We are frequently contacted by cyclists with queries about whether a Council can be held liable for injuries sustained as a result of encountering a pothole in the road, or another defect on a footpath or road surface.
Generally speaking, a Council cannot be held liable in these circumstances.
Section 42 of the Civil Liability Act 1936 (SA) (“the Act”) notes, in particular, that:
A road authority is not liable in tort for a failure:
- to maintain, repair or renew a road; or
- to take other action to avoid or reduce the risk of harm that results from a failure to maintain, repair or renew a road.
How are “road” and “vehicle” defined under the Act?
Road is defined as a street, road or thoroughfare to which public access is available to vehicles or pedestrians and includes a bridge, busway or laneway, as well as a carpark or footpath.
Vehicle includes a motor vehicle, bicycle, and an animal that is being ridden or used to draw a vehicle but does not include a tram or other vehicle (except an O-bahn bus) that is driven on a fixed track.
Are there any exceptions to Section 42?
There are two remaining circumstances where an injured party may be able to bring a claim for compensation against the Council, including:
- Where the Council has repaired a defect but has done so poorly and the poor state of repair has led to an accident. For example, if a Council has repaired a pothole but has left an uneven road surface.
- Where a person could establish that not only is there a defect in the road or footpath which has led to an accident, but that the Council has been made aware of that defect on a number of occasions by concerned members of the public. In these circumstances, it could be argued that the Council has been negligent in failing to take steps to avoid a known risk.
Claims against local Councils are difficult to pursue and strongly defended. The Andersons’ team are experienced in these claims and advise injured parties to seek appropriate and experienced legal advice at an early stage.