Recent liability cases that have gone to appeal, highlighting the importance of having a legally experienced claims team on your side.

As professional defence litigants, JLT’s claims team play an active role in obtaining favourable verdicts for Council. With many cases going to appeal, they use their vast appellate experience to ensure cases without merit are intensely defended.

Below are summaries of such cases; the majority resulting in the best commercial result for the council involved and the mutual as a whole. While all cases are considered commercially, JLT are very conscious to continue ensuring Statewide Mutual isn’t considered a “soft touch” by potential claimants.

Clarence Valley Council vs. Dr Ann Collins

At about 3pm on 9 April 2008 the plaintiff, Dr Ann Collins, was riding her bicycle along the Bluff Bridge on Orara Way in Lanitza NSW. Her front wheel became stuck in a gap between planks while crossing a wooden bridge, causing her to lose control and fall over the side. She suffered significant injuries for which $822,632 in damages was sought.

The Court found that Council acted unreasonably in not erecting a sign warning cyclists of the danger posed by the gaps between the wooden planks on the bridge. However, the court also ruled that the risk was obvious for the purposes of the provisions in the Civil Liabilities Act (CLA), and that Council didn’t owe a duty to the plaintiff to warn her of the risk.

With respect to the plaintiff’s claim that Council should have upgraded the bridge, the court accepted the evidence Council cited regarding their limited resources. Council successfully relied upon s42 of the CLA as a defence.

The Court ultimately found the plaintiff “succeeded in establishing the Council was negligent”, however found in favour of Council due to our s42, s45, and ‘Obvious Risk’ defences.

The plaintiff appealed the decision. The Court of Appeal heard the matter in August 2014. They found in favour of Council in September 2015, dismissing the plaintiff’s appeal with costs.

Gosford City Council vs. Steven Rankin

Gosford City Council was responsible for the care and maintenance of Woy Woy Road, Kariong NSW. During July 2008, Council performed a slip repair on part of the road. Workers cordoned off the shoulder of the road at the site of the road works with 60 hard plastic crash barriers.

In the early hours of 20 July 2008, Stephen Rankin (the plaintiff) rode his motorcycle through the site while it was still dark. Shortly before Stephen reached the site, someone with malicious intent stretched four barriers across both lanes, effectively creating a trap. Stephen was unable to avoid a collision and suffered severe injuries.

The plaintiff sued Council in the Supreme Court, alleging they were negligent in failing to take adequate precautionary measures against the risk that vandals might move barriers across the road. Liability was denied on behalf of Council on the basis they shouldn’t be held liable for the criminal acts of third parties. It was argued that in circumstances where this type of thing had not happened previously, the incident was not foreseeable. The matter proceeded to hearing.

The court found in favour of Council. The Court found that Council didn’t owe a duty of care in the circumstances. It was found that even if Council did owe a duty of care, nothing in its actions or inactions supported there being any breach of that duty.

The plaintiff appealed the decision.

The matter was heard by the NSW Court of Appeal in August 2015. The plaintiff’s appeal was dismissed shortly after. The Court of Appeal agreed with the Supreme Court that Council didn’t owe the plaintiff a duty of care in the circumstances of his incident and that even if Council did owe a duty, there was no breach. The plaintiff was ordered to pay Council’s costs.

Pillinger vs. Lismore City Council

David Pillinger was riding his motorbike along a stretch of road north of Nimbin in early 2006. He lost control and hit the surface of the road, suffering serious injuries.

There was a swathe of material comprising dirt, vegetation and gravel across the road at the location where he lost control. Pillinger alleged that Lismore City Council and its contractor Bitupave Limited (trading as Boral Asphalt) had negligently conducted roadworks at the location in December 2005. Council was repairing the road which included regrading the pavement.

The decision in the case for Pillinger ultimately came down to the court finding that the swathe of debris originated from a ‘windrow’ – a long line of roadbase and aggregate heaped up during regrading works. The windrow hadn’t been properly feathered out from the high side of the road’s shoulder. The cross-fall, or level surface sloping to one side allowing surface water to run off, allowed the material to move onto the road during three days of heavy rain prior to the accident.

The court found that Boral shouldn’t have created a windrow of roadbase on the high side of the road and that any windrow should have only been created on the lower side.

The court also found Lismore City Council liable because it had breached its duty of care as the road authority to exercise reasonable care. The court found the council had created a windrow of roadbase on the high side of the road, which due to the cross-fall and heavy rains, had caused the swathe of material to move onto the road.

Accordingly, both Boral and the council were both liable for the creation of the windrow on the high side of the road.

Fortunately the contract which the council had entered into with Boral included a number of relevant clauses. These related to removal of loose roadbase and aggregate, an indemnity for all of the works and a requirement for Boral to effect insurance in the joint names of Boral and the council.

Lismore City Council only succeeded on the claim for lack of insurance but that was sufficient for, in effect, Boral to be responsible for the payment of all of the agreed damages, less 10% for contributory negligence.

The case was appealed by Boral, and cross appealed by both Council and the plaintiff. Boral was still apportioned 60% of liability and Council 40%, with Boral required to indemnify Council for its apportionment. The plaintiff did however do better on appeal, with the finding of 10% contributory negligence at trial being overturned.

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