Potholes in roads can cause injuries to pedestrians and those using motor vehicles. Depending on the circumstances, the individual may be able to bring a claim against the council for damages.
A local council is likely to be found liable if a council officer who has the authority to delegate or carry out the necessary works is found to have actual knowledge of the defect.
Section 45 of the Civil Liability Act (NSW) 2002 provides protection to local councils in these sorts of claims.
Section 45(1) of the Civil Liability Act provides:
(1) A roads authority is not liable in proceedings for civil liability to which this Part applies for 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 alleged failure the authority had actual knowledge of the particular risk the materialisation of which resulted in the harm.
In the case of North Sydney Council v Roman  NSWCA 27, the Court of Appeal considered whether or not a council could successfully rely on s 45 of the Civil Liability Act 2002 to defend a claim on the basis that it had no actual knowledge of the particular risk which in this case was a pothole.
The Council was successful in arguing that s 45 of the Civil Liability Act was a complete defence to the action.
The plaintiff argued that it could be inferred that the council had knowledge of the defect. The Court confirmed that an inferred knowledge, or knowledge of someone without such responsibility is not enough.
In cases against councils, section 42 of the Civil Liability Act also needs to be considered as the council may argue that repair works to the potholes were limited by financial or other resources.
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