction. Mr Kelly and one of his passengers were killed, and another of Mr Kelly's passengers and the driver of the truck were seriously injured.

Prior to the accident the RTA had placed 'Water Over Road' warning signs in the vicinity. The sign in the direction from which Mr Kelly approached was placed around 900 metres from the water hazard. It was accepted that the placing of the hazard signs was undertaken in exercise of a special statutory power.

At first instance

At first instance a number of parties claimed and cross-claimed against the RTA on the basis it had, by placing a warning sign some 900 metres away from the water hazard, breached its duty of care. Hoeben J held that whilst the RTA had breached its duty of care, by not placing the sign between 150300 metres from the water hazard, it was not the RTA's positioning of the sign that caused the accident, but rather the speed at which Mr Kelly was driving, combined with his failure to keep a proper lookout.

The appeal

The appellants claimed that Hoeben J erred in finding Mr Kelly at fault, submitting that it was the RTA's positioning of the warning sign which caused the accident.

In response, the RTA contended that the trial judge had erred in finding the RTA had breached its duty of care, and in this regard sought to rely on section 43A of the Civil Liability Act 2002 (NSW).

Section 43A provides that in civil proceedings against public or other authorities:

'any act or omission involving an exercise of, or failure to exercise, a special statutory power does not give rise to civil liability unless the act or omission was in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power'.

Giles JA (McColl JA & Sackville AJA agreeing) noted the trial judge had adopted a 'two-step' approach to applying section 43A, having understood it to be the approach suggested by Campbell JA in Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Limited [2009]. The first step involved a finding of negligence against the RTA, which the trial judge did, and the second step required a determination of whether the positioning of the sign by the RTA some 900 metres from the water hazard was 'so irrational that it could not be regarded objectively as a reasonable exercise of the RTA's special statutory power to erect signs of that kind'.

No party questioned this two-step approach, and in any event Giles JA noted that on appeal it was appropriate to go directly to the question of whether the RTA's actions were 'so unreasonable that no authority having its special statutory power to erect warning signs could properly consider its act to be a reasonable exercise of that power'.

Giles JA remarked that it was evident that the language used in section 43A had been modelled on the administrative law principle of Wednesbury unreasonableness, derived from the English Court of Appeal's decision in Associated Provincial Picture Houses Limited v Wednesbury Corporation (1948). His Honour went on to suggest that it was important to consider not only the words used, but also the section's purpose, which in his opinion was to '[raise] the bar for plaintiffs in proof of breach of duty of care by an authority in the exercise of a special statutory power'.

His Honour accepted that the administrative law context differed from that of personal injury, but nonetheless suggested that it was important to pay heed to the administrative principle of Wednesbury unreasonableness, and in doing so remarked that however the principle has been interpreted and applied, 'a constant is that Wednesbury unreasonableness must be at a high level'.

Applying this reasoning to the facts, Giles JA held that:

'Accepting the guiding principle that a warning sign should be close enough so that the driver would recognise the hazard when he or she came to it, and attributing to the RTA Mr McGregor's observations of water in the dip, in my view the RTA could, and could properly consider placing the 'Water Over Road' sign where it was placed a reasonable exercise of its special statutory power. Placing the 'Water Over Road' sign east of the dip, to act as a warning for the dip and for the water over the road at 'Lyntods', was in the circumstances not an act so unreasonable that no authority having the RTA's special statutory power to erect warning signs could properly consider it to be a reasonable exercise of that power'.

In addressing the issue of causation, Giles JA found that the requisite causal connection between the positioning of the sign and the accident had not been established.

Instead, His Honour's view was that all the available evidence did was to demonstrate that the accident was the result of a combination of Mr Kelly's inattentiveness and the speed at which he was driving, and to suggest that a warning sign closer to the hazard would have altered Mr Kelly's driving was speculative at best.


The Court of Appeal's decision confirms that the protection offered to public and other authorities under section 43A is significant. It will often be difficult for a plaintiff to assemble the evidence necessary to demonstrate, on the balance of probabilities, that in exercising a particular statutory power, an authority acted so unreasonably that no authority having the same special statutory power could properly have considered it to be a reasonable exercise of that power.

The decision is also useful in that it involves the first appellate acceptance that s43A can apply to the deployment of signage by road authorities. Signage was a traditional exception to defences based on nonfeasance and often represented an alternate avenue to success for plaintiffs. This decision will in all likelihood close off that alternative, in all but the most extreme of cases.

Finally, like the recent decision of Woolworths v Strong & Anor [2010], this case also provides an example of the Court of Appeal's rigid approach to issues of causation, and the steps that must be undertaken to establish causation to the requisite degree under the Civil Liability Act 2002 (NSW).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.