Common law#

The common law (law made by judges in decided cases) recognises that road authorities can be liable for damages (payment of money) in their management and operations of roads. The common law liability for road authorities has been modified by the sections 35 and 37 Civil Liability Act 2003 (Qld). Section 37 concerns liability for inspection of the purpose of repairs to roads. Repairs in that provision are not likely to include inspection for the purpose of temporary closure of roads and is therefore out of scope for the purposes of this Operational Standard. However, the common law does recognise a duty for road authorities to inspect roads when there is a known defect or safety hazard on the road, which could be, for example, a road known to flood in particular levels of rain events.

Section 35 of the Civil Liability Act 2003 (Qld) contains a number of principles which a court will take into account in assessing whether a road authority owes a duty of care to a motorist, or if a duty of care has been breached by the road authority, resulting in injury or property damage sustained by a motorist, in the relevant context, when driving over a road which contains a safety hazard when there is no warning of that hazard by an appropriate sign.

The principles contained in section 35 include that any liability of a road authority should be assessed against the total responsibilities to be exercised by a road authority, and not simply, in the relevant context, the functions of a road authority monitoring roads for potential hazard. A court would expect a road authority (as administered in a particular District) to give priority to resources available to it, inspecting roads known to present a hazard, in particular, safety events such as floods or bushfire, and to temporarily close roads where they present a hazard to motorists. On the other hand, a court would not expect a road authority to endanger the safety of staff, to require them to inspect roads if, to do so, would cause a risk of harm to staff. In such a case, the road authority may be able to satisfy the duty of care on it by publishing warnings by radio news, the departmental website and telephone answering service.

Section 35(d) of the Civil Liability Act 2003 (Qld) provides that a road authority may rely on evidence of its compliance with its general procedures and any applicable standards for the exercise of its functions as evidence of the proper exercise of its functions for a particular claim for damages. In the context of this Operational Standard, compliance with the Standard is evidence that Transport and Main Roads has satisfied its duty of care.

The effect of section 35(d) is that compliance with the Operational Standard is not an absolute defence to a claim for damages in negligence against the road authority, but instead is evidence of proper exercise of the road authority's functions. The principle does demonstrate the importance of compliance with the Operational Standard.

Otherwise, section 46(4) of the Transport Infrastructure Act 1994 (Qld) does provide a defence to a claim by a motorist against a road authority, where the motorist suffers loss or damage by driving past a restricted road use notice. Even in a case where there has not been the opportunity to inspect a road potentially subject to a safety hazard, and a restricted road use notice has not been erected, a court will recognise contributory negligence such as the relevant hazard being visible and obvious to the motorist. For example a road cut by floodwaters visible in the daytime. Depending on the circumstances, contributory negligence of a motorist can reduce damages anywhere in a spectrum from 0% to 100%.