Fix road damage or face the bill, councils told

Sydney Morning Herald

Saturday 28 September 2002

By Linda Morris

The law may at last be coming to the rescue of long-suffering motorists who have been forced to drive around the same potholes for years.

A parliamentary inquiry has recommended that the state's 172 councils regularly inspect roads and footpaths, draw up repair schedules, and pay for maintenance. Ratepayer approval would be required.

The report of the Public Bodies Review Committee says motorists should not expect to drive on "gold-plated roads", but reveals that some councils had not inspected their roads at all.

Action would be needed to beat huge payouts arising from road accidents and "trips and slips" after the High Court last year decided to remove the immunity of highway authorities from liability for damages caused by lack of maintenance.

However, the president of the NSW Local Government Association, Peter Woods, immediately attacked the recommendations, saying a ratepayer-backed roadworks program could not fend off spurious negligence claims.

Eighty-three per cent of roads were controlled by councils, yet local government received no fuel excise funding.

Mr Woods said he would ask the Premier, Bob Carr, to override the recommendations, adding: "This is not over yet."

Until the High Court's decision, the rule of “non-feasance” had been an accepted part of Australian law since 1936.

It had meant that an authority responsible for a road was not liable for injuries which were suffered due to the natural deterioration of the road.

In a rare win for the legal fraternity, the committee found that the High Court decision to lift that immunity was in the public interest because it would act as an important incentive for proper road maintenance.

Authorities in many other countries, including Britain, no longer have the protection of the non-feasance rule.

Instead, a good road inspection and maintenance regime backed by legislation, endorsed by ratepayers and within budget constraints should give councils greater legal protection, the committee said.

The report's findings come as Statewide Mutual, the largest insurer of NSW councils, warned the committee that it will lose its insurance underwriter next year.

Despite industry predictions that this insurance class will return to profit in the next 12 months, premiums are expected to rise by a further 20 per cent.

Two other smaller council insurance pools have told the committee that they have been forced to increase their reserves by 20 per cent and at least one faces the prospect of having to self-insure for the first $1 million of all claims.

Following a number of controversial damages payouts, Mr Carr recently foreshowed negligence laws which protect councils by striking out claims by people who were drunk or were committing a criminal act and limiting liability where risks are foreseeable and other parties may be partly to blame.