Mal Byrne says local councils effectively have “full immunity” from any claim arising out of their failure to repair footpaths.
Many may remember the steep rise in public liability insurance premiums in 2002 and 2003, which led many charities, sporting clubs and social clubs to close as they could not afford public liability insurance cover. It eventually prompted State premiers and the Federal coalition government to get together to enact a series of changes to the law of negligence across the county focusing in particular on public liability claims, but also affecting motor accident claims and medical negligence claims. Inevitably, when insurance costs rise, insurance companies blame the claimants and their lawyers and demand that rights to compensation be cut to lower costs. Proper investigations in 2002 would have revealed that the steep rise in insurance costs in 2002 was in response to the events of September 11, 2001 which led to massive insurance claims and review of premiums in light of the potential for catastrophic claims arising out of terrorism. Nevertheless, each Australian State passed laws in or around 2004 limiting claims for negligence and also limiting the quantum of amounts that could be claimed by victims of negligent acts. In South Australia, amendments were made to the Civil Liability Act 1936. Even though the changes were supposed to be benefiting the poor charities, sporting and social clubs that could not afford rising premiums, the biggest beneficiary other than insurance companies themselves of the reforms were local councils.
Prior to 1 April 2004, when the Civil Liability Act amendments came into force, councils had a duty of care to maintain infrastructure that was their responsibility, such as roads and footpaths. Like most horizontal concrete structures, footpaths require regular maintenance. Footpaths adjoining residential properties will either be raised or lowered or pavers broken by a combination of tree roots, cars leaving the road, soil and water erosion and other factors. As a result, the lips in between concrete pavers can become raised and people trip when the front of their shoe catches on the lip. One of the biggest users of footpaths are elderly citizens walking to and from public transport or to their local shopping centre. I used to regularly see elderly clients before 1 April 2004 with fractured wrists, knee injuries and in particular fractured hips from heavy falls suffered when they tripped on a broken piece of concrete paver or a raised lip between two pavers. Prior to 1 April 2004 it was possible to sue councils, although it was far from easy. Councils were not expected to have all footpaths in a pristine state of repair. The Courts accepted that the councils had limited means, and that not all concrete footpaths could be in perfect condition at all times. What the Court expected of councils was that where they received reports of broken pavers or raised pavers or any form of hazardous part of the footpath, that they sent maintenance crews out promptly to repair the problem. Even then, if a victim of a heavy trip and fall on the concrete paver could show that someone had previously complained about the paver and council would not repair it, there was still a general duty placed by the High Court on people to watch where they were going in all circumstances. There was no guarantee that a claim could be made and claims would still be defended in certain circumstances.
Everything changed after 1 April 2004, and the enactment of Section 42 of the Civil Liability Act 1936. The legislation says that a road authority (this includes a council) is not liable in negligence for a failure to maintain repair or renew a road. The definition of “road” in the Legislation includes a footpath as well as alleys, laneways, or walkways. What Section 42 of the Civil Liability Act did was effectively give councils full immunity from any claim arising out of their omission or failure to properly maintain or repair footpaths. Hence from 1 April 2004 onwards, no person could sue a council no matter how broken the paver or high the lip or bad the injury they suffered as a result of tripping and falling due to hazardous pavers.
The immunity is only from failures to act or omissions and not damage actively caused by an act of council. However, the vast majority of claims for problems with footpaths arise out of the omission to maintain or repair the damaged pavement rather than any direct act of council that damages the paver.
Although it was not enacted on 1 April 2004 and preceded the amendments to the Civil Liability Act, Section 271 of the Local Government Act 1999 also gives Council’s a free pass, this time in relation to community land. Not only are council’s immune from liability for their failure to maintain footpaths, but areas such as public parks or grass verges adjoining bus stops are also areas where you will not be able to sue council if you get injured from tripping on poorly maintained public space.
Eight years on from the amendments, it is interesting to note that charities, sporting and social clubs still struggle, but due to economic factors and not to do with public liability premiums which were always going to ease after the September 11 bump. The real beneficiaries have been local councils and their insurers who now do not have a duty of care at law to maintain or repair most of their infrastructure.
Author: Mal Byrne
Mal Byrne is a Consultant at Tindall Gask Bentley Lawyers, South Australia. For a free initial interview about your injury issue call Mal on (08) 8250 6668 or fill out this form online.