Australia: Risk of harm and foreseeability considerations for public authorities

Last Updated: 12 July 2017
Article by Mathew Deighton and Alice Blackburn


In Wells v Council of the City of Orange (No 2) [2017] NSWSC 510, the Court considered the liability of a local authority, in circumstances where a motorcyclist collided with a local council installed traffic barrier and sustained injuries. Although the Council was found not to have breached its duty of care and was thereby not liable, the case reinforces the considerations that a public authority should bear in mind when assessing the risk of harm and foreseeability of that risk of harm when planning and carrying out public works, and discusses the application of the Civil Liability Act 2002 (NSW) to local councils.

The central issue for determination was whether the Orange City Council's failure to comply with the Australian Standard for traffic management was "so unreasonable" so as to render the Council liable for the motorcyclist's injuries (if a claim of negligence had been established).


The plaintiff (motorcyclist) was injured in a collision with a water-filled traffic barrier, which the Council had placed across the street as part of the works being carried out.

Before the accident occurred, the motorcyclist had travelled past the barrier that he ultimately collided with. At the time of the accident, the motorcyclist exceeded the speed limit, was not wearing a helmet, did not have a proper working headlamp on his bike and was under the influence of alcohol.

The motorcyclist sued the Council for negligence, claiming that it:

  • failed to provide adequate lighting and warning of the road works;
  • implemented a Traffic Control Plan that did not comply with the Australian Standard; and
  • placed a barrier across the roadway, rather than a lightweight collapsible barrier which, if struck by a motorcycle, would collapse and not be an impediment to traffic.


The Court held that the Council had not breached its duty of care owed to the motorcyclist on the grounds that:

  • the risk of harm was that a motorcyclist would collide, at night, with a water-filled barrier that extended across two-thirds of the width of the street; and
  • the foreseeability of that risk of harm had to be assessed in the context of what a motorcyclist, exercising reasonable care for his own safety, would do.

In assessing the risk of harm pursuant to section 5B and section 5C of the Civil Liability Act (CLA NSW) (similar provisions are contained within section 9 and section 10 of the Civil Liability Act 2003 (Qld) (CLA Qld) and section 48 and section 49 of the Wrongs Act 1958 (Vic)), the Court found that a collision between a motorcycle and a water-filled traffic barrier, which would involve significant impact and would lead to the rider being thrown forward, was foreseeable. However, what was not foreseeable was that such a collision would occur if a motorcyclist was taking reasonable care for his/her own safety.

The Court held that owing to the factual causation of the accident, the water-filled traffic barrier did not, in any active sense, cause or bring about the collision; it was merely the object with which the motorcycle collided. It was only in that sense that it could be said that "but for" the presence of the subject barrier, the collision would not have occurred. The Court observed that the motorcyclist's conduct, as a whole, involved a complete abrogation of responsibility for his own safety.


The Court also considered whether or not the Council would have been able to make out defences available to it under section 43A (a "special statutory power" conferred on public authorities (comparable to section 36 of the CLA Qld and section 84 of the Wrongs Act)), had it found that the Council acted negligently.

The Court held that the Council's power to close the relevant street and erect barriers and signs for that purpose was a "special statutory power". The Court then turned its mind to whether the Council had validly exercised its "special statutory power".


The motorcyclist argued that the exercise of power under section 43A was so unreasonable that no reasonable authority would have acted as the Council had. The Court heard evidence that the use of the water-filled barrier was a "potentially acceptable application of professional judgment noting that the alternative barricades (barrier boards or lightweight modules) may have been subject to interference and relocation (vandalism)" (at [70]).

The Court rejected the motorcyclist's argument that the Council's failure to comply with the Australian Standard demonstrates the Council's negligence. The Court held that the Council's failure to comply with the Standard (and therefore negligent conduct) was dependant on the whole of the evidence, not just the question of whether the Australia Standard was complied with. The Court took a pragmatic approach and found (at [165]) that: should look at the purpose of the requirements of the standard to see whether they had been met rather than requiring a strict compliance with the Standard regardless of the particular circumstances of the site.

Applying that rationale, the Court was satisfied that if a claim of negligence had been made out, the Council would have been able to rely upon section 43A as a defence.

The decision reaffirmed the leading authority of Curtis v Harden Shire Council [2014] NSWCA 314 that for the purpose of section 43A, the threshold question is whether the decision of the public authority was a decision that nobody could have reasonably made in the circumstances.

Mathew Deighton
Local government
Colin Biggers & Paisley

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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Mathew Deighton
Alice Blackburn
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