On 20 August 2004, the plaintiff's partner was fatally
injured when the car she was driving ran off the road and hit a
tree at Kingsvale in New South Wales. Harden Shire Council
(Council) was at that time carrying out road works
on the section of road where the accident occurred.
The plaintiff sued Council in negligence for damages arising
from nervous shock and for dependency under the Compensation to
Relatives Act 1897 (NSW). He alleged that the accident was
caused by loose gravel on the road surface and that Council failed
to provide adequate signage to indicate that the road had been
resurfaced and that motorists should reduce their speed.
In this Alert, Senior Associate Brooke Jacobs and Solicitor
Hannah Staunton discuss the case and summarise key points from the
Decision at first instance
The trial judge accepted that Council had breached its duty of
care to the plaintiff in failing to erect speed reduction signage
on approach to the road works and warning signage indicating that
the road had been resurfaced.
However, the trial judge did not accept that Council's
failure to erect signage had been causative of the accident. The
trial judge had regard to 43A of the Civil Liability Act
2002 (NSW). This section mirrors section 36 of the Civil
Liability Act 2003 (Qld).
Section 43A provides that "any act or omission
involving an exercise of, or failure to exercise, a special
statutory power does not give raise 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." The trial judge
was satisfied that actions of Council in failing to erect signage
were not "so unreasonable" as to negate the civil
liability immunity afforded by the section.
The plaintiff therefore failed at first instance. He appealed
the decision to the New South Wales Court of Appeal.
Issues on Appeal
The plaintiff contended that the trial judge had erred in:
holding that the immunity found in section 43A of the Civil
Liability Act 2002 (NSW) applied to the case;
finding that the plaintiff had not established a breach of duty
to the standard required; and
failing to find that the accident was caused by Council's
Central to the appeal was factual causation; whether the failure
to provide signage had in fact caused the accident.
Decision on Appeal
The appeal was allowed 2:1, with Justice Basten dissenting
particularly on the point of factual causation.
Chief Justice Bathurst and Justice Beazley analysed the evidence
before the trial judge. They relevantly found that:
the onus of proof for establishing causation rests with the
plaintiff and the standard of proof is on the balance of
probabilities as per section 5E of the Civil Liability Act
2002 (NSW) (section section 12 of the Civil Liability Act
determining factual causation involves nothing more than the
application of the "but for test": Strong v
Woolworths Limited  HCA 5 and Wallace v Kam
 HCA 19.
the road surface was slippery as a result of the road works
(described by one witness as akin to "walking on
the plaintiff's partner was a careful driver. The only
reasonable inference to be drawn from the circumstantial evidence
was that, had signage warning of the road works and advising a
reduced speed been erected, on the balance of probabilities she
would have reduced her speed and safely navigated the curve;
Council's omission to erect signage was conduct which no
sensible public authority acting with due appreciation of its
responsibilities would have decided to adopt and therefore the
immunity in section 43A was not available to Council.
Key take away points
The take home points from this judgment are as follows:
In circumstantial cases, reasonable inferences may be drawn by
The onus of proof remains on the plaintiff to establish a
breach was factually causative of the harm alleged;
The public authority immunities in section 43A of the Civil
Liability Act 2002 (NSW) (sections 35-37 of the Civil
Liability Act 2003 (Qld)) will not always be invoked,
particularly where the authority's actions have been
"unreasonable" or not in keeping with the standard to be
expected of an authority acting reasonably.
This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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