Australia: The 5Z CLA protection for a WA local government, as a road authority

Last Updated: 9 October 2014
Article by Philip Mavor

The District Court of Western Australia recently considered the scope of the protection for road authorities of section 5Z of the Civil Liability Act 2002 (CLA 2002) in the case of Rankilor v City of South Perth [No. 2] [2014] WADC 125.

Section 5Z generally

Section 5Z of the CLA 2002 provides that a road authority is not liable in proceedings for the 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 failure the authority had actual knowledge of the particular risk that caused the harm.

A local government is a 'road authority' within the definition of section 5Z(1) CLA 2002. To 'carry out road work' means any activity in connection with the construction, reaction, installation, maintenance, inspection, repair, removal or replacement of a road.

A 'road' under the CLA 2002 has the meaning given to the term in section 6 of the Mains Roads Act 1930, which defines 'road' to mean any thoroughfare that the public is entitled to use, and any part thereof. The Court in the Rankilor case found that a footpath is a road since it is a thoroughfare that the public is entitled to use.

A road authority must plead section 5Z in order to be able to rely upon it. In Markey v Scarboro Surf Life Saving Club Inc [2007] WADC 194, Yeats DCJ found that section 5Z of the CLA 2002 could have been relied upon by the City of Stirling in a case where the plaintiff sought damages for injuries when he came off his pushbike on dual use pedestrian/bike path adjacent to the Scarborough Surf Life Saving Club. However the City had not pleaded their reliance on that section and their liability was considered without reference to that section.

The Rankilor Decision

In March 2012 the plaintiff tripped over a protruding paver and fell whilst walking on a footpath within the district of South Perth.

The cause of the fall was that the plaintiff tripped on a paver that was raised approximately 20 mm to 25 mm along the width of its leading edge as a result of pressure from an adjacent tree root pushing the paver upwards.

The plaintiff alleged that the City of South Perth was negligent in that it failed to exercise reasonable care as the footpath was not in a satisfactory condition. Essentially, the plaintiff claimed that the City had failed to ensure that the footpath was even by failing to ensure that the particular paver she tripped over was not raised, and by failing to follow their 'tree' and 'footpath' program.

The plaintiff raised the issue that sections 9.56 and 9.57 of the Local Government Act 1995 (LGA 1995) do not make the City immune. The Court dismissed that argument since the City was not seeking to be relieved of liability under the LGA 1995, but via section 5Z of the CLA 2002. In any event, the CLA 2002 being an Act specially relating to civil liability passed after the LGA 1995 impliedly repeals any section within the LGA 1995 dealing with the City's liability which is inconsistent with the provisions of the CLA 2002 so that the CLA 2002 provisions would apply. The clear purpose and wording of the CLA 2002 provision was to limit liability to the council in the specific circumstances specified in section 5Z. There is nothing in section 9.56 or 9.57 LGA 1995 which limits the clear wide reaching effect of section 5Z CLA 2002.

The Court found that under common law principles that the City was under a duty of care to take keep the footpath reasonably safe for ordinary use, however it found that the footpath was reasonably safe for ordinary use and that there was no breach of duty of care by the City.

Even if the City had breached its duty of care and caused the harm, the Court found that the City would not be liable for damages by virtue of section 5Z of the CLA 2002. The plaintiff would not be able to recover damages for her injury because section 5Z specifically provided protection for the City.

Bowen DCJ stated:

"In this case s.5Z has been pleaded and is relied upon. The City is only liable for harm (personal injury damage to property and economic loss) suffered by Ms Rankilor as a result of their failure to carry out, or consider carrying out, any activity in connection with the construction, erection, installation, maintenance, inspection, repair, removal or replacement of the pathway if at the time of the failure, the City had actual knowledge of the particular risk that caused the harm."

A finding of actual knowledge can be based on inferences or direct evidence. The Court found that what is required is actual knowledge of the particular risk posed by the unevenness or irregularity of the very paver that caused the trip and fall. It is not sufficient for the City to know of the more general risk that the plaintiff might trip and fall on an area of irregular pavers in the area where she fell. This is because the 'harm' referred to in section 5Z(2) is a reference to the 'particular harm' which has resulted from the 'particular risk' being the particular harm the subject of the action.

There was no evidence that the City had actual knowledge of the particular risk posed by the paver that caused the injury. Accordingly, the plaintiffs claim was dismissed.

Lessons from the Rankilor Decision

A road authority (local government) may seek to rely upon section 5Z of the CLA 2002 as a complete defence even if there has otherwise been a breach of duty. The scope of the section 5Z defence extends to footpaths, however it must be directly pleaded in order for a local government to rely upon it.

A local government may rely upon section 5Z of the CLA 2002 as long as it has no actual knowledge of the particular risk. We strongly recommend that a local government ensure that it has an efficient reporting and maintenance system in place, and take steps to promptly repair or mitigate any risk reported to it, or of which it becomes aware.

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.

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Philip Mavor
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