Managing Asset Management Related Civil Liability Risk · 1.4 Dissemination of this Guideline and Ongoing Support ... 4 2.2 The Common Law, the Civil Law and the Assessment of Claims

AP-R412-12

AUSTROADS RESEARCH REPORT

Managing Asset Management Related Civil Liability Risk



Published August 2012

© Austroads Ltd 2012

This work is copyright. Apart from any use as permitted under the Copyright Act 1968, no part may be reproduced by any process without the prior written permission of Austroads.


ISBN 978-1-921991-39-4

Austroads Project No. AT1691

Austroads Publication No. AP-R412-12

Project Manager Mick Savage, IPWEA

Prepared by Paul Hillier, ARRB Group

Published by Austroads Ltd Level 9, Robell House 287 Elizabeth Street

Sydney NSW 2000 Australia Phone: +61 2 9264 7088

Fax: +61 2 9264 1657 Email: [email protected]

www.austroads.com.au

Austroads believes this publication to be correct at the time of printing and does not accept responsibility for any consequences arising from the use of information herein. Readers should

rely on their own skill and judgement to apply information to particular issues.

mailto:[email protected]


Sydney 2012

About Austroads Austroads’ purpose is to:

promote improved Australian and New Zealand transport outcomes

provide expert technical input to national policy development on road and road transport issues

promote improved practice and capability by road agencies.

promote consistency in road and road agency operations.

Austroads membership comprises the six state and two territory road transport and traffic authorities, the Commonwealth Department of Infrastructure and Transport, the Australian Local Government Association, and NZ Transport Agency. Austroads is governed by a Board consisting of the chief executive officer (or an alternative senior executive officer) of each of its eleven member organisations:

Roads and Maritime Services New South Wales

Roads Corporation Victoria

Department of Transport and Main Roads Queensland

Main Roads Western Australia

Department of Planning, Transport and Infrastructure South Australia

Department of Infrastructure, Energy and Resources Tasmania

Department of Lands and Planning Northern Territory

Department of Territory and Municipal Services Australian Capital Territory

Commonwealth Department of Infrastructure and Transport

Australian Local Government Association

New Zealand Transport Agency.

The success of Austroads is derived from the collaboration of member organisations and others in the road industry. It aims to be the Australasian leader in providing high quality information, advice and fostering research in the road transport sector.


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CONTENTS

1 INTRODUCTION ................................................................................................................... 1

1.1 Background ........................................................................................................................... 1 1.2 Purpose, Scope and Limitations of this Guideline .................................................................. 2

1.2.1 Purpose of this Guideline ......................................................................................... 2 1.2.2 Scope and Limitation of this Guideline ..................................................................... 3 1.2.3 Disclaimer ................................................................................................................ 3

1.3 Key References ..................................................................................................................... 3 1.4 Dissemination of this Guideline and Ongoing Support ........................................................... 3

2 A BRIEF INTRODUCTION TO HIGHWAYS-RELATED CIVIL CLAIMS ................................ 4

2.1 Why Do Claims Occur? .......................................................................................................... 4 2.2 The Common Law, the Civil Law and the Assessment of Claims ........................................... 4 2.3 Why are Highway Claims so Significant? ............................................................................... 7

2.3.1 A Dissatisfied Customer ........................................................................................... 7 2.3.2 A Drain on Resources .............................................................................................. 7 2.3.3 A Significant Test of Asset Management Systems and Communications ................. 7

3 A BRIEF HISTORY OF ROAD AUTHORITY CIVIL CLAIMS ................................................ 9

3.1 Position Prior to 31 May 2001 ................................................................................................ 9 3.2 The High Court Judgements in Brodie and Ghantous ............................................................ 9 3.3 After Brodie and Ghantous (May 2001 to date) .................................................................... 10

3.3.1 Contractors and ‘Actual Knowledge’ ....................................................................... 11 3.3.2 Victorian Road Management Act 2004 (Amended 1 January 2010) ....................... 11 3.3.3 Summary ................................................................................................................ 11

3.4 The Future? ......................................................................................................................... 11

4 PRACTICAL GUIDANCE IN PREVENTING (AND REDUCING EXPOSURE TO) HIGHWAYS-RELATED CIVIL LIABILITY CLAIMS ............................................................. 13

4.1 Underlying Strategy – Prevention is Better Than Cure ......................................................... 13 4.2 Specific Guidance ................................................................................................................ 14

5 STRATEGY, POLICY, STANDARDS AND PROCEDURES ............................................... 15

5.1 Statutory Obligations and Safety First! ................................................................................. 15 5.2 Ensuring a Logical ‘Top Down, Bottom Up’ Document Hierarchy ......................................... 15 5.3 The Need for Clear, Unambiguous Statements of Strategy, Policy, Standards and

Procedures .......................................................................................................................... 15 5.4 Understanding the Likely Implications and Consequences of a Strategy, Policy,

Standard or Procedure ......................................................................................................... 16 5.5 Proactive and Reactive Components to the System ............................................................. 16 5.6 A Local Response to a Local Situation? ............................................................................... 16 5.7 Dissemination of Strategy, Policy and Standards to Regional Offices .................................. 17 5.8 Interface between Individual Strategies, Policies and Standards.......................................... 17 5.9 ‘Greenfield’ v. ‘Brownfield’ Standards ................................................................................... 18 5.10 Network Boundaries and the Extent of Infrastructure to be Maintained ................................ 18 5.11 Marginal Defects .................................................................................................................. 19 5.12 Considering All Road User Groups and ‘Promote and Maintain’ .......................................... 19 5.13 Stakeholder Consultation and Expectation ........................................................................... 20 5.14 Disaster Recovery and Reduced Levels of Service .............................................................. 20


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6 PROGRAMS OF WORK AND SERVICE DELIVERY .......................................................... 21

6.1 Consistently Following Documented Strategies, Policies, Standards and Procedures ......... 21 6.2 Objectively Determined and Prioritised Programs of Work ................................................... 21 6.3 Understanding the Implications of Acting and Not Acting ..................................................... 21 6.4 The Importance of Timely Action.......................................................................................... 22 6.5 ‘Right First Time’ – Logical, Effective Actions ....................................................................... 22 6.6 Innovation ............................................................................................................................ 23 6.7 The Vital Importance of Inspection Systems ........................................................................ 23 6.8 Providing Officers with the Necessary Tools and Training.................................................... 23 6.9 Warning Signage ................................................................................................................. 23 6.10 Redundant Street Furniture .................................................................................................. 24 6.11 ‘The Right Stuff’ – Informed Material Choices ...................................................................... 24 6.12 The Hazards Associated with Loose Aggregate on Road Surfaces ...................................... 24 6.13 The Adverse Impact of Works by Utility Companies ............................................................. 25 6.14 Internal Communication ....................................................................................................... 25 6.15 Reacting to Local Incident Clusters ...................................................................................... 26

7 MONITORING, REVIEW AND CONTINUOUS IMPROVEMENT ......................................... 27

7.1 Learning from Past Incidents and their Outcomes ................................................................ 27 7.2 Risk Registers ...................................................................................................................... 27 7.3 Monitoring of Case Law ....................................................................................................... 27 7.4 Key Performance Indicators ................................................................................................. 27 7.5 Monitoring Trends in Complaints and Requests for Service ................................................. 28

8 SUPPORT SYSTEMS AND RELATIONSHIPS ................................................................... 29

8.1 Record Keeping ................................................................................................................... 29 8.2 Time is of the Essence ......................................................................................................... 31 8.3 The Need for Effective Control of Technical Documents ...................................................... 31 8.4 The Working Relationship with Local Legal Representatives ............................................... 32 8.5 The Working Relationship with Police Incident Investigators ................................................ 32 8.6 The Working Relationship with Contractors ......................................................................... 33

9 ASSET MANAGEMENT AND THE SAFE SYSTEM FRAMEWORK ................................... 34

9.1 Introduction .......................................................................................................................... 34 9.2 The Safe System and Asset Management ........................................................................... 34 9.3 Discussion and Possible Legal Implications ......................................................................... 34

10 CONCLUSIONS .................................................................................................................. 36

REFERENCES ............................................................................................................................. 37

APPENDIX A APPENDIX A – A BRIEF INTRODUCTION TO HIGHWAYS-RELATED CIVIL CLAIMS ........................................................................ 38

APPENDIX B APPENDIX B – A BRIEF HISTORY OF ROAD AUTHORITY CIVIL CLAIMS.................................................................................................... 49

APPENDIX C GLOSSARY ............................................................................................. 57


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FIGURES

Figure 2.1: Flow chart summary of the civil claim process for a highways-related incident .................................................................................................................... 6


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SUMMARY

Claims for compensation brought by road users against road authorities remain a significant issue across Australia. Further, the claims environment varies between jurisdictions (states and territories) and differences have been found in the understanding, urgency and policy responses to the key liability concepts and issues as they relate to highways.

While a number of past and current Austroads guidance documents do include short overview sections on legal matters, the need to provide more detail and context for asset management practitioners has been formally recognised. This report is the response.

It is imperative to note that the objective of this report is to improve awareness and provide practical guidance. It is not a legal textbook or repository of case law, nor does it set out to provide legal opinion. This is the domain of a road authority’s legal representatives.

The underlying principle adopted throughout this report is that preventing incidents occurring through sound asset management practices is a far better strategy than choosing to rebut or defend all claims received regardless of the scenario and technical issues involved. Being able to robustly demonstrate that reasonable and effective measures have been consistently implemented in managing and maintaining the road network will go a long way towards the road authority being able to demonstrate that it has fulfilled its duty of care to road users.

It is essential that asset management practitioners actively consult and work with their authority’s legal representatives regarding all legal related risk management matters. This begins immediately upon receipt of formal notification of a claim, and then subsequently during any formal proceedings should the claim progress. A two-way process is advocated, which includes the need for legal representatives to understand technical concepts and be encouraged to provide feedback on the outcomes of any proceedings as part of a learning and continual improvement regime.

Sections 2 and 3 of this document briefly introduce the history and context of highways-related civil liability claims, with further detail on these topics being provided as Appendix A and Appendix B.

Section 4 introduces the practical guidance provided to asset management practitioners within this document. The guidance is divided into the following four categories, with these categories covered in detail within Sections 5 to 8 inclusive:

Strategies, Policies, Standards and Procedures (Section 5)

Programs of Work and Service Delivery (Section 6)

Monitoring, Review and Continual Improvement (Section 7)

Support Systems and Relationships (Section 8).

Finally, with the emergence of the Safe System approach as the foundation to national and local road safety strategies, the possible legal implications of this approach have been briefly considered in Section 9. More detail on this specific aspect, and more generally, in delivering asset management within the Safe System, will ultimately be provided in the output of current Austroads project (AT1692). Opinion at this stage is that a road authority’s legal strategy is unlikely to need to alter drastically in the short-term should it decide to defend an asset management related civil claim where the implementation of the Safe System is specifically brought into consideration during the proceedings. However, road authorities are strongly advised to become familiar with the practical guidance that is likely to emanate from Austroads project AT1692 later in 2012.


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1 INTRODUCTION

1.1 Background Despite the impact of civil liability legislation enacted in most states and territories of Australia during the period 2002–2003, specific civil claims for compensation brought by road users against road authorities remain a significant issue across Australia. Further, the claims environment varies between jurisdictions (states and territories) and differences have been found in the understanding, urgency and policy responses to civil liability issues as they relate to highways.

At an individual practitioner level, a degree of unease and uncertainty has been detected, especially within those officers responsible for front line delivery or in developing and implementing local policy. The legal process and how claims are considered by the court can seem unusual and complicated and if the nuances of case judgements are viewed in isolation, rather than as part of an overall legal context, it is possible for a degree of perceived inconsistency or unfairness to result.

All of the aforementioned factors have contributed to road authority officers seeking reassurance and further guidance regarding legal issues. While a number of past and current Austroads guidance documents do include short overview sections on legal matters and their context, the need to provide more specific guidance on managing legal risk within the demands of the asset management function has been formally recognised. Road authorities are advised to recognise the importance of the claims received, investigate them, and wherever possible, to identify and effect on-going improvements to local strategies, policies, standards and procedures where considered necessary or desirable.

While this guideline recognises the entire asset management function, its focus inevitably narrows to more traditional road condition and road maintenance issues, as these are known to be by far the most represented among highway-related civil claims.

It is imperative to note that the objective of this document is to improve awareness and provide practical guidance. It is not a legal textbook or repository of case law, nor does it set out to provide legal opinion. This is the domain of a road authority’s legal representatives (either in-house or as a contracted service).

It is essential that asset management practitioners actively consult and work with their authority’s legal representatives regarding all legal related risk management matters. This begins with the receipt of formal notification of a claim, and then subsequently during any formal proceedings should the claim progress. A two-way process is advocated, which includes the need for legal representatives to understand technical concepts and be encouraged to provide feedback on the outcomes of any proceedings as part of a learning and continual improvement regime.

The document has been written to assist all Australian road authorities (i.e. state and local road authorities) and their asset management officers. However, practitioners in New Zealand and/or those working in kindred technical fields (e.g. road safety and traffic management) should still be able to gain useful context and guidance from this document.


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The underlying principle adopted throughout this document is that preventing incidents occurring through sound asset management practices is by far a better strategy than choosing to rebut or defend all claims received regardless of the scenario and technical issues involved. Being able to robustly demonstrate that reasonable and effective measures have been consistently implemented in managing and maintaining the road network will go a long way towards the road authority being able to demonstrate that it has fulfilled its duty of care to road users. Effective record keeping becomes one of the key challenges.

Sections 2 and 3 of this document briefly introduce the history and context of highways-related civil liability claims, with further detail on these topics being provided as Appendix A and Appendix B.

Section 4 introduces the practical guidance provided to asset management practitioners within this document. A total of forty (40) points of guidance have been divided into four categories, with these then covered in detail within Sections 5 to 8 inclusive. The four categories are:

Strategies, Policies, Standards and Procedures (Section 5) – which contains fourteen (14) points of guidance

Programs of Work and Service Delivery (Section 6) – which contains fifteen (15) points of guidance

Monitoring, Review and Continual Improvement (Section 7) – which contains five points of guidance

Support Systems and Relationships (Section 8) – which contains six points of guidance.

The Safe System approach, as introduced in Austroads (2009b), now forms the foundation to the road safety strategies being pursued at national and local levels, and is embodied in the Australian National Road Safety Strategy 2011-2020. The objective is to eliminate death and serious injury on the road — based on the underlying principles of accepting that road users will make mistakes on the road network, that may lead to a crash, and that there are limits to the forces that the human body can withstand (without causing death or serious injury) in a crash.

Section 9 of this guideline briefly introduces the possible legal implications of not implementing the Safe System approach, based on more detailed discussion provided within the development of the documentary output of Austroads project AT1692 Asset Management within a Safe Road System Framework. It is suggested at this stage that a road authority’s legal strategy is unlikely to have to alter drastically in the short-term should it decide to defend a claim where the implementation of the Safe System is specifically brought into consideration during the proceedings. However, road authorities are strongly advised to become familiar with the practical guidance that is expected to emanate from Austroads project AT1692 later in 2012.

1.2 Purpose, Scope and Limitations of this Guideline 1.2.1 Purpose of this Guideline

The principal purpose of this document is to assist road asset management practitioners in their awareness and understanding of the context and importance of legal issues and specifically, compensation claims made by road users against road authorities, through the provision of practical guidance.


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1.2.2 Scope and Limitation of this Guideline This guideline recognises the wide range of road asset management functions and activities. However, given that the vast majority of civil claims against road authorities relate to road condition and road maintenance issues, a focus is given to such activities and works. Also, some reference is made to the design process given that this will inevitably overlap with, and require consideration of, asset management requirements in many cases.

The handling and processing of claims received, which includes an important initial decision as to whether to ultimately reject, settle or formally defend a claim, is largely beyond the scope of this guideline and is the domain of a road authority’s legal representatives. However, such activities are briefly mentioned within the overall context of highway-related civil claims. Specific detail regarding the preparation of a portfolio of evidence to help defend a claim is also beyond the scope of this guideline.

1.2.3 Disclaimer

The guidance provided in this document does not constitute legal advice, nor is the intention to create a legal textbook. Practitioners are reminded to always seek specialist legal advice on legal risk issues and on a case by case basis.

The content of this guideline has been reviewed by a number of legal professionals working for road authorities around Australia. This allows Austroads to believe the document to be appropriate at the time of printing. However, Austroads does not accept responsibility for any legal consequences arising from the use of information herein.

1.3 Key References A number of key references have been identified in the development of this guideline and are introduced in Section 4, with a full reference being provided towards the rear of this document.

The focus has been on identifying practical references developed in Australia and the United Kingdom, rather than necessarily formal legal and academic texts. The United Kingdom is favoured due to it having experienced, since 1980, a broadly similar highways liability position to that currently faced in Australia.

1.4 Dissemination of this Guideline and Ongoing Support The project team responsible for the development of this guideline has been requested to prepare a parallel dissemination and training strategy. This is likely to include thoughts on the development of a presentation package, which can be used by road authorities in-house (or through an approved external provider/s) to train and advise pertinent practitioners within their local asset management and administration support teams.

The need for continued support for this guideline has also been identified. One of the specific tasks likely to be identified is the ongoing monitoring of highways-related civil cases throughout Australia1 with a view to producing regular briefing notes or information bulletins with these being available on a subscription basis from an approved service provider.

1 Using established databases such as the Australian legal database, AustLII, and through internet and media searches.


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2 A BRIEF INTRODUCTION TO HIGHWAYS-RELATED CIVIL CLAIMS

The following text provides a brief introduction for asset management practitioners to the context and significance of highway-related civil claims. Further detail is provided in Appendix A.

A Glossary of Terms is also provided at the rear of this document.

2.1 Why Do Claims Occur? Road authorities have a broad duty of care to road users on their networks and take this duty extremely seriously; constantly seeking to secure positive road safety outcomes aimed at reducing the number of people injured on their roads.

However, when incidents do occur, the road environment and the pertinent road authority come under scrutiny and in many cases, road users will look to seek compensation for their loss2 under the common law and more specifically, in accordance with that jurisdiction’s civil liability legislation.

The foundation for claims is typically an allegation that defective or poorly maintained road infrastructure has caused or contributed to the incident occurring and/or contributed to its severity. However, the role, decisions and actions of the road user are also considered.

Subtle variations in civil liability legislation do exist on a jurisdiction-by-jurisdiction basis, which limit the scope, extent and conduct of all civil claims, and in some cases, introduces specific rules in claims against public bodies, which include road authorities.

In summary, road authorities are at risk of highways-related civil claims. Claims that proceed are typically very closely fought and if successful, the amount of compensation ultimately awarded to an injured person or party can be highly significant.

The multifactor nature of incidents on the highway mean that each claim is unique, with nuances to consider in the specific role, decisions and actions of each person or party involved in its occurrence and/or its severity.

2.2 The Common Law, the Civil Law and the Assessment of Claims The vast majority of road-related compensation claims in Australia are brought under the common law principles of negligence3. The conduct of such claims is then determined by the civil liability legislation that prevails in each jurisdiction.

The road authority is often named as one of a number of defendants to a claim, which may include another driver or road user, another road authority (local council), contractors, subcontractors, consultants, and sub consultants. Road authorities and local councils are often perceived by the public as an ‘easy target’ for litigation4.

2 A loss can include the road user’s injuries and associated loss of earnings, medical expenses, property damage etc. 3 Although rare, claims are sometimes brought under nuisance. In Victoria, the Road Management Act 2004 (as amended on 1 January 2010) sets out the statutory duties of road authorities, and therefore, the majority of highways-related claims in that state allege a breach of statutory duty. 4 See Appendix A for further explanation.


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In civil cases, the onus of proof rests with the claimant, i.e. to be successful in their claim the claimant must be able to prove a number of defined elements of, and allegations contained within, the claim. One of these elements is sometimes known simply as ‘causation’ — the claimant must be able to demonstrate that there is a direct causal link between the alleged defective infrastructure and the causation and/or severity of their incident.

The burden of proof in civil cases is ‘on the balance of probabilities’, as distinct from criminal cases where the more onerous burden of ‘beyond reasonable doubt’ applies.

Potential claims are received in a number of formats (e.g. telephone, letter and e-mail). A road authority will first need to assess the content and determine whether a claim is actually being made, or if the correspondent is in fact merely notifying the authority of an incident, providing information, or submitting a request for service, or making a more procedural type complaint.

Where it becomes obvious that a claim is in fact being made, the potential claimant is then often requested to complete an official incident proforma and/or to supplement their initial approach with a formal letter advising of the intention to commence legal proceedings.

At this stage, the road authority’s legal representatives should be consulted and a joint process begins in assessing the incident from both legal and technical perspectives to determine whether the claim against the road authority has any basis and/or prospect of success.

Although local procedures vary, in general terms where it is believed that a claim has little or no basis, it is typically rebutted immediately in writing. Where it is believed that a claim may have some basis, an internal decision is typically required as to whether to settle or defend the claim, based on the information available (e.g. strategy, policy, standards and procedural documentation to determine what the road authority said it would do in defined situations, and works/delivery documentation to determine what the road authority actually did in this particular situation).

Many claims are settled early, i.e. before reaching a courtroom, and there can be a number of valid reasons for doing so. These are explained in Appendix A.

However, if a claim appears to be proceeding, the extent of the liability of each person or party named in the civil action is ultimately discussed and sometimes expressed as a percentage, out of a cumulative liability of 100% for the incident. This means that a road authority is rarely held 100% liable, even in a successful claim, but the typical financial value of a claim reaching this stage means that the actual percentages allocated are often very closely fought.

If a civil claim does reach the courtroom, all of the involved parties get an opportunity to put forward their evidence and to cross-examine the other parties in front of a judge. Civil cases are most typically heard by a judge only and rarely involve a jury. The judge is impartial and reaches a decision based on the facts of the case and the judgements in any precedent cases.

Practical experience indicates that it is perhaps wise for road authorities to expect, and be prepared to react to, gaps in the information, data and documents available when considering the organisations legal position. Similarly, the road authority must consider how best to effectively present specialist technical concepts to the courtroom.


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Local civil liability legislation will determine whether the unsuccessful party is permitted to seek to appeal an original judgement. Appeals are only permitted on specific points of law, rather than any generic disappointment/dissatisfaction at the decision. The ultimate destination in the appeal process is the High Court, where a special leave to appeal must be sought and cases tend to be those of national interest.

Figure 2.1 provides a flow chart summarising the main steps in the civil claim process, as discussed above. A more detailed flow chart is included as Figure A 1 in Appendix A.2

Figure 2.1: Flow chart summary of the civil claim process for a highways-related incident


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Incidents can trigger parallel coronial and police investigations, which also often include some consideration of the road authority’s level of service, and the condition/physical characteristics of the infrastructure. Such investigations typically commence ahead of any civil proceedings.

2.3 Why are Highway Claims so Significant? 2.3.1 A Dissatisfied Customer Road authorities have been established to manage and maintain a defined network of public roads and while road user expectation is often found to be extremely high, it can be argued that a claimant is nonetheless a dissatisfied customer. Accordingly, road authorities are advised to recognise the importance of the claims received, investigate them, and wherever possible and desirable, to identify and effect on-going improvement to local strategies, policies, standards and procedures.

2.3.2 A Drain on Resources ARRB Group (2012) categorises highway-related civil claims into attrition-based (i.e. low monetary value individually, but received in high volume) and catastrophic-based (i.e. complex one-off events with the potential to be of very high monetary value). Both claim categories can be financially significant to a road authority. Detail is provided in Appendix A to explain why this is the case.

The considerable resources involved in handling, investigating, and in some cases defending, civil claims should not be forgotten; resources that many would argue would be better utilised in managing and maintaining the road asset. Such an argument is supportive of the ‘prevention is better than cure’ strategy promoted throughout this guideline.

Statistics relating to the number, prevalent technical issues, outcomes and values of highway-related civil claims in Australia and UK are included within Appendix A.

2.3.3 A Significant Test of Asset Management Systems and Communications A number of legal commentaries have suggested that the concepts and processes of highways-related civil liability exist to be a deterrent to road authorities against future inaction. This further reinforces the need for road authorities to learn from past incidents and legal cases – with the objectives of preventing similar incidents from occurring and in acting as a catalyst for continual improvement of asset management related strategies, policies, standards and procedures.

It is similarly held that legal proceeding are a significant test of the systems of road authorities, with individual elements often coming under intense scrutiny, both internally and, for example, during settlement discussions or ultimately, in the courtroom.

ARRB Group (2012) reports that past analyses have found that 95% of highways-related civil claims relate to the management and maintenance of the existing road asset, with the exact condition of the road surface at the time of the incident in question almost always a major point of discussion.

Highways-related civil liability claims are currently brought against a road authority as one entity (i.e. at an organisational level and not against an individual or defined team or section within the


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road authority5). This infers that kindred strategies and policies within the organisation need to dovetail effectively and that there is effective communication throughout, with key information and data (e.g. traffic volumes, crash data etc.) being exchanged between the teams and sections that need it. These aspects are discussed in detail within Section 4 to Section 8 of this document.

The allegations set out in a claimant’s Statement (or Particulars) of Claim will almost always cover a number of specific issues or technical areas6 (an example is provided in Appendix A). These specific issues are typically supplemented by more generic allegations; e.g. in its provision of a line marking system at an intersection, the road authority has led the road user into a ‘trap’ (a danger) when the road user has followed or interpreted that system, or that the authority has failed in its generic duty of care to provide a suitably safe road environment for the claimant. Therefore, the overall context of a claim must also be considered.

5 This situation may change with impending amendments to Commonwealth Occupational Health and Safety legislation – road authorities are advised to seek professional legal advice. 6 Although the claimant must be able to prove that each one of the issues raised has a sound basis.


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3 A BRIEF HISTORY OF ROAD AUTHORITY CIVIL CLAIMS This section is intended to provide a brief, working overview of the historical and current situation with claims against road authorities. Further detail is provided in Appendix B.

The information provided in this section and further detail in Appendix B should be taken as generic in its applicability to Australia. It does not attempt to detail the nuances in, or differences between, the current legislation and case law position in each of the states and territories of Australia. Therefore, practitioners should familiarise themselves with the key elements of the current legal position in their own state and seek professional legal advice on any matters of detail or uncertainty.

3.1 Position Prior to 31 May 2001 Prior to 31 May 2001, Australian road authorities received significant protection from road-related claims through the existence of what was known as the ‘highway rule’. Under the ‘highway rule’ road authorities could only be held liable under misfeasance (in simplest terms, effecting a maintenance action at a location, but doing it negligently) and could not be held liable for any failure to act (a concept known as nonfeasance)7.

It was argued that this position provided no incentive for road authorities to take action to identify and mitigate emerging risks. A purely reactive approach was perpetuated and road authority strategies, policies, standards and procedures were rarely tested in court.

Many legal commentators began to question whether the ‘highway rule’ remained in the best interest of society and whether general principles of negligence would better be applied to highways-related civil liability cases.

Uncertainty resulted and two cases (often referred to simply as Brodie8 and Ghantous9) were identified to reach the High Court to examine and redefine the ‘level’ of, and determinants for, highways-related civil liability.

3.2 The High Court Judgements in Brodie and Ghantous The judgements in the cases of Brodie and Ghantous were handed down on 31 May 2001 and stretch to hundreds of pages. Hence, only a very brief, working summary is provided here, with slightly more detail provided in Appendix B.

In the most simplistic terms, the outcome of the cases was the immediate abolition of the ‘highway rule’ and the underlying concept of nonfeasance; so changing the highways-related civil liability landscape overnight. However, the outcome was not totally negative towards road authorities, who would now be able to defend claims by successfully demonstrating that they had effected reasonable measures in managing and maintaining their highway networks, and have some surety in the judges’ finding that there was no requirement for a road to be in a perfect state of repair at all times.

7 The SCOTI (formerly ATC) working paper Road Authority Response to High Court Abolition of Non-Feasance Immunity, dated May 2002 quotes that the Australian Local Government Association had advised that the highway rule allowed approximately 50% of all roads-related claims received by councils to be rejected. 8 Brodie v. Singleton Shire Council (2001) HCA 29. 9 Ghantous v. Hawkesbury City Council (2001) HCA 29 (originally [1999] NSWCA 51).


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3.3 After Brodie and Ghantous (May 2001 to date) A period of debate and uncertainty resulted, with some fearing that a floodgate for claims had been opened. A number of road authorities responded immediately by reviewing and developing their asset management systems. Many impressive developments resulted in areas such as inventory collection and inspection systems.

Around the same time, a more general civil liability crisis came to a head, having a major impact on public life throughout Australia. The collapse of a major insurer (namely HIH) only seemed to exacerbate the situation.

A New South Wales led, but nationally encompassing, review of civil liability resulted, with many associated reviews taking place at a more local level. Federal, state and local bodies representing road and transport interests (e.g. TISOC10, Australian Local Government Association, Austroads) considered and documented their course of action, e.g. an Austroads action plan was prepared addressing the abolition of non-feasance within the context of the emerging civil liability crisis.

In 2002 and 2003, the first amendments to often longstanding state-based civil liability legislation assented, re-introducing some clarity to civil liability and importantly, greater certainty for road authorities. However, the precise approach and detail adopted with respect to highways was (and remains) subtly different in each state11. Perhaps the most important points to emphasise from are:

New South Wales, followed by a number of other states, introduced a ‘special protection’ for road authorities, which remains in place at the time of writing – although it is vital to note that this does not constitute a restoration of the ‘highway rule’ and its blanket immunity.

The introduced legislation includes a provision that for a claim for inaction to be successful, the claimant must successfully prove that the road authority had ‘actual knowledge’ of the alleged defective infrastructure.

South Australia restored the ‘highway rule’ and this position remains at the time of writing of this guide.

Victoria temporarily restored the ‘highway rule’ until the development and introduction of its Road Management Act 2004 (amended 1 January 2010), which details a number of statutory duties for road authorities in that state.

In more general terms, the developments after the cases of Brodie and Ghantous have:

helped road authorities in determining the likely validity of any claim received and what is likely to be required in mounting an effective defence to a claim, if desired

introduced the concept of ‘actual knowledge’

allowed public bodies (which include road authorities) to mount a defence to a claim based on an argument of competing needs for resources across the many functions it has to fulfil

permitted many road authorities the opportunity to issue an apology (or an expression of regret) without admitting liability

resulted in a reduction in the value of successful claims through the introduction of caps to compensation for various types and severity of injury.

10 Formerly SCOT. 11 See table provided in Appendix B.


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Notwithstanding the above summary, it is strongly recommended that practitioners familiarise themselves with further detail regarding the current legislation and highways liability position within their state.

3.3.1 Contractors and ‘Actual Knowledge’ The case of Leichhardt Municipal Council v. Montgomery12 resulted in a High Court judgement on 27 February 2007. The proceedings are significant as they consider in some detail the obligations of a road authority with respect to its contractors. Further detail is provided in Appendix B.

Whether a road authority had ‘actual knowledge’ of a risk or defect is generally considered in state legislation and has ultimately become a key debating point in any highways-related civil claims.

State specific case law has provided some local guidance on what constitutes ‘actual knowledge’ in terms of the type of knowledge (information) required and precisely who receives it within the organisation. However, the judgements are considered somewhat unclear and a number of recent legal commentaries have suggested that a High Court test case may well be required to set a clearer, national position.

3.3.2 Victorian Road Management Act 2004 (Amended 1 January 2010) Perhaps the most interesting development following the cases of Ghantous and Brodie has occurred in Victoria, with the introduction of the Road Management Act 2004 (amended 1 January 2010).

In very basic terms, the Road Management Act 2004 (amended 1 January 2010) establishes the general principles of, and a statutory framework for, the management and maintenance of the road network in Victoria. Further detail is provided in Appendix B of this guideline and within Commentaries D and F of Austroads (2009a) which also includes extracts from the VicRoads Road Management Plan.

3.3.3 Summary While it can be demonstrated that developments in legislation in 2002–2003 have led to a fall in the overall number of claims brought against road authorities, the issue of highways-related civil liability remains of significance. Subtle nuances in the liability position have already occurred, and will continue to occur, as case law (precedent) emerges. Therefore, road authorities are advised to keep up-to-date with developments through their local legal representatives.

3.4 The Future? Many legal commentators have suggested that historical patterns in civil liability resemble the motion of a pendulum, i.e. there are phases where legislation and case law allow the outcomes to be more favourable to the claimant, and counter-phases where the outcomes are more favourable to the defendant/s. The analogy can be applied to highways-related civil liability: the position under the ‘highway rule’ favoured road authorities; following the abolition of the ‘highway rule’, the claimant was favoured for a period of two or three years (say to 2003); before the pendulum again swang back in favour of the road authority under the direct influence of civil liability legislation, and a position that remains today.

12 Leichardt Municipal Council v. Montgomery (2007) HCA 46.


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If the pendulum analogy is accepted, if follows that there will inevitably be a future time where the pendulum will swing back, favouring claimants over road authorities. However, the catalyst for a swing back, when it will occur, and how it might affect the volume/value of highways-related civil claims, remains largely unknown. Further discussion is provided in Appendix B. It is suggested that road authority officers continue to move forward with a systems-based asset management approach and retain regular communication with their organisation’s legal representatives on this issue.


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4 PRACTICAL GUIDANCE IN PREVENTING (AND REDUCING EXPOSURE TO) HIGHWAYS-RELATED CIVIL LIABILITY CLAIMS

4.1 Underlying Strategy – Prevention is Better Than Cure As previously advocated, by far the best way for a road authority to prevent, and hence reduce its exposure to, highway-related civil claims is to prevent incidents from occurring in the first place.

A systematic approach to asset management will undoubtedly assist, which includes ensuring that the recognised building blocks of a solid and effective asset management system (e.g. network inventories, road hierarchies, network inspection systems, network condition assessments, service/intervention levels, protocols for determining prioritised programs of work) are in place and contribute to positive outcomes, rather than being tuned, or reactive, to civil liability legislation or particular case law.

Ensuring that strategies, policies, standards and procedures are formally approved, documented and achievable within the available resources is also important.

Investigating and learning from previous incidents and claims are also vital elements of this underlying strategy.

Assessing the validity and likely prospects of a claim (and ultimately whether to rebut, defend or settle) is largely beyond the scope of this guideline, being the domain of the road authority’s legal representatives. However, it is important to remember that if it is decided to commit to defend a claim, the road authority needs to be able to demonstrate that it has been consistently implementing reasonable strategies, policies, standards and procedures. This approach relies upon good record keeping and effective communication and liaison between technical officers and legal representatives. Further discussion on these important aspects is provided in Section 8.

Any evidence that a road authority can identify and produce to form and support a compelling argument that it is implementing reasonable measures in managing and maintaining the highway (i.e. it has fulfilled its generic duty of care) and is efficiently using its resources (which in practice are often limited in terms of people and resources), will be invaluable.

Local systems must have a sound engineering rationale and be formed with the best intent in terms of a service outcome/s (network safety and public service), rather than any deliberate goal of automatically rebutting as many of the claims received as possible.

A sound risk management approach to asset management is advocated. In broad terms this means seeking to alleviate risks to road users within a reasonable timescale. This involves understanding and using many of the legislated powers of a road authority to identify, assess, respond to (or warn of) inherent risks on the network.

Fear of civil litigation should never be the primary concern when forming a local strategy, policy, standard or procedure; making a local decision or determining an action; nor should it stop reasonable innovation and pilot studies from taking place that have the objective of securing a better outcome for all road users.


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4.2 Specific Guidance The specific guidance contained within Section 5 to Section 8 of this guideline has been distilled from the knowledge, skills and experience of the project working group and with particular consideration of material from the following resources (full references are provided at the back of this guideline):

ARRB Group: course material from knowledge transfer workshop (Highways Liability) delivered from 2005 and ongoing

Statewide Mutual: Best Practice Manual – Bitumen and Asphalt Resurfacing, version 3, September 2010 (Statewide Mutual 2010b)

Statewide Mutual: Best Practice Manual – Roads, version 4, September 2010 (Statewide Mutual 2010a)

UK Roads Liaison Group: Departures from Standards – Procedures for Local Highway Authorities, September 2011 (UK Roads Liaison Group 2011)

Road Management Act 2004, Victoria (amended 1 January 2010)

Roads Board UK: Well Maintained Highways – Code of Practice for Highway Maintenance Management (2001, revised 2005)

Roads Board UK: Highway Risk and Liability Claims: A Practical Guide to Appendix C of the Roads Board UK Report ‘Well Maintained Highways: Code of Practice for Highway Maintenance Management’ (2nd edition July 2009, 1st edition November 2005).

In addition to the above resources, the Austroads and ARRB project managers for this project met with Mr Ron Barnes, General Manager of Echelon (an insurance advisor to Statewide Mutual in NSW) in Sydney on 10 October 2011 to discuss the latest and emerging issues in highways-related civil liability.

The following four headings have been identified to categorise the specific guidance provided:

strategy, policy, standards and procedures (Section 5)

programs of work and service delivery (Section 6)

monitoring, review and continual improvement (Section 7)

support systems and relationships (Section 8).


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5 STRATEGY, POLICY, STANDARDS AND PROCEDURES

5.1 Statutory Obligations and Safety First! It is suggested that where a reduced funding or resource scenario exists, the focus should be on fulfilling statutory duties (defined by national and state legislation, as applicable) and activities with direct safety implications, ahead of any discretionary provision or activity (e.g. where the road authority applies a power to introduce an item on the road network, such as an information sign).

The author considers that perhaps the clearest practical example of this approach is contained within the UK Code of Best Practice for Highway Management (2005) which states: ‘available funding for highway maintenance will provide some flexibility for authorities to pursue a regime of assessment and rational planning of programmes and priorities’, but ‘where this is not the case, statutory obligations for network safety will need to take precedence’.

The same document also introduces its 3Ss of road network management, which allows road authorities to identify the broad return/s for any asset management activity or task in terms of three distinct outcome areas:

Safety – complying with statutory obligations and meeting road users’ needs for safety.

Serviceability – ensuring network availability, achieving network integrity and reliability, and enhancing condition.

Sustainability – minimising costs over time, maximising the value of the network to the community, and maximising environmental contribution.

5.2 Ensuring a Logical ‘Top Down, Bottom Up’ Document Hierarchy Integration and logical consistency should exist within a local documentary hierarchy, i.e. corporate/organisational objectives should feed into asset management strategies, which in turn cascade into policies, standards and procedures. The important contribution of lower level, delivery-related documentation should also be referenced within documents further up the hierarchy.

5.3 The Need for Clear, Unambiguous Statements of Strategy, Policy, Standards and Procedures

Clear, unambiguous documentation enables the framework of the asset management regime to be explained – setting out what the organisation is going to do, how it is going to do it (i.e. to what standards, and how works are going to be identified, programmed and co-ordinated) and when this should be completed.

Published documents should give due consideration to the lay (non-technical) nature of their likely and intended audience. Such an approach is also likely to assist a road authority’s legal representatives and ultimately the court in any legal proceedings. A prime example of this approach would be with an incident involving consideration of road surface skid resistance or the phasing of traffic signals.

While the presence of documented strategies, policies, standards and procedures is extremely valuable in supporting a defence to claims/litigation, their mere presence should not be relied upon to provide any kind of legal immunity.


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It is also essential that documented strategies, policies, standards and procedures are consistently implemented in practice and that this can be demonstrated through contemporaneous records.

5.4 Understanding the Likely Implications and Consequences of a Strategy, Policy, Standard or Procedure

Under the risk management approach advocated, a good understanding is required of the likely success, implications and consequences of any strategy, policy, standard or procedure to be introduced. Foreseeable risks and hazards need to be assessed and mitigated, where required and possible. It must be remembered in legal proceedings that a judge will consider a professional’s ability and opportunity to identify, consider and mitigate risk to be much greater than a layperson’s, due to the former’s assumed knowledge, skills and experience.

As an underlying principle, new or revised strategies, policies, standards and procedures should not introduce a greater of level of foreseeable risk than their predecessor/s.

Monitoring and evaluating the impact of strategies, policies, standards and procedures becomes vitally important, as does the investigation of any future incidents where the new or revised strategy, policy, standard or procedure appears to have contributed to the incident and/or its severity. The underlying objective should be continual improvement and reduction of risk.

5.5 Proactive and Reactive Components to the System As far as resources will allow, sound asset management strategies should incorporate proactive/preventive elements (e.g. use of road condition data to determine trends, use of network risk assessments etc.) as well as reactive elements (e.g. investigating and learning from incidents that have occurred).

5.6 A Local Response to a Local Situation? When developing an asset management related strategy, policy, standard or procedure, the aim should also be to come up with a local response that is fit for purpose and consistently achievable within the available local resources.

The first part in this process is to identify and consider available international and national best practice and guidance documents, and what peer organisations (neighbouring and/or similar road authorities) have in place. However, as valuable as such resources can be, as guidance, following them to the letter must not be seen as a guarantee of a safe outcome at a location, nor are they always fully applicable to a local situation. Professional judgement must be used in determining if the particular concepts and clauses within a best practice or guidance document would actually be better replaced by an amended or locally drafted item.

It is important to remember that in the conduct of any legal proceedings, national best practice or guidance will be the default standard used in the absence of a locally developed document. Therefore, it is crucial when developing a local response that significant departures from national best practice or guidance are formally identified and the rationale explained, most commonly within a contemporaneous local policy development file. Having such a file readily available during any legal proceedings will prove invaluable.


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ARRB Group (2012) emphasises its experience that it is easier for a road authority to justify the setting of less ambitious (yet still reasonable) policy or standard that is implemented in full, 100% of the time, than to justify a more ambitious policy (albeit often set with the best of intent), which is only achieved in practice 95% of the time.

The statutory defence to claims provided within some jurisdictions (e.g. Section 101 of the Victorian Road Management Act 2004 (amended 1 January 2010), Section 58 of the UK Highways Act 1980) provide a useful reminder of the important concept of having levels of service assigned on a site-by-site basis according to a road’s/footway’s/cycleway’s importance and usage (i.e. its position in a designated hierarchy).

It is also important to recognise that road users prefer reasonable consistency of policies and standards irrespective of administrative boundaries and, therefore, liaison and communication between adjoining road authorities on these matters is advocated, even if this only extends to an exchange of relevant documents. Major inconsistencies between levels of service either side of a boundary may need to be reviewed.

5.7 Dissemination of Strategy, Policy and Standards to Regional Offices

It is relatively common for asset management strategies, policies and standards to be developed and set at a corporate (head office) level, to then be implemented at a sub or regional office. In such situations, there is an obvious need to ensure that regionally-based staff know of their existence and are consistently implementing them as documented, or where this is not being achieved, recording and advising the reason/s for any departure. It follows that regional/field based officers should be consulted during the development and/or review of strategies, policies, standards and procedures and are actively included in related dissemination and training activities.

5.8 Interface between Individual Strategies, Policies and Standards The interface between different and kindred strategies, policies, standards and procedures should be considered to ensure that an increased level of risk does not result from any anomalies or omissions at, or resulting from, the interface.

An example could be an environmental policy to reduce the frequency of roadside vegetation cutting with the laudable intention of allowing natural flora to flourish, that then has an unforeseen adverse implication for the visual inspection of a drainage feature. In this example the possible outcome could be a blockage in the drainage feature being unnoticed, with the end result being a skidding-related incident on a road where ponding seldom occurs.

Inevitably, trade-offs will be necessary at the interface between strategies, policies, standards and procedures, but care should be taken to ensure that the position reached does not jeopardise any one of the elements, or increase the overall level of risk presented to the road user. This requires a holistic approach to asset management and more specifically, a good practical knowledge of the relationship between action, inaction and likely consequences in a wide range of situations.

Asset management practitioners also need to guard against inadvertently introducing what is strictly a ‘defect’ on the network by setting a new/retrofit provision standard that is inconsistent with current maintenance intervention levels. An example of this could be where a decision is reached to introduce a 90 mm deep precast concrete longitudinal drainage section at the carriageway edge to formalise drainage provision at a location where no previous provision was made and where a 60 mm carriageway edge drop off maintenance intervention level historically applied to that


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location. The ultimate outcome is an ‘engineered’ defect. Such anomalies/inconsistencies should be identified in advance, wherever possible, and resolved prior to implementation in the field.

5.9 ‘Greenfield’ v. ‘Brownfield’ Standards The current debate regarding specifications and standards to apply at ‘greenfield’ (e.g. new build) and ‘brownfield’ (e.g. existing) sites largely concerns the design function and the major retrofitting of infrastructure, rather than routine highway maintenance functions and activities per se. Therefore, only limited consideration of this issue is provided within this guideline, with other documents within the Austroads asset management series providing more detailed guidance to practitioners.

The main concern of practitioners is that greenfield standards are often considered too high, not fully applicable to, or consistently achievable at, existing brownfield locations.

It is also argued that greenfield standards can be unnecessary constraints at a location, stifling innovation and sometimes even precluding the implementation of effective, but low cost, engineering solutions.

It is important that where a brownfield standard is adopted at a greenfield site, and vice versa, its usage can be explained and justified as suitable at that location and that road user safety has not ultimately been compromised.

UK Roads Liaison Group (2011) states that in defending the use of a departure from a greenfield standard:

The highway authority would need to be able to demonstrate that they exercised a reasonable level of professional skill and care in the submission and determination of a departure and that this process is easier and less expensive if good records exist and if exhaustive retrospective investigation of documents can be avoided.

A number of the references and persons consulted in the development of this guideline suggest that in considering the greenfield vs. brownfield debate, road authorities should place more emphasis on educating its stakeholders in the subtle, yet significant difference between the routine maintenance and network improvement elements of asset management.

Notwithstanding, it is also suggested that this issue is best presented in a proactive manner, showing that incremental network improvement approaches at brownfield sites can still deliver significant community benefits, not least in the reducing the number of people killed and seriously injured on a local road network.

5.10 Network Boundaries and the Extent of Infrastructure to be Maintained

Network boundaries need to be accurately identified and widely understood and disseminated to avoid any defaults on service due to misunderstandings between neighbouring road authorities as to who is actually responsible for managing and maintaining a particular section of road or highway feature.

Uncertainty can also arise, and should hence be avoided, in cases where asset maintenance responsibilities are shared with a local council, and/or utility companies have influenced the state and condition of the highway through their activities.


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Investment in establishing and regularly updating asset registers and network inventories is considered important to enable an accurate and current picture of what has to be managed and maintained and enable forward planning.

It may also prove beneficial to formally document and disseminate policy regarding what action a road authority will take (if any) on roads outside of its jurisdiction, e.g. a road authority determining a policy on acting on a private or local council road in response to, say, an urgent safety concern.

5.11 Marginal Defects A clear, unambiguous statement of policy, standards and procedures relating to the identification and rectification of highway defects is essential; detailing the types and extent of defects that will be identified, what action will be undertaken in each case, and within what timeframe.

In doing so, it is suggested that specific consideration should be given to what are sometimes called ‘marginal defects’, i.e. defects found to be at, or slightly above or below a specified standard, and hence prompting debate as to whether action should result or not. Consistency in decision making by officers on the ground is advocated in such scenarios, whether or not this ultimately requires officers to err on the side of safety (and act) in all such situations.

5.12 Considering All Road User Groups and ‘Promote and Maintain’ The needs, limitations and vulnerabilities of all legal road user groups should be considered (e.g. cyclists, motorcyclists, pedestrians, mobility impaired etc.) when determining strategies, policies, standards and procedures.

Specific interactions with known safety implications (e.g. potholes and their possible effects on the stability of cyclists/motorcyclists) and the relative significance of a transport mode on a particular road feature (e.g. the needs of cyclists should be given prior consideration on an off-road cycleway over the needs of pedestrians that might also use that facility) need to be considered.

Many important and useful items are placed on the road network by exercising discretionary powers. It is important to ensure that such items need to be included within an appropriate inspection and maintenance regime. This can of course be complicated by the fact that the person or team in the road authority introducing the item can be outside of the maintenance team. Effective communication is required in such scenarios.

It can also be the case that footways, cycleways, etc. are actively promoted by another team or section within the road authority or perhaps within another government department or body, meaning that an appropriate, ongoing asset maintenance response may become even more significant.

It is similarly important that asset management officers communicate and work with designers to ensure that any new infrastructure introduced can physically be maintained, in safety, and within the inventory of existing equipment and within reasonable capability of its officers and/or contractors.


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5.13 Stakeholder Consultation and Expectation Engaging and consulting with stakeholders, and managing their expectations, have all become well defined and understood concepts in asset management. Such undertakings are also important with regard to this guideline, as past cases have indicated a degree of criticism of road authorities for continuing to do what they have always done and in providing what they have always provided. It is suggested that there is advantage in regularly reviewing and challenging existing strategies, policies, standards and procedures to determine if they continue to be appropriate and are actually consistent with what stakeholders have formally advised that they actually want and are expecting.

5.14 Disaster Recovery and Reduced Levels of Service It is not often recognised that it is an acceptable position to move to a reduced level of maintenance and other service during adverse events (e.g. floods, earthquakes), enabling the road authority to focus on safety and network preservation related activities. Once the situation is under control or has subsided, documented service levels can be restored.

There is a logical and defendable rationale behind such an approach, supported by an onus on road users to drive according to conditions within traffic codes. However, it remains vital that record keeping obligations are not neglected during such events, as basic details such as the dates and times of when the reduced level of service was introduced and ceased, what signs and warnings were deployed etc. may become important in any future legal proceedings.


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6 PROGRAMS OF WORK AND SERVICE DELIVERY

6.1 Consistently Following Documented Strategies, Policies, Standards and Procedures

The need to consistently follow documented local strategies, policies, standards and procedures has been introduced previously and largely is self-explanatory. Any departures should be carefully considered beforehand, have a compelling rationale, be robustly recorded, and are likely to require formal approval by senior management in the majority of circumstances.

6.2 Objectively Determined and Prioritised Programs of Work Programs of work are the backbone of the delivery function of an asset management system.

It is substantially easier to explain and ultimately defend a works program if it is developed and prioritised objectively, i.e. it is data-led and uses established/recognised equations, rules and weighting factors etc. to produce it, rather than having to explain in some detail what might otherwise be a highly subjective process.

Local political pressure on programs of work, e.g. whether a specific site should be included within and/or rise up a particular works program, should be resisted as far as possible, as it can introduce subjectivity into the process and lead to a more deserving site missing out on maintenance and the authority ultimately accepting/carrying any subsequent increase in risk at that location.

Practical experience shows that some asset management officers believe that developing a prioritised works program that cannot be fully funded (i.e. a cut-off point is required based on the available budget/resources) will greatly increase the authority’s exposure to highways-related civil claims. This concern is largely unfounded, as long as the list of sites and its prioritisation is reviewed regularly (typically annually) to reflect any emerging or accelerated local risks. The judgements in the cases of Brodie and Ghantous reaffirm that there is no expectation that a road authority has to address everything immediately, or have its road network in a perfect state of repair at all times.

6.3 Understanding the Implications of Acting and Not Acting There is a need to consider and understand the implications of acting and not acting at a location.

This guideline commends the following basic principles in this regard:

If a hazard or risk exists that, in the opinion of the road authority’s officers, poses a significant risk to public health and safety, then all reasonable steps should be undertaken to mitigate, rectify or remove the hazard.

In assessing the significance of the risk, the road authority’s officers should adopt the principles of what is now known as ‘the calculus of negligence’, which in practical terms includes consideration of:

— the authority’s documented policies and standards

— the likelihood and consequences of the potential events that could create harm

— whether the risk is reasonably foreseeable (not fanciful)

— the personal responsibility of affected stakeholders and road users to recognise risks and/or mitigate behaviour against obvious and inherent risks


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— the costs of obviating the risks, including difficulty and inconvenience.

If it is not possible to rectify or remove the hazard immediately upon identification, all measures that are reasonably necessary to safeguard road users and others (including the erection of warning signs, barriers and the provision of traffic control) should be undertaken until such time as repair or removal can be undertaken or a senior road authority officer directs otherwise.

It is important to remember that hazards and risks may not be obvious and may be insignificant or significant in different circumstances, e.g. mix and volume of traffic, prevailing weather. Similarly, hazards and risks previously considered, and deemed insignificant, may become significant due to accumulation and time effects.

While not directly related to this sub-heading, it is also suggested that road authority officers remain realistic about the original placement and function of an existing item on the network. For example, if it is no longer known why an item was originally introduced or what function/capability it now fulfils, this should be acknowledged, rather than suggesting that the item or feature has a function or capability that cannot be substantiated. An example could be incorrectly claiming that a wire mesh fence placed alongside a low volume rural road for the purpose of demarcating land ownership and deterring fauna from entering the road environment would provide for significant vehicle retardation in any loss of control impact.

6.4 The Importance of Timely Action Asset management activities and works need to be identified, planned and implemented in a timely and prompt manner. Experience shows that delays can often be difficult to justify, especially if the reason for the delay might be seen as somewhat tenuous or unreasonable to a layperson or courtroom.

It should be considered that any delay may require an alternative or temporary risk management measure to be adopted (e.g. the use of a warning sign) and that as a very minimum, the reason/s for any delay (foreseen or unexpected) should be formally recorded.

6.5 ‘Right First Time’ – Logical, Effective Actions Experience in previous highways-related civil cases is that in general terms, road authorities should avoid any decision or action that the lay public might justifiably consider without obvious logic, basis or rationale, including where the road authority cannot reasonably prove that it was acting in the best interests of the community. The risk of criticism can be greatly mitigated by always following industry good practice as presented in locally documented strategies, policies, standards and procedures, and through being prepared to explain what can sometimes be complex technical concepts containing a number of nuances.

Every reasonable effort should be made to undertake a one-off, permanent repair at a location, rather than having to return to a location on multiple occasions. An example of this could be a drainage grating that regularly comes loose under trafficking or a location on the road where the same pothole regularly forms. Multiple, short-term repairs are prone to bring about further disruption as works are repeated, reduce operational efficiency and often significantly increase overall repair costs. Experience shows that the lay public are often (and rightly) critical of situations where this occurs.


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6.6 Innovation As previously discussed in this guideline, a fear of possible future litigation should never prevent road authorities from innovating, e.g. trialling new materials, maintenance techniques or equipment. However, the rationale behind the undertaking of a trial needs to be formally documented and the performance of the item or technique robustly evaluated. Consideration may also need to be given to the placement of signage summarising the objective, extent and duration of a trial.

6.7 The Vital Importance of Inspection Systems A well-considered, robust visual inspection regime is the heart of any road asset management system, as it has the primary objective of identifying defects requiring immediate action (often called Safety Defects or Category 1 defects) and as desired, lesser priority and emerging defects that can be considered for inclusion in longer term programs of work. The findings of visual inspections are often supplemented by reports from the public and the road authority’s own officers, and the collection of road condition data (e.g. roughness, rutting) to further inform decisions made.

The frequency of inspection is to be determined by the use of the road, footway or cycleway concerned, i.e. its position within the road authority’s hierarchy.

The documented inspection regime must be consistently implemented and this requires adequate consideration of officer training and auditing requirements.

Statewide Mutual (2010a) stresses that a road authority’s vulnerability to a civil claim will typically increase as a result of ‘failing to inspect’ and ‘failing to respond to notified defects promptly’.

6.8 Providing Officers with the Necessary Tools and Training In setting and rolling out a policy, standard or procedure, it is considered essential that the road authority officers tasked with implementing it are given the necessary tools and training to then use in the field, e.g. if a decision is reached to adopt a footway trip intervention level of say 20 mm, officers must be provided with a tool or gauge to allow an accurate, objective and consistent assessment of that parameter. In other situations, new skills and hence, training to provide those skills, may be required.

6.9 Warning Signage The use of warning signage at a location can be a highly effective short-term risk mitigation strategy. However, experience of legal proceedings is that they often allege and therefore, consider in depth, signs that are missing and inappropriate usage or over usage of signage.

It is strongly recommended that road authorities are able to show that they have followed established national and local policies, standards and procedures (e.g. Australian Standard AS1742, locally developed worksite guides, etc.) in the consideration and design of a warning sign layout for a site. It also follows that the physical placement of the signage on the site must reflect the selected and documented (drawn) layout.

Warning signs are often retained at a location over a lengthy period, such that they effectively become a semi-permanent or permanent feature. It is suggested that this should be avoided wherever possible, as the original ‘trigger’/root cause for the sign is then never addressed. The aim


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should be to remove warning signs immediately after a mitigation response has been planned and undertaken in a reasonable timescale13.

6.10 Redundant Street Furniture Redundant street furniture can be defined as an item of infrastructure on the road network that remains in situ, but is strictly no longer needed and/or does not serve its original purpose, e.g. a metal pole immediately adjacent to the roadside that no longer has a sign face on it. Such items are considered a valid concern; as they can be a very real safety (impact) risk to road users. It is also hard to counter any argument that such items cannot be readily and easily removed from the network.

6.11 ‘The Right Stuff’ – Informed Material Choices The properties of a material used at a location should, wherever possible, be consistent with the local environment and conditions. Examples of this could include the choice and use of a specialist porous surfacing material in a particularly high rainfall location, or the use of a high strength and oil/diesel resistant wearing course on a road where the proportion of heavy vehicles is known to be significant.

6.12 The Hazards Associated with Loose Aggregate on Road Surfaces The presence of loose aggregate on a road surface following, say, a spray seal or patching activity, is a major skidding hazard to all road users (and especially motorcyclists and cyclists) and is causative of, and contributes to, a significant number of incidents each year. Experience is that any resulting civil claims are often very closely fought and can be hard to rebut and/or defend. The aftercare of a new surface (e.g. the rolling and sweeping of the surface matrix and the placement of signage, including the advisory speed limit posted, if any) tend to receive intense scrutiny.

Statewide Mutual (2010b) recognises the volume of spray seal operations undertaken by Australian road authorities (and particularly local road authorities/councils) and advocates a four-stage approach based on that body’s experience in the conduct of, and key challenges in, past claims:

Stage 1 (project identification) – this covers how the site is identified for resurfacing and consideration for inclusion within a program of work, and how the works program is part of an overall asset management strategy plan. Stage 1 focuses on the undertaking of network inspections, road condition assessment, site prioritisation, site costings, etc. It is stated that if an identified site is not subsequently included in the program of work then the risks of ‘doing nothing’ at that site must be assessed and controlled.

Stage 2 (planning the project) – within this stage twelve main elements are identified, including the design of the spray seal treatment, and a number of wider works planning issues, e.g. the development of program or site specific Traffic Management Plan.

Stage 3 (day of seal) – this stage covers the spray sealing at the site, including any transfer of responsibility for the site to a contractor. Sixteen main elements are identified within this stage, including the control of traffic following the placement of the seal.

13 It is suggested that consideration of what would constitute a ‘reasonable timescale’ in each jurisdiction should be part of a wider, documented local strategy on the use of warning signage. The local strategy needs to be developed with reference to that jurisdiction’s highways liability case law and involve consultation with local legal representatives.


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Stage 4 (post seal) – this stage covers the testing and checking of the new surface to ensure it is suitable for traffic, including the removal of loose aggregate and the restoration of line markings. The importance of post-seal inspections is stressed and a checklist included as an appendix within the manual.

It is stated that ‘the greatest risk of failure of the treatment and potential liability to the public occurs during and immediately following application’ (i.e. during Stages 3 and 4).

The manual stresses that the staged approach identified immediately above can also be applied to resurfacing operations (e.g. the laying of asphaltic concrete or dense bitumen macadam) and hence is also considered of relevance to road authorities in Australia. Throughout the manual, reference is made to a number of pertinent national and industry guidance documents, e.g. developed by Austroads and the Australian Asphalt Pavement Association (AAPA).

6.13 The Adverse Impact of Works by Utility Companies In the development of this guideline, Mick Savage, Manager of IPWEA’s Roads Directorate, expressed concern regarding the implications of, and ultimate responsibility for, road subsidence and the deterioration of road surfaces resulting from utility company openings and restorations (also sometimes known as reinstatements), i.e. where a road authority can actually be held responsible for a position that is largely outside of its own direct control.

This is largely because even where it exists, utility-related legislation varies in its precise requirements at state and local level across the states of Australia. The main issues seem to concern the notification of works by the utility companies and the specification for restorations (reinstatements) that they adopt, which may not equate to the local road authority’s specification for similar works.

It is recognised that some local developments have occurred, e.g. the publication of NSW Specification 306U (Road Openings and Restorations) by Liverpool City Council and AUS-SPEC, but it has been suggested that progress is very limited in most states and the current position still lacks clarity.

Accordingly, it is suggested that officers discuss and identify any local issues in this regard with their local legal representatives.

6.14 Internal Communication As previously introduced, it is currently the road authority as a single entity that is named in highways-related civil liability actions, not individual sections or individuals within it. This is often taken to imply that communication and exchanges of information and key data (e.g. traffic volumes, crash data, etc.) are routinely and effectively taking place between all teams, sections and departments within the road authority. Therefore, every effort should be made to ensure that internal communications are continually improved and key data is readily available and accessible to all those that need to use it and is in a form and format that is commensurate with their task.


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6.15 Reacting to Local Incident Clusters In the rare event of an incident cluster site emerging over a relatively short timeframe (sometimes referred to as a ‘grey spot’, as opposed to a ‘black spot’ which refers to a locally determined set number of incidents of a certain type and/or severity that have occurred at a site in a set time period), road authorities will most typically have to choose between:

reacting, and thus risking media criticism of a ‘knee-jerk reaction’, or

not reacting, leaving the site to ultimately be identified and considered under a prioritised program of works.

It is suggested that consideration should always be given to reacting, wherever possible, given that reacting does not routinely constitute an admission of liability and that in practice, it is far easier to argue this being the action of a responsible road authority. Importantly, reacting to an emerging issue can help turn a negative position into a positive one, as by not reacting, road authorities are often heavily criticised for lacking interest or being aloof, so attracting further community and media criticism.


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7 MONITORING, REVIEW AND CONTINUOUS IMPROVEMENT

7.1 Learning from Past Incidents and their Outcomes A thorough review of past incidents and their outcomes (including that of any formal legal proceedings) is highly recommended as a means of learning and continuous improvement.

Such reviews can incorporate both technical and legal aspects, e.g. how the road authority performed and whether clarifications or improvements to technical strategies, policies, standards and procedures might be considered, and where applicable, the efficacy of any legal defence mounted. The latter could include: consideration of the working relationship between the local legal representatives and road authority officers; how key technical concepts were presented and understood; the availability of key data and technical information; and how easily and effectively it was to demonstrate that the road authority had fulfilled its duty of care and effected reasonable measures in managing and maintaining the highway. The wide circulation of feedback from such a review is considered essential.

7.2 Risk Registers The keeping of a local risk register can be a very useful tool in ensuring that emerging risks are formally recorded and ultimately considered and mitigated, wherever practicable.

7.3 Monitoring of Case Law It is important that legal representatives monitor and provide information on emerging case law on highways-related civil liability; explaining recent judgements and their likely implication/s14. From such information the likely local position in a similar scenario or claim type can be assessed. Any perceived increase in exposure is likely to require the consideration of an evaluation and/or a review of a particular strategy, policy, standard or procedure.

7.4 Key Performance Indicators Roads Board UK (2009) informs that the Board’s Third Party Claims Task Group has developed four (4) KPIs for highway-related civil liability claims to allow local trends and patterns to be established and for benchmarking between road authorities to take place. The KPIs are:

number of claims received in a single year per 100 km of carriageway inspected

total value of claims paid per 100 km of carriageway inspected

actual number of claims settled with cost per 100 km carriageway inspected

percentage of claims repudiated over the past three years.

KPIs are an important tool in continually improving processes and systems, and hence can ultimately help road authorities in evaluating their delivery performance (first and foremost) and their strategy towards third party civil claims (secondary).

14 The steering group for this Austroads project has been requested to prepare a separate dissemination and training strategy to accompany this guideline. Early indications are that a regular, nationally produced case law bulletin is favoured by many road authorities, possibly under the Austroads banner or produced by an external service provider through a subscription.


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7.5 Monitoring Trends in Complaints and Requests for Service If it is accepted that a claimant is a dissatisfied customer, it follows that monitoring for obvious trends and patterns in formal complaints and requests for service received from road users and stakeholders will give road authorities an extremely useful indicator of possible or likely issues, some of which may have the potential to turn into future civil claims. This process will also help the road authority to identify those local strategies, policies, standards and procedures that will require fine tuning.


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8 SUPPORT SYSTEMS AND RELATIONSHIPS

8.1 Record Keeping The importance of effective record keeping systems cannot be underestimated across the entire asset management operation, i.e. from the development of policy through to the delivery of works on the ground.

Records help road authorities to demonstrate:

their local strategies, policies, standards and procedures in managing and maintaining the road asset and the rationale behind their development, including how the content of, and principles within, international and national best practice and guidance documents have been considered

the extent to which the road authority has implemented (or departed from) its documented strategies, policies, standards and procedures, and hence, how it has satisfied its duty of care

the role of consultants, contractors, etc. in the design, management or maintenance of a road asset

what was done at a particular location and time of interest/investigation, including the basis for local decisions, actions and non-actions.

The local record keeping system must be robust enough, and consistently able, to support the defence of a small or large value claim.

In a claims scenario, obvious gaps in records and data increase uncertainty, often leaving cases to be largely judged on personal recollection (which can be adversely affected by hearsay and hindsight) and what information remains available in each instance. Experience is that there is a real expectation that road authorities (as a public body) will have effective record keeping systems and will be able to retrieve any information required. Not being able to retrieve a record can put the road authority on the defensive and can perhaps risk the authority being seen as evasive or elusive. Similarly, the road authority and its legal representatives not knowing of the existence of a document that subsequently comes to light during legal proceedings (e.g. as a result of a Freedom of Information request) can also be damning.

The scope and volume of information and data available to a road authority officer or team at the time of reaching a decision, or undertaking an action, are of vital importance. This is a concept referred to within legal texts as ‘actual knowledge’ or ‘prior knowledge’. What information/data was used (and importantly, not used) is often scrutinised. However, road authorities cannot be judged upon what information they did not have or was not available at the time of the decision. In this way, good record keeping can prevent over interpretation and hindsight coming into consideration. This in turn highlights the vital importance of items such as internal e-mails between officers and entries made in works diaries, and the associated archiving and ownership of such items. Accordingly, it is stressed that when an officer is provided with a diary it must be explained that the ownership of that item ultimately remains with the road authority and the diary will be collected at the end of that year or an assurance sought that the diary will be made available as needed in the conduct of any future legal proceedings.

The Roads Board UK (2009) very succinctly states, ‘It should be obvious to anyone that the inability to produce inspection records will seriously weaken a highway authority’s case’.


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Works related (service delivery) documents (e.g. timesheets, worksheets, work diaries, etc.) are also of high importance, particularly in proving whether programs of works were undertaken and decisions reached were actually acted upon.

The minimum time for records to be kept by a road authority must be determined locally in association with the authority’s legal representatives, but is most typically suggested as six or seven years.

In response to the collapse of a culvert at Somersby on Old Pacific Highway in New South Wales in June 2007, the Coroner recommended that the NSW Minister of Local Government commission a review of the asset management and record management system of the pertinent local road authority. The resultant review report (Persson & Griffin 2008) was published in December 2008 and while the facts of the case are not of specific interest here, the findings and commentary include the following invaluable guidance regarding the efficacy of record keeping systems and the features found in good record keeping systems:

Non-compliances with record keeping systems are certainly ‘not unusual’ within large councils and are typically due to the human factor, although other important factors can be:

— interpretation of what constitutes a record to be kept

— time management issues leading to records not being stored or archived

— difficulties in operating the record keeping system, particularly for regional and field based staff

— resistance from some professionals to what might be considered ‘low level’ administration tasks

— ongoing problems despite adequate training, guidelines and assistance notes being provided to staff, leading to unfamiliarity and uncertainty of the system

— the storage of a large range of documents outside of the corporate record management system, i.e. on local drives, personal record systems.

The most appropriate record keeping systems are:

— fit for purpose

— simple to use by staff with all levels of competency and computer literacy

— easily usable by head office and regional/field based staff

— evolve as needs change

— consistent with documented standards/protocols on digital record keeping

— automated, wherever possible, e.g. documents are auto-registered onto the corporate system rather than the onus being on individuals to comply

— able to include provision to catch up on any backlog of records not on the system

— able to provide useful management reports, e.g. compliance, timeliness with system requirements

— audited/checked regularly for quality, exclusions, the existence of personal mailboxes/drives, etc.

— able to identify repeat errors/non-compliance by individuals so that further training, mentoring, help or support can be provided

— supported by a help desk and training team.


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The future proofing of data may also be important in some cases to enable access in the future, e.g. data held in an old, largely unsupported format is likely to need to be transferred to a current, supported format.

Security protection and back-up systems are also important in ensuring the on-going integrity and availability of key records.

Statewide Mutual (2010b) similarly stresses the need for the creation and storage of comprehensive records, but in such a format that they are ‘readily accessible’. The manual highlights the value of taking a large number of contemporaneous photographs of road works sites, throughout the work timeline/process. Reference is also made to a further Statewide Mutual Best Practice Manual entitled Gathering Information for Incident Management.

8.2 Time is of the Essence When a road authority becomes aware of an incident on the highway that, based on its past experience, is likely to result in a highways-related civil liability claim, there are many advantages in immediately starting to gather and collate pertinent data and documentation, i.e. in advance of formal notification of the claim.

This advance process can be further aided by technical officers working with their legal representatives to identify a standard list of data or documents typically required in the most common incident scenarios experienced locally which can then be used as a checklist.

In some states, legal professional privilege can apply on certain material where a road authority commences an investigation for the dominant purpose of possible future litigation, ahead of a claim being received and commenced. However, it is essential that practitioners speak to their local legal representatives to determine the position in this regard in their own state or territory and specifically, what sort of documentation can be privileged and how it is to be marked/identified.

8.3 The Need for Effective Control of Technical Documents Effective control of national and local technical strategy, policy, standards and procedural documents is required and includes having formal mechanisms in place to ensure that:

officers receive timely notification of the presence/arrival of new and revised external documents and have ready access to the current version of these documents in a user friendly format

superseded versions of technical documents are withdrawn from general circulation (and ideally, marked and archived).

Only a small number of road authorities are fortunate enough to have a formal technical library and therefore, document control is often assigned to administrative staff or junior officers. It is important that the member of staff filling this role understands the significance of the above tasks.


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8.4 The Working Relationship with Local Legal Representatives The importance of fostering an effective working relationship with local legal representatives (either in-house or contracted) has been previously identified in a number of areas.

It is strongly recommended that road authority officers are encouraged to proactively support and action requests for documents, information and data from the authority’s legal representatives. Rules of evidence and the tactics used by legal representatives are often complicated – what is admissible and what is not admissible and what documents the road authority’s legal team ultimately serve and do not serve, can be difficult to understand and appreciate. Trust is essential and ‘going the extra mile’ to help and support the legal representative/s will undoubtedly help to build up rapport in this important relationship.

Additionally, urgent requests and communications often come from the legal representatives due to the strict rules of procedure that exist in civil litigation and should be attended to as a priority. It is similarly important to be aware that proceedings tend to fluctuate in intensity and officers should not be alarmed if progress then slows considerably. The important point is that communication and liaison should continue, and if a road authority officer feels that they have not received a recent update, they are advised to seek one from their legal representative.

Road authority technical officers should also recognise the value and importance to their understanding of highways-related civil liability matters of seeking and obtaining feedback and explanation from legal representatives on the strategy used in each particular scenario, and the ultimate outcome.

It is critical that local legal representatives have understood the technical concepts, trade-offs and nuances in a case and road authority officers need to assess this on a case-by-case basis, through questioning, and must be prepared to provide further information and explanatory text wherever it is needed.

In short, where a road authority and its legal representatives decide to defend a claim, the defence needs a consolidated and co-ordinated approach, with legal and technical considerations being addressed.

Defending a highways-related civil liability claim, ultimately from its lodgement to a judge’s decision in a courtroom, can be an emotive, demanding and stressful task for all concerned. Therefore, it is important that road authority officers are supported both during and after the proceedings (which might possibly extend as far as providing follow-up counselling).

8.5 The Working Relationship with Police Incident Investigators In general terms, Police investigators are tending to take a greater interest in the highway aspects of major incidents, and the knowledge of senior/experienced investigators in highway-related issues is growing. The conclusions within Police incident investigation and reconstruction reports can be highly significant in the determination of a civil case and therefore, fostering a close, open and co-operative relationship with the local Police crash investigation unit is likely to promote mutual understanding and pay dividends in the long-term15.

15 Examples include recent relationship building between TMR Queensland and Queensland Police Forensic Crash Unit, and Memoranda of Understanding (MoUs) formed between Wollondilly Shire and Camden Shire Councils (both in NSW) and their local Police highway patrol units.


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8.6 The Working Relationship with Contractors It is suggested that contractors to road authorities should be actively encouraged to become an extra set of ‘eyes and ears’ on the network to supplement other sources of prior knowledge. Indeed, this has been recognised by a number of road authorities who have built into their term maintenance contracts a requirement for the contractor to detect and notify the road authority of existing defects and in some cases, emerging risks.

It is also vital that specialist contractors are appointed for specialist and/or safety critical tasks, e.g. installing or maintaining/repairing safety fencing.


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9 ASSET MANAGEMENT AND THE SAFE SYSTEM FRAMEWORK

9.1 Introduction Austroads (2009b) states that Safe System principles are the basis for road safety programs in Australia and that:

The Safe System seeks to ensure that no road user is subject to forces in a collision which will result in death or an injury from which they cannot recover. It recognises that road user error cannot be completely eliminated (although it can be reduced), so the road transport system must therefore be designed to make collisions survivable. This is achieved through a combination of design and maintenance of roads and roadsides, design of vehicles and their safety equipment, speed management, and having alert and compliant road users.

It is also stated that in New Zealand, practical steps have been taken to give effect to similar guiding principles through a Safety Management Systems (SMS) approach.

9.2 The Safe System and Asset Management It can be seen from the extract above that asset management practitioners have a significant role to play in delivering positive road safety outcomes through the Safe System approach.

Accordingly, Austroads project AT1692 Asset Management within a Safe Road System Framework was established to consider a number of underlying aspects in the introduction of the Safe System approach as it affects the asset management function. An Austroads guidance document will be that project’s primary output, prepared specifically to assist asset management practitioners in how to implement and apply Safe System thinking in a range of real-life scenarios. The document is expected to be released during 2012 and is likely to become a key reference resource.

One of the seven aspects identified and considered under project AT1692 was the likely/possible legal implications of not appropriately implementing the Safe System. A short briefing/discussion note was prepared, with the main issues raised within that note summarised below. It should be recognised that the note was prepared without the benefit of emerging case law where the Safe System approach has been examined and tested in an asset management related case. Such case law may well be a few years off and therefore, the underlying message remains – specialist legal advice should always be sought on a case by case basis.

It is also important to note that whether a road authority has successfully and efficiently applied the Safe System approach is just one of a number of different aspects in the consideration of a highways-related civil liability claim (further detail is provided in the following section).

9.3 Discussion and Possible Legal Implications It has been shown internationally that effectively implementing the Safe System framework will save lives and provide excellent returns and community benefits. It is a positive development and a further way for a road authority to show that it is fulfilling its duty of care in a proactive, forward looking, systematic way that prevents incidents (and ultimately claims) from occurring. Reducing claim numbers can help road authorities to secure lower insurance premiums. Additionally, the Safe System approach is fundamentally about reducing vehicle speeds and hence the kinetic energy in crashes, which will typically reduce incident severity and ultimately in pure financial terms may lead to the value of any successful third party civil claim being reduced.


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As with any relatively new concept, the challenge is ensuring that the Safe System approach is fully understood across the disciplines of a road authority and consistently implemented as locally documented.

It has been identified earlier in this guideline that road authorities will benefit from a positive, multi-disciplinary approach to asset management, where active and effective communication between individuals, teams and sections is occurring. The Safe System approach requires and encourages a similar culture.

Road authorities have had past success in educating the legal profession in new concepts, and the Safe System has the advantage of having a compelling rationale and laudable objective/s behind it. Further support can be secured from examples and case studies of where the Safe System approach is working in other countries. The Safe System requires monitoring, evaluation and ongoing improvement (i.e. learning from both positive and negative occurrences) – all desirable components of asset management.

The Safe System approach lends itself to objective, data-led, repeatable decisions, such are as required in the asset management function and if implemented well and energetically, the approach should help to link previously disparate policies and practices.

The local implications of adopting the Safe System approach will depend upon that road authority’s diligence and how expediently it has been progressed (i.e. not at all, only in part, or in an ill-considered or piecemeal manner). There is a real risk of getting left behind more enlightened authorities, and therefore, although it is a relatively new concept, the emergence of the Safe System approach should not be seen as an easy option or used as a delaying tactic with little being progressed. A long-term, proactive approach is required.

Successful implementation of the Safe System approach requires active and consistent interaction and communication with all key stakeholders. This perhaps renders the approach less forgiving than previous road safety models.

In summary, the Safe System approach is about saving lives on road networks through reducing the incidence and severity of crashes. Considerable savings and community and health related returns can be secured. Success can attract further funding, across asset management, traffic management and road safety disciplines. For this reason, it is vital that a fear of litigation should never prevent a road authority from implementing the Safe System or enacting reasonable, managed innovation in the quest for improved performance and better outcomes for all road users.

At this current time, the understanding and practical implementation of the Safe System approach is still growing and therefore, it is reasonable to assume that defence strategies against future highway-related civil claims should not alter drastically in the near future, whether the Safe System is brought into consideration during the proceedings or not. However, road authorities are well advised to familiarise themselves with, and implement where locally applicable, the detailed guidance for asset management practitioners expected to be issued under Austroads project AT1692 during the second half of 2012.


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10 CONCLUSIONS The objective of this document has been to improve the awareness of asset management officers of legal issues and to provide practical guidance. The intention was not to create a legal textbook or repository of case law, nor does the document set out to provide legal opinion – this is the domain of a road authority’s legal representatives (either in-house or as a contracted service).

While this guideline recognises the entire asset management function, its focus is inevitably on more traditional road condition and road maintenance issues, as these are known to be by far the most represented among highway-related civil claims.

A good working relationship between a road authority’s technical officers and legal representatives is essential. This can extend to advice on legal related risk management matters when developing a strategy or policy, but is more typically required and fostered upon receipt of formal notification of a claim, and then subsequently during any proceedings should the claim progress. A two-way process is advocated, which includes the need for legal representatives to understand technical concepts and be encouraged to provide feedback on the outcomes of any local proceedings and landmark judgements as part of a learning and continual improvement regime.

The document has been written to assist all Australian road authorities (i.e. state and local road authorities) and specifically, their asset management officers. However, practitioners in New Zealand and/or those working in kindred fields (e.g. road safety and traffic management) should still be able to gain useful context and guidance from this document.

The underlying principle adopted throughout the document is that preventing incidents occurring through sound asset management practices is by far a better strategy than choosing to rebut or defend all claims received regardless of the scenario and technical issues involved.

Being able to robustly demonstrate that reasonable and effective measures have been consistently implemented in managing and maintaining the road network will go a long way towards the road authority being able to demonstrate that it has fulfilled its duty of care to road users. Effective record keeping becomes one of the key challenges.


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REFERENCES ARRB Group 2012, ‘Highways liability’, knowledge transfer workshop material, ARRB Group, Vermont

South, Vic.

Asphalt Industry Alliance 2011, Annual Local Authority Road Maintenance (ALARM), survey report 2011, London, UK.

Austroads 2009a, Guide to Asset Management: Part 1: Introduction to Asset Management, 2nd edn, Austroads, Sydney, NSW AGAM01/10.

Austroads 2009b, Guide to Road Safety: Part 1: Road Safety Overview, 2nd edn, Austroads, Sydney, NSW AGRS01-09

Ipp, DA 2007, The metamorphosis of slip and fall, Supreme Court , NSW, viewed 19 July 2012, <http://www.lawlink.nsw.gov.au/lawlink/supreme_court/ll_sc.nsf/pages/SCO_ipp300307>.

Jardine Lloyd Thompson 2010, ‘Liability claims resolution’, NSW Statewide Mutual Conference Sydney, 26 August 2010, presentation.

Johns, D 2007, Kerbing compensation claims, Association of Public Service Excellence, Manchester, United Kingdom.

Persson, D & Griffin, A 2008, Review of Gosford City Council’s asset management and record management systems, Division of Local Government, Department of Premier and Cabinet, Sydney, NSW.

Roads Board UK 2005, Well maintained highways: code of practice for highway maintenance management, 2005 edition: 27 April 2012 update, The Stationery Office, London, United Kingdom.

Roads Board UK 2009, Highway risk and liability claims: a practical guide to Appendix C of the Roads Board UK report “Well maintained highways: code of practice for highway maintenance management”, 2nd edn, UK Roads Liaison Group, London, United Kingdom.

Roads Board UK 2011, Highway risk and liability claims: a practical guide to Appendix C of The Roads Board UK report “Well maintained highways: code of practice for highway maintenance management”, 2nd edn, section 4.3: training update, UK Roads Liaison Group, London, United Kingdom.

Statewide Mutual 2010a, Best practice manual: roads, version 4, September 2010, Sydney, NSW.

Statewide Mutual 2010b, Best practice manual: bitumen and asphalt resurfacing, version 3, September 2010, Sydney, NSW.

UK Roads Liaison Group 2011, Design and maintenance guidance for local authority roads: departures from standards: procedures for local highway authorities, UK Roads Liaison Group, London, UK.


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APPENDIX A A BRIEF INTRODUCTION TO HIGHWAYS-RELATED CIVIL CLAIMS

The following text provides an introduction for asset management practitioners to the context and significance of highway-related civil claims. A summary is provided as Section 2.

A Glossary of Terms is also provided in Appendix C.

A.1 Why do Claims Occur? Road authorities have a broad duty of care to road users on their networks and in the main take this duty extremely seriously, constantly seeking to secure positive road safety outcomes aimed at reducing the number of people injured on their roads.

However, when an incident does occur there is almost inevitably what is called in legal terms a loss to one or more of the individuals or parties involved. The loss can include personal injury, vehicular damage, infrastructure damage, and damage to private property. In terms of the road authority itself, a possible loss could be in more subtle terms, e.g. loss of reputation or community goodwill.

In many cases road users will look to seek some form of compensation for their loss under the common law and more specifically, following the schedules and clauses of the pertinent jurisdiction’s civil liability legislation.

ARRB Group (2012) advises that while a range of international crash studies indicate that the road environment is the sole contributory factor in only a very small number of incidents (typically quoted as between 2% to 3% of incidents, depending upon the study selected), the interaction between the road user and road environment has been found to be far more significant (typically quoted as being a contributory factor between 20% and 33% of incidents, depending upon the study selected16). This means that in any incident, the road environment and the road authority responsible for it are often under review and their strategies, policies, standards, procedures, decisions and actions placed under scrutiny.

Australian road users are not prevented (i.e. blocked by legislation) from bringing a civil claim against a road authority, with the foundation for claims typically being an allegation that defective or poorly maintained road infrastructure has caused or contributed to the incident occurring and/or contributed to its severity. The role, decisions and actions of the road user are also considered.

As previously touched upon, subtle variations in civil liability legislation do exist on a jurisdiction-by-jurisdiction basis, which limit the scope, extent and conduct of all civil claims, and in some cases, introduces specific rules in claims against public bodies, which include road authorities.

Notwithstanding, increased public awareness of legal issues in recent years has prompted more road users involved in incidents to seek compensation.

In summary, road authorities are at risk of highways-related civil claims. Those claims that proceed are typically very closely fought and if successful, the amount of compensation ultimately awarded to an injured person or party can be highly significant. 16 It should be noted that this does not imply or assume that civil proceedings resulted or that the road authority was held liable in all or any of these incidents.


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There is also some unpredictability as to where liability will ultimately be attributed in each and every claim brought. This is mainly due to the unique, multifactor nature of each incident on the highway and the nuances in the specific role, decisions and actions of each person or party involved in its occurrence and/or severity.

A.2 The Common Law, the Civil Law and the Assessment of Claims The vast majority of road-related compensation claims in Australia are brought under the common law principles of negligence17.

The conduct of such claims is then determined by the civil liability legislation that prevails in each jurisdiction.

In bringing a claim, the road user alleging a loss is seeking a settlement in monetary terms to compensate them for that loss. This can be with regard to their personal injury and/or damage to their property, e.g. to allow what may be extensive, long-term medical treatment to be secured; to compensate a person for loss of earnings for any periods of time during which they cannot work or any on-going inability to sustain a career path or profession that was previous open to them; or to pay for physical repairs to a building owned by the claimant that has been struck and damaged by a vehicle.

However, it is important to note that the claimant can only be restored, as far as money allows, to the position they were in prior to the incident, i.e. no betterment is allowed.

The road authority is often named as one of a number of defendants to a claim, which may include another driver or road user, another road authority (local council), contractors, subcontractors, consultants, and sub consultants.

Road authorities and local councils are often perceived by the public as an ‘easy target’, given an assumption that all such bodies:

have a large budget, especially when compared to the claimant’s personal wealth

have a large workforce, having the number and range of staff needed

are all seeing and knowing – i.e. having a knowledge of everything about their network (e.g. its history, its condition and present occurrences and issues on that network) through being the long-term custodian of their networks

have an ingrained public service culture, which historically includes a strong ethic of extensive record keeping.

ARRB Group (2012) suggests that this can create an unrealistic expectation of what a road authority can reasonably achieve and contribute to the fact that highways-related civil claims are often closely fought.

17 Although rare, claims are sometimes brought under nuisance. In Victoria, the Road Management Act 2004 (as amended 1 January 2010) sets out the statutory duties of road authorities, and therefore, the majority of highways related claims in that state allege a breach of statutory duty.


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In civil cases the onus of proof rests with the claimant, i.e. to be successful in their claim the claimant must be able to prove a number of defined elements of, and allegations contained within, the claim. One of these elements is sometimes known simply as ‘causation’ (or more formally, nexus) – the claimant must be able to demonstrate that there is a direct causal link between the alleged defective infrastructure and the causation and/or severity of their incident.

The burden of proof in civil cases is ‘on the balance of probabilities’, as distinct from criminal cases where the more onerous burden of ‘beyond reasonable doubt’ applies.

A three-stage test has also evolved in determining negligence cases. To be successful against a road authority, the claimant must prove:

he/she was owed a duty of care by the road authority

the road authority breached that duty of care

the breach led to some form of loss (e.g. personal injury, property damage).

The first of the three stages tends to be the easiest to prove (and often only involves the claimant proving that the incident occurred on a road within that road authority’s network). The remaining two stages of the test are more complex and are often closely debated.

Potential claims against a road authority can be received in a number of formats, such as telephone, letter and e-mail. In the first instance, a road authority will have to assess the content and determine whether a claim is actually being made, or if the correspondent is in fact merely notifying the authority of an incident, providing information, or submitting a request for service, or making a more procedural type complaint.

In the first instance, a potential claimant is often requested to complete an official incident proforma and/or to supplement their initial approach to the road authority (e.g. by e-mail, post or telephone) with a formal letter advising of the intention to commence legal proceedings.

At this stage, the road authority’s legal representatives need to be consulted and a joint process begins in assessing the incident from both legal and technical perspectives to determine whether the claim against the road authority has any basis and/or prospect of success.

Although procedures are likely to vary for each jurisdiction, in general terms where it is believed that a claim has little or no basis, it is typically rebutted immediately in writing. Where it is believed that a claim may have some basis, an internal decision is typically required as to whether to settle or defend the claim.

In the majority of cases the decision to defend a claim will be based on an assessment of the circumstances and available physical evidence of the incident, and the likely ability of the road authority to be able to effectively demonstrate that it had taken reasonable measures in managing and maintaining the section of road where the incident occurred. This typically requires the collation of strategy, policy, standards and procedural documentation (i.e. what the road authority said it would do in defined situations) and works/delivery documentation (i.e. what the road authority actually did in this particular situation).

The overall performance of the road authority is ultimately considered against the locally set strategies, policies, standards and procedures, and national and international guidance, i.e. in basic terms, what the road authority’s peers (learned societies, neighbouring and similar road authorities) have in place and would have reasonably done in the same, or a similar, situation.


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At this stage, and particularly within local road authorities (councils), consideration may also be given to the precise nature of a road authority’s civil liability insurance arrangements. The level of excess or self-insurance that a road authority carries, along with the uncertainty, costs and time associated with civil litigation can result in a commercial approach being adopted. With such an approach, it may be agreed in association with the road authority’s insurer or treasury fund officers to settle certain types and/or values of claim, regardless of the perceived strength of the road authority’s position. A commercial approach might also be considered on a case-by-case basis, with a third party liability insurer working with the road authority, but largely managing and determining the course of action.

The author’s experience is that the commercial approach to claims can be a hard concept for a road authority practitioner to understand and accept and therefore, needs to be explained in detail so as to prevent, for example, any misunderstanding or perceived criticism that some sort of error has occurred, or deficiency in policy or service exists, that has left little option than for the claim to be settled.

Tactical reasons may also exist in deciding to settle a claim early, e.g. to avoid a ‘domino effect’ on similar claims, or to avoid setting a precedent that would adversely affect kindred road authorities. This is because where the parties to a claim do agree to an early settlement, it is most typically done with ‘appropriate release and discharge’, i.e. the claimant cannot seek or bring any additional (future) proceedings following the settlement.

If a claim has basis and appears to be proceeding, the extent of the liability of each person or party named in the civil action (i.e. regardless of whether they sit on the Claimant or Defendant side of the case) is ultimately discussed. The contributory negligence of the claimant, i.e. what the claimant may have done to cause or exacerbate their situation, will also be considered at this stage, with this often being formally determined according to state civil liability legislation. It is typical for the extent of a party’s liability to be expressed as a percentage, out of a cumulative liability of 100% for the incident. This means that a road authority is rarely held 100% liable, even in a successful claim, but the typical financial value of a claim reaching this stage means that the actual percentages allocated are often very closely fought.

It is important to note that civil claims will often settle before reaching a courtroom (ARRB Group 2012 includes an estimate that only 1 in 11 civil cases actually runs full course, i.e. to the decision of a judge).

If a civil claim does reach the courtroom, all of the involved parties get an opportunity to put forward their evidence and to cross-examine the other parties in front of a judge. Civil cases are most typically heard by a judge only and rarely involve a jury. The judge is impartial and reaches a decision based on the facts of the case and the judgements in any precedent cases.

The reality is that road authorities need to be prepared for there to be gaps in the information, data and documents available, and additionally, any uncertainty in available evidence has to be resolved. Similarly, the road authority must consider how best to effectively present specialist and complex technical concepts to the courtroom, e.g. the programming of traffic signals or the interpretation of skid resistance data.


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Local civil liability legislation will determine whether the unsuccessful party is permitted to seek to appeal the original judgement in a civil case. Appeals are only permitted on specific points of law, rather than any generic disappointment/dissatisfaction at the decision. They are typically heard by a Supreme Court, or by a dedicated Court of Appeal, depending upon the jurisdiction. The ultimate destination in the appeal process is the High Court, where a special leave to appeal must be sought. For the High Court to allow an appeal the cases are typically those considered to be of national interest and their outcome will often prompt changes in legislation.

Figure A 1 below is a detailed flow chart of the civil claim process for a highways-related civil claim.


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Figure A 1: Detailed flow chart of the civil claim process for a highways-related civil claim


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It should not be forgotten that incidents on the highway network can also trigger coronial and police investigations, which also often include some consideration of the local road authority’s level of service, and the condition and physical characteristics of the infrastructure. Such investigations typically commence ahead of any civil case relating to the incident and in many cases can also prompt future civil proceedings.

Finally, in some jurisdictions a road user facing criminal proceedings for their role in an incident is not prevented (blocked by legislation) from bringing a parallel civil claim against the pertinent road authority.

A.3 Why are Highway Claims so Significant? A.3.1 A Dissatisfied Customer Road authorities have been established to manage and maintain a defined network of public roads, and hence to fulfil the role of a trusted service provider to a large number of road users and stakeholders who have a heavy dependence on that road network.

While road user expectations are often be found to be extremely high, it can be argued that a person/s bringing a civil claim against a road authority is a dissatisfied customer, i.e. as a result of their loss (typically injuries), they have been moved enough to seek compensation from the road authority. Accordingly, road authorities are advised to recognise the importance of the claims received, investigate them, and wherever possible, to identify and effect on-going improvement to local strategies, policies, standards and procedures.

A.3.2 A Drain on Resources ARRB Group (2012) categorises highway-related civil claims into:

Attrition-based claims: which are typically of low monetary value individually, but are generally received in high volume. Examples can include (depending upon the jurisdiction) claims for the removal of bituminous binder from a vehicle’s paintwork, which has resulted from spray seal operations; tyre and wheel damage from potholes; and minor sprains from slips, trips and falls on footpaths and footways.

Catastrophic-based claims: which tend to result from complex one-off events where serious injuries result and are hence significant in that they typically have the potential to be of very high monetary value18.

Both claim types can be financially significant to a road authority, with the level of significance largely dependent upon either the road authority’s treasury managed fund (where one exists) or its insurance arrangements. The latter relates to what level of civil liability insurance excess or self-insurance is carried by the authority, and how its annual insurance premium is influenced by local claim numbers and the total value of compensation paid out.

Considerable resources are often involved in handling and investigating (and in some cases defending) claims. It can be argued that these resources would be better utilised in managing and maintaining the road asset in the first instance, so supporting a ‘prevention is better than cure’ strategy.

18 Where a fatal incident has occurred or the injuries sustained by a person are so severe, civil claims are brought on behalf of the deceased/injured person by their dependants.


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Statistics relating to highway-related civil claims in Australia can be difficult to secure, often being difficult to readily identify within an organisation’s highly detailed Treasury/Annual Report. The author is not aware of any annual national collation of claims figures for Australia.

The presentation Liability Claims Resolution made by an unknown representative of Jardine Lloyd Thompson19 (Jardine Lloyd Thompson 2010) to the New South Wales (NSW) Statewide Mutual Conference 2010, contained the following key statistics for that state:

In 1999/2000, the total cost of claims handled by Statewide Mutual was $7.61 million, of which 43% ($3.27 million) related to footways.

The majority of claims ‘resolve’ (i.e. they settle) – 3666 claims were finalised between 2007 and 2010, with 2373 of these ultimately settled at no cost to the Mutual.

Statewide Mutual seeks to reduce claims costs as this will in turn reduce the overall insurance spend for its authorities.

Only a very small percentage of the total number of claims (1.8%) represents 60% of the total insurance spend.

Less than 10% of the total number of claims represents 89% of the total insurance spend.

Civil litigation in Australia is funded almost entirely by insurance companies, government agencies and large self-insured corporations.

Thirty-five per cent of Statewide Mutual’s total costs are on defending claims on behalf of their road authorities.

Claims that take a long time to resolve are the worst case for Statewide Mutual because handling and legal costs are typically much increased and the insurer has to keep a reserve/contingency to ultimate cover these claims, which in turn leads to pressure from the Mutual’s underwriters.

Even a positive outcome for a road authority in a claim can be bad for that member’s claims history and can hence affect (increase) their annual civil liability insurance premium.

Although Statewide Mutual has a policy of working with its road authorities in actively defending unmeritorious claims, it nonetheless considers all available forms of resolution to avoid the ultimate destination of the courtroom.

During a meeting with Mr Ron Barnes of Echelon (insurance advisor to Statewide Mutual) on 10 October 2011, it was explained that the majority of the claims the Mutual receives from metropolitan areas relate to kerb and gutter provision, the condition of footpaths, and the roots of urban trees that disturb footpath surfaces. The Mutual’s rural claims tend to be typically low in frequency, but of a greater individual value than urban claims. It was explained, however, that the Mutual’s philosophy in the investigation and/or defence of claims remains the same regardless of whether the incident location is urban or rural.

19 Jardine Lloyd Thompson is the lead insurer behind the Statewide Mutual scheme in New South Wales, which is reinsured through local and London markets. The scheme began in 1993 as a local government mutual and as at the end of 2009, had 151 local councils as members of the scheme, an overwhelming majority of the total number of local government authorities in NSW. Local government authorities are supported and encouraged to adopt a risk management approach to reduce the incidence of claims, thereby making its members’ communities a safer place to live and visit. The organisation produces a range of Best Practice Manuals and Guidance Notes to assist councils in formulating local strategies, policies, practices, etc. A selection of these is referenced in Section 4.


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ARRB Group (2012) includes data obtained from the Queensland Government Insurance Fund (QGIF) for the 10 year period 1998-2008 which shows that road surface condition issues led to approximately 18% of the total claims received by the Department of Transport and Main Roads in that time period. Total numbers of claims relating to potholes (approximately 5%) and loose gravel on roads (approximately 3%) are also considered of interest to this asset management related guideline.

This data tends to support the theory that road surface condition and highway maintenance activities can have a significant impact on network road safety outcomes, although the precise allegation/s made in each claim was not consistently provided, nor whether each claim was ultimately successful (and if so, its value).

The statistics below from UK have been provided to give readers with an awareness of the extent of highways-related civil liability claims in that country.

Johns (2007) reports that Zurich Municipal, a major road authority insurer in the UK, had estimated that compensation pay-outs by UK road authorities had then reached £250 million (approximately A$400 million) per annum, but significantly this figure does not include costs such as staff time in handling and dealing with claims and loss of reputation.

The UK’s Annual Local Authority Road Maintenance (ALARM) Survey report for 2011 (Asphalt Industry Alliance 2011) quoted that for England and Wales in 2010:

road user compensation pay-outs totalled £19.3 million (approximately A$32.1 million)

a total of 46 300 officer days were spent addressing highway compensation claims

the total costs of the road user compensation claims (i.e. cumulative awards + cost of officer time) was approximately £35 million (approximately A$58.3 million)

the average number of claims received per English road authority (excluding those in London) was 446, with each claim having an average value of just under £200 (approximately A$330)

the majority of claims received were for damaged tyres and wheels.

The survey concludes that while the precise relationship between the total number and value of road surface condition-related claims received by a road authority in any one year and that authority’s total expenditure on road maintenance is unclear, a relationship between these factors inevitably exists, i.e. it is intuitive to expect that the number of claims received by a road authority will rise if the total spend on asset management/road maintenance is reduced.

The Roads Board UK (2009) document Highway Risk and Liability Claims: A Practical Guide to Appendix C of the Roads Board UK Report ‘Well Maintained Highways: Code of Practice for Highway Maintenance Management’ identifies the main (most frequent) causes of highway-related claims in the UK as:

footway trips/rocking slabs in footways – where the extent of the road authority’s liability is often determined by the quality of its visual inspection regime frequency and the setting of inappropriate intervention levels for the level of usage of the footway; or more fundamentally, inaction (failing to react to knowledge of a serious defect)

potholes – with the extent of the road authority’s liability also determined as per ‘footway trips’ above.


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Less frequent causes of claims are identified as:

missing/worn road markings

poor surface condition

aquaplaning (specifically involving drainage and skid resistance issues)

debris, plant, or materials on the road

unsigned or inappropriately signed curves

worn or missing warning signage of obvious dangers

restricted visibility at intersections due to roadside vegetation

design defects.

A.3.3 A Significant Test of Asset Management Systems and Communications The author is aware that a number of legal commentaries (including ARRB Group (2012)) have suggested that the concept of highways-related civil liability and its associated process and outcomes are intended to be a deterrent to road authorities against future inaction. This also further reinforces the need to learn from past incidents – preventing similar incidents from occurring and in acting as a catalyst for continual improvement of asset management related strategies, policies, standards and procedures.

The author believes that legal proceeding are a significant test of the systems of road authorities, with individual elements often coming under intense scrutiny, for example, in settlement discussions or in a courtroom.

ARRB Group (2012) reports that past analyses of highways-related claims indicate that only approximately 5% of the total number of claims concern new build infrastructure (i.e. that allege design deficiencies or construction defects in new provision). The remaining 95% of claims relate to the management and maintenance of the existing road asset, with the exact condition of the road surface at the time of the incident in question almost always a major point of discussion.

ARRB Group (2012) explains that asset management related claims can be further subdivided into:

claims against policy – whether the road authority’s documented strategies, policies, standards and procedures are effective and commensurate with pertinent national guidance and what kindred road authorities would have in place

claims against practice – whether what is being implemented by the road authority in practice is consistent with documented policy (i.e. whether the road authority is actually doing what it has stated it was going to do).

Highways-related civil liability claims are currently brought against a road authority as one entity (i.e. at an organisational level and not against an individual or defined team or section within the road authority20). This infers that kindred strategies and policies within the organisation need to dovetail effectively and that there is effective communication throughout, with key information and data (e.g. traffic volumes, crash data etc.) being exchanged between teams and sections that need it. These aspects are discussed further in Section 4.

20 This situation may change with impending amendments to Commonwealth Occupational Health and Safety legislation – road authorities are advised to seek professional legal advice.


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The allegations set out in a Claimant’s Statement (or Particulars) of Claim will almost always cover a number of issues or technical areas21. For example, a claim might allege negligence in an aspect of the provision at the incident location (e.g. of a warning sign or line marking system) and a maintenance issue (e.g. poor maintenance of a drainage system that led to ponding of water on the road, which in turn caused the claimant’s loss of control incident). The issues in this example tend to be presented precisely in their wording and intent, but they are typically supplemented by more generic allegations; e.g. in its provision of a line marking system at an intersection, the road authority has led the road user into a ‘trap’ (a danger) when the road user has followed or interpreted that system, or that the authority has failed in its generic duty of care to provide a safe road environment for the claimant. Therefore, it can be seen that the road authority must consider the overall context of a claim within the management and maintenance of its road network, as well as any defence to allegations involving specific technical detail relating to practical delivery.

21 Although the claimant must be able to prove that each one of the issues raised has a sound basis.


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APPENDIX B A BRIEF HISTORY OF ROAD AUTHORITY CIVIL CLAIMS

This section is intended to provide a brief, working overview of the historical and current situation with claims against road authorities. A summary is provided in Section 3.

The information provided should be taken as generic in its applicability to Australia. It does not attempt to detail the nuances in, or differences between, the current legislation/legal position in each of the states and territories of Australia. Therefore, practitioners should familiarise themselves with the key elements of the current legal position in their own state and seek professional legal advice on any matters of detail or uncertainty.

B.1 Position Prior to 31 May 2001 Prior to 31 May 2001, Australian road authorities received significant protection from road-related claims through the existence of what was known as the ‘highway rule’.

Under the ‘highway rule’ road authorities could only be held liable under misfeasance (in simplest terms, effecting a maintenance action at a location, but doing it negligently) and could not be held liable for any failure to act (a concept known as nonfeasance)22.

It has been argued by many legal commentators that this position provided no incentive for road authorities to take action to identify and mitigate emerging risks. A purely reactive approach was perpetuated within many road authorities (described by some commentators as a ‘what I don’t know can’t hurt me’ or ‘head in the sand’ approach). Road authority strategies, policies, standards and procedures were rarely tested in court and deeper analysis detected that many authorities were not adopting a truly systematic approach to asset management, i.e. they did not have all, or some, of the sound building blocks of asset management in place (e.g. road inventories, road hierarchies, visual inspection regimes).

Although this seemed to be a manageable situation as mainly low value claims were being brought, the incidence of claims began to rise towards the end of the last millennium and into the start of the current millennium. This led local government in Australia, in particular, to start to express concerns about the increasing total cost of claims and their ongoing financial sustainability.

Also around this time, legal professionals and social commentators began questioning whether the ‘highway rule’ remained in the best interest of society and whether general principles of negligence would better be applied to highways-related civil liability cases.

Uncertainty resulted and two roads-related cases (often referred to simply as Brodie23 and Ghantous24) were identified to go to the Australian High Court to examine and redefine the ‘level’ of, and determinants for, highways liability.

22 The SCOTI (formerly ATC) working paper Road Authority Response to High Court Abolition of Non-Feasance Immunity, dated May 2002 quotes that the Australian Local Government Association had advised that the highway rule allowed approximately 50% of all roads-related claims received by councils to be rejected. 23 Brodie v. Singleton Shire Council (2001) HCA 29. 24 Ghantous v. Hawkesbury City Council (2001) HCA 29 (originally [1999] NSWCA 51).


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B.2 The High Court Judgements in Brodie and Ghantous The commentaries and judgements in the cases of Brodie and Ghantous were handed down on 31 May 2001 and stretch to hundreds of pages. Hence, only a very brief, working summary is provided within this guideline.

In the most simplistic terms, the outcome of the cases was the immediate abolition of the ‘highway rule’ and the underlying concept of nonfeasance. This effectively changed the highways-related civil liability landscape overnight and signalled the need for road authorities to work towards being more proactive in managing and maintaining their road networks.

In short, the judgement held:

the ‘highway rule’ was out-dated and future cases would be heard under the principles of negligence, and assessed against the road authority’s generic duty of care

‘the world is not a bowling green’ in that there can be no reasonable expectation of the highway being in a perfect state of repair at all times

individuals would now be expected to take greater personal responsibility, especially when coming across obvious danger of slips, trips and falls.

Additionally, road authorities would be required in a claim scenario to successfully demonstrate that they had effected reasonable measures in managing and maintaining their highway networks, i.e. they had in place all of the building blocks of a sound, systematic approach to asset management.

B.3 After Brodie and Ghantous (May 2001 to date) The High Court decisions in Brodie and Ghantous prompted much debate within and between road authorities. A period of uncertainty resulted, with some fearing that a floodgate for claims had been opened.

A number of road authorities responded immediately by reviewing and further developing their asset management systems. Encouragingly, it soon became apparent that the development of systems with the primary objective of being able to defend all claims received was not a desirable or sustainable approach. Similarly, having a good working knowledge of the entire local network was going to become vitally important.

Some commentators at the time suggested that this was actually a golden opportunity for road authorities to stop and ask fundamental questions as to their service delivery, and a logical chance to review their current strategies, policies, standards and procedures. This has led to many impressive developments.

In addition to specific consideration of incidents on the road network, a broader civil liability crisis also came to a head around this time, having a major impact on public life throughout Australia. The collapse of a major insurer (namely HIH) only seemed to exacerbate the situation.


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A New South Wales led, but nationally encompassing, review of civil liability resulted, with many associated reviews taking place at a more local level. Federal, state and local bodies representing road and transport interests (e.g. TISOC25, Australian Local Government Association, Austroads) considered and determined their course of action, with perhaps one of the most significant outputs being an Austroads action plan addressing the abolition of non-feasance within the context of the civil liability crisis.

In 2002 and 2003, the first amendments to often longstanding state-based civil liability legislation assented, re-introducing some clarity to civil liability and importantly, greater certainty for road authorities. However, the precise approach and detail adopted with respect to highways was (and remains) subtly different within each state, as indicated in Table B 1 below.

Table B 1: Major developments in civil liability legislation affecting highways (2002 – 2003)

State/territory (alphabetical) Major developments

ACT

Civil Law (Wrongs) Act 2002, Civil Liability (Wrongs) Act 2002 Law (Wrongs) Amendment Act 2003 Chapter 8 – introduces provisions relating to the liability of public authorities (inc. road authorities)

which follows NSW

New South Wales

20 March 2002 – Civil Liability Act 2002 came into force Section 42 introduces ‘competing demands’ defence for public bodies Section 45 introduces ‘special protection’ for road authorities (‘actual knowledge’ concept) 28 November 2002 – Civil Liability Amendment (Personal Responsibility) Act 2002 into force

New Zealand

1974 – relevant provisions of the Accident Compensation Act 1972 into force. Those provisions impose a statutory bar on the right to sue for civil damages for accidental personal injury in New Zealand where the accident occurred on or after 1 April, replaced by no-fault government funded compensation regime

Regime retained by subsequent Acts

Northern Territory 1 May 2003 – Personal Injuries (Liabilities and Damages) Act 2003 came into force No specific provisions relating to liability of public authorities or road authorities 2011/12 – review of Control of Roads Act scheduled

Queensland

29 August 2002 – Personal Injuries Proceedings Act 2002 came into force 2 December 2002 – Civil Liability Act 2003 came into force (subsequently amended in 2007) Clause 35 introduces ‘competing needs’ defence Clause 37 introduces ‘special protection’ for road authorities

South Australia

1936 – Wrongs Act came into force 1 December 2002 – Wrongs (Liability and Damages for Personal Injury) Amendment Act 2002 came

into force Section 42 of the Law Reform (Ipp Recommendations) Act 2004 has the intent of restoring the

‘highway rule’ indefinitely

Tasmania 1 January 2003 – Civil Liability Act 2002 came into force (amended in 2003, 2005 and 2008) Section 38 limits actions against public and other authorities for breach of duty Section 42 introduces special non-feasance protection for failure to carry out roadwork

25 Formerly SCOT.


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State/territory (alphabetical) Major developments

Victoria

30 October 2002 – Victorian Transport (Highway Rule) Bill 2002 – reinstated the ‘highway rule’ until 1 January 2005

1 July 2004: Road Management Act 2004 came into force, includes: - Statutory duties of road authorities - Road authority defence (consideration of character of highway, etc. and ‘actual knowledge’) - Threshold for attrition type claims linked to inflation - Requirements for the investigation and reporting of incidents - 13 September 2004 – Code of Practice for Road Management Plans introduced

1 January 2010: Road Management Act 2004 amended

Western Australia 1 January 2003 – Civil Liability Act 2002 came into force (amended December 2003) Section 5Z guides road authority approach to managing and defending claims Section 5X introduces ‘competing demands’ defence

Perhaps the most important points to emphasise from the table are:

New South Wales, followed by a number of other states, introduced a ‘special protection’ for road authorities, which remains in place today — although it is vital to note that this does not constitute a restoration of the ‘highway rule’ and its blanket immunity.

In introducing the concept of a ‘special protection’ to the NSW legislative assembly on 20 March 2002, Premier Bob Carr advised that:

We will revisit the High Court’s removal of the immunity from liability of highway authorities. While reinstating the immunity might not be the best approach, we want to protect public authorities from unrealistic standards imposed with hindsight by a court. What we expect of public authorities must take into account their obligations to the community generally and their resources to perform those obligations. Their actions or omissions should not be judged as though the particular case is the only case in which they are required to act.

In November 2002, the Honourable Michael Egan informed the NSW legislative assembly that: [Civil Liability legislation]……will make important changes to the way that courts deal with claims against public authorities. These changes simply recognise that services provided to the community by public authorities are not provided for commercial gain but for the public good. The bill will not, therefore, sanction a public authority to act in a negligent or unsafe way. It will, however, require the courts to take into account principles relating to the financial and other resources available to the authority, the general responsibilities of the authority, and its compliance with general practices and applicable standards. The bill will also protect regulatory and roads authorities if they could have done something to avoid a risk but did not do so. Public authorities carry out what is often a limitless task with necessarily limited resources.

The introduced legislation includes a provision that for a claim for inaction to be successful, the claimant must successfully prove that the road authority had ‘actual knowledge’ (a concept also sometimes known as ‘prior knowledge’) of the alleged defective infrastructure – which in practice is perhaps a harder task that previously encountered by a claimant. The concept of ‘actual knowledge’ is further discussed below.

South Australia restored the ‘highway rule’ and this position remains at the time of writing of this guide


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Victoria temporarily restored the ‘highway rule’ until the development and introduction of its Road Management Act 2004 (amended on 1 January 2010), which details a number of statutory duties for road authorities in that state (see below for more information).

In general terms, the developments after the cases of Brodie and Ghantous have:

helped road authorities in determining the likely validity of any claim received and what is likely to be required in mounting an effective defence to a claim, if desired

introduced the concept of ‘actual knowledge’

allowed public bodies (which include road authorities) to mount a defence to a claim based on an argument of competing needs for resources across the many functions it has to fulfil

permitted many road authorities the opportunity to issue an apology (or an expression of regret) without admitting liability26

resulted in a reduction in the value of successful claims through the introduction of caps to compensation for various types and severity of injury.

Notwithstanding the above summary, it is strongly recommended that practitioners familiarise themselves with further detail regarding the current legislation and highways liability position within their state.

B.3.1 Contractors and ‘Actual Knowledge’ The case of Leichhardt Municipal Council v. Montgomery27 concerned a highways-related incident that occurred in NSW in April 2001, and ultimately reached the High Court of Australia. A judgement was handed down on 27 February 2007.

The proceedings are significant, considering in some detail the obligations of a road authority with respect to its contractors.

The High Court judgement, which is binding throughout Australia, included the finding:

If the highway authority acts with reasonable care in appointing and supervising the work of an independent contractor, but that contractor is negligent, the contractor will ordinarily be liable.

While this is largely common sense and obviously of great solace to road authorities, the precise relationship between and roles and actions of a road authority and its contractor/s are still likely to come under scrutiny in the determination of future highways liability claim. Accordingly, it is suggested that no assumption should be made that a road authority will be able to simply withdraw itself from the proceedings and immediately cease activities such as securing documents and records that would clarify and support its position.

Whether a road authority had ‘actual knowledge’ of a risk or defect is generally considered in state legislation and has ultimately become a key debating point in any highways-related civil claims.

26 Whether a road authority should use the term ‘apology’ or ‘expression of regret’ is determined by the local civil liability legislation in that jurisdiction. 27 Leichardt Municipal Council v. Montgomery (2007) HCA 46.


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For example, Section 45 of the NSW Civil Liability Act 2002 specifically states: A roads authority is not liable in proceedings for harm arising from failure of the authority to carry out roadwork, or to consider carrying out roadwork, 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.

State specific case law has provided some local guidance on what constitutes ‘actual knowledge’ in terms of the type of knowledge (information) required and precisely who receives it within the organisation. However, the current array of judgements are considered somewhat unclear and a number of recent legal commentaries have suggested that a High Court test case may well be required to set a clearer, national position.

B.3.2 Victorian Road Management Act 2004 (Amended 1 January 2010) Perhaps the most interesting development following the cases of Ghantous and Brodie has occurred in Victoria, with the introduction of the Road Management Act 2004 (as amended 1 January 2010). The model adopted largely follows and picks up the experience of the United Kingdom, where road authorities have had a statutory duty to maintain the highway and a defence mechanism to claims since 198028.

In summary, the Road Management Act 2004 (as amended 1 January 2010):

establishes the general principles of, and a statutory framework for, the management and maintenance of the road network in Victoria (including formally defining the terms ‘maintenance’ and ‘repair’, and the principles of ‘minimising road safety hazards’, ensuring the safety of road users and the community, and meeting the needs of the community and road users)

sets out the rights of road users

details the role, functions and powers of road authorities (e.g. Section 40, which details the statutory duty to inspect, maintain and repair public roads)

provides for Codes of Practice to supply further practical guidance in relation to road management

facilitates the development of road management plans

clarifies issues relating to highways-related civil liability29 (Part 6, Sections 97 to 113 inclusive) and the claims procedure (Part 6, Sections 114 to 116 inclusive, which include requirements for the notification of incidents and their investigation)

introduces a power (Section 41) for the road authority to determine standards of construction, inspection, maintenance and repair, including consideration of ‘intervention actions’

formalises the concept of providing warning signs if a repair cannot be remedied immediately.

Commentaries D and F of Austroads (2009a) provide further discussion regarding on the Victorian Road Management Act 2004 and include extracts from the VicRoads Road Management Plan.

28 Sections 41 and 58 of the UK Highways Act 1980. 29 Including the introduction of a financial threshold for certain examples of attrition-based claims.


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B.3.3 Summary While it can be demonstrated that developments in legislation since 2002–2003 have led to a fall in the overall number of claims brought against road authorities, the issue of highways-related civil liability remains of significance.

Handling incoming claims remains a drain on resources, even if the claim seems to have little basis and is ultimately rebutted. The public interest generated when incidents occur and go through the courts cannot also be forgotten.

Subtle local variations in the liability position as it relates to highways have already occurred, and will continue to occur, as case law (precedent) emerges. Therefore, road authorities are advised to keep up-to-date with developments through their legal representatives.

B.4 The Future? It has been suggested by many commentators that historical patterns in civil liability resemble the motion of a pendulum, i.e. there are phases where legislation and case law allow the outcomes to be more favourable to the claimant, and counter-phases where the outcomes are more favourable to the defendant/s.

Those favouring the pendulum analogy and having applied it to highways-related civil liability, suggest that the position under the ‘highway rule’ favoured road authorities. It is then argued that following the abolition of the ‘highway rule’, the claimant was favoured for a period of two or three years (say to 2003), before the pendulum again swang back in favour of the road authority under the direct influence of civil liability legislation, and a position that remains today.

If the pendulum analogy is accepted, if follows that there will inevitably be a time in the future where the pendulum will swing back to favour claimants over road authorities. Precisely what the catalyst for the swing back will be (i.e. an event, media coverage, or a specific legislative clause), when it will occur, and how it will affect the volume and value of highways-related civil claims is largely unknown. However, early indications are that the current financial caps on compensation and sliding scales of injury imposed on certain personal injures may well be starting to emerge as an issue.

Perhaps the most significant commentary in this regard has been by the Honourable Justice Ipp, who headed the national review of civil liability in 2002. In his paper The Metamorphosis of Slip and Fall (Ipp 2007), Justice Ipp opines that the civil liability legislation introduced by most states went beyond the recommendations of his review committee. He opined that:

Certain of the statutory barriers that Plaintiffs now face are inordinately high, public authorities [i.e. including road authorities] are given a host of novel and powerful defences that are in conflict with the notion that the Crown and government authorities should be treated before the law in the same way as an ordinary citizen. It is difficult to accept that public sentiment will allow all these changes to remain long-term features of the law.

Ipp then argues that the picture emerging under the ‘special protection’ for highway authorities is actually more powerfully constrained against successful litigation than under the ‘highway rule’, and that this has led to more scrutiny than previously, which in turn means higher legal costs. Ipp also remains unconvinced by the competing demands defence available to public bodies, calling it ‘curious’.


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Ipp (2007) concludes that: Each case will turn on its own facts, i.e. no universal rule can be applied, and that ‘the pendulum’ of negligence is constantly in motion…although there have been times when its movement has been excessively rapid, it has generally moved slowly. I suspect that it is moving towards the advantage of plaintiffs again, albeit pretty slowly.

An Australian Lawyers Alliance (ALA) press release of 21 September 201130 opines that personal injury victims are now suffering undue financial hardship, citing that 90% of motor vehicle accident victims receive no compensation for their pain and suffering and that only the most basic costs of medical care are being recovered. The ALA argues that this was not the position intended under the national review of civil liability in 2002.

An address by the Honourable Wayne Martin, Chief Justice of Western Australia on 19 October 201131 also supports the pendulum analogy in returning greater support to claimants. The address concluded by stating of civil liability in general that:

The size of the reduction in the number of claims for personal injury brought following the enactment of the legislation was significant, regardless of whether it was caused by the courts tightening their position or the direct impact of the legislation.

It is again suggested that road authority officers continue to move forward with a systems-based asset management approach and retain regular communication with their organisation’s legal representatives for ongoing information regarding developments in civil liability in general, and highways-related civil liability, specifically.

30 Entitled NSW Personal Injury Victims are Suffering Needlessly while Insurers Rake in Profits. 31 Entitled The Pendulum Swings….contraction of the scope of liability in tort since 2000 – The Civil Liability Act: Impact and Effect, which was a presentation to the Australian Insurance Law Association Conference 2011.


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APPENDIX C GLOSSARY The definitions contained in the table below have been sourced from the Farlex On-line International Legal Dictionary <https//:legal-dictionary.thefreedictionary.com>.

Term Definition Appellant A person or party that has won the right to appeal the initial judgement in a

legal case Allegation A statement of claimed facts contained within a complaint in the case of

highways liability, a written notice of the intention to file and commence a civil action

Award See also settlement. The decision to give a monetary judgement to a party under a case brought in civil law. The actual amount awarded is also sometimes called the quantum or colloquially, the ‘settlement’ or the ‘settlement figure’

Balance of probabilities

The burden of proof in a legal proceedings brought under civil law

Burden of proof The extent to which a party in a legal case must satisfy the judge when a particular fact or occurrence is being considered. In criminal cases, the burden of proof is beyond reasonable doubt. In civil cases, the burden of proof is on the balance of probabilities

Civil claim A claim for compensation brought under civil law Civil law A body of rules that delineate private rights and remedies and govern disputes

between individuals in civil law (i.e. as distinct from criminal and public law) Civil liability Potential responsibility for payment of compensation or other court

enforcement in legal proceedings brought under civil law Claim Also see allegation. Facts that combine to give rise to a legally enforceable

right or legal action Compensation Also see award. The monetary payment received by a successful claimant in a

civil action following an injury or loss to restore them to their original position prior to the incident in question occurring

Claimant Also see Plaintiff. The person or party bringing a legal claim under civil law Contributory negligence

A doctrine in common law. Consideration of the extent and significance of the action/s of the person or party bringing a civil claim and whether their actions have contributed to the occurrence and/or severity of the incident in question, and if so, by what extent

Defence of claim Denial of the truth or validity of a civil claim received Defendant Also see Respondent. The person or party seeking to defend an action against

them brought in civil law Duty of Care The duty of a body, entity or person to provide a level of care that a reasonable

person would exercise under the circumstances at hand Evidence The documentary or oral statements and the material objects admissible in a

court of law that are helpful in forming a conclusion/s or judgement in that case Judgement The decision of a judge at the end of a legal proceeding


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Term Definition Legislation The preparation and enactment of laws by a legislative body Litigation Also see sue. The process of bringing a legal action against a person or

party/parties under civil law Loss The suffering of a claimant due to an incident. The loss can be physical and/or

economic, with the latter including a claim for lost income, damage to property, accrues and future medical costs etc.

Misfeasance An act or action which is legal, but has been performed improperly Negligence Conduct that falls below the standards of behaviour established by law and

society for the protection of others against unreasonable risk of harm Nonfeasance The non-performance of an act or action which ought to have been performed Onus of proof The obligations that a person or party in a legal claim must meet to prove a

fact/s in court. For civil cases the onus of proof is on the person bringing the claim (Plaintiff or Claimant)

Particulars of Claim

Also see Statement of Claim. The first official submission made by a Plaintiff/Claimant in a civil action which they rely upon to document the basis for their claim

Plaintiff Also see the Claimant. The person or party instigating a claim under civil law Precedent a court decision that is cited as an example or analogy to resolve similar

questions of law in a later case a legal case establishing a principle or rule that a court may utilise when deciding subsequent cases with similar issues and facts

Proceedings The process in a legal case from the initial lodgement of a civil claim until its settlement (NB. which may or may not be a court judgement)

Rebuttal Where a body of evidence, presumption or responsive legal argument is introduced to counter, disprove or contradict a claimant’s evidence

Respondent Also see Defendant. The person or party defending a civil claim made against them

Risk A potential danger that threatens to harm or destroy an object, event or person. May also be known as a hazard. A foreseeable risk is a danger that a reasonable person should anticipate in the course of their action/s

Settlement The act of determining the outcome to a civil law claim between parties without the matter progressing through a trial. Often referred to colloquially as ‘settling out of court’ or ‘settling on the court steps’. In agreeing to settle a civil claim, the Plaintiff/Claimant typically forgoes the right to lodge any future claim regarding the same incident

Single entity Also sometimes known as a Corporation. A body that is granted a charter recognising that it is a separate and stand-alone entity having its own rights, privileges and liabilities distinct from that of its individual members or officers. In this case, a road authority or local council will be seen as a single entity, rather than consideration being given to individual sections or teams within that organisation

Statement of Claim

Also see Particulars of Claim. The first official submission made by a Plaintiff/Claimant in a civil action which they rely upon to document the basis for their claim


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Term Definition Sue Also see Litigation. The process of attempting to secure compensation through

bringing a legal case against a person or party under civil law Unmeritorious claim

A civil claim (or parts thereof) that is believed/shown to be without merit or lacking value

Vexatious proceedings

A claim (or parts thereof) that is shown to have been institutionally malicious and without probable cause

INFORMATION RETRIEVAL

Austroads, 2012, Managing Asset Management Related Civil Liability Risk, Sydney, A4, pp. 63. AP-R412-12.

Keywords:

legal liability, common law, civil law, civil liability, highways-related civil liability, nonfeasance, misfeasance, civil claims, civil proceedings, compensation, road authorities, asset management, highway maintenance, risk management, record keeping, strategy, policy, standards, procedures.

Abstract:

Claims for compensation brought by road users against road authorities alleging defective infrastructure remain a significant issue across Australia. However, the claims environment does vary between the jurisdictions (states and territories) and differences have been found in understanding, urgency and policy responses to highways-related civil liability issues.

While a number of current Austroads guidance documents do include short overview sections on legal matters, the need to provide greater awareness and context was formally recognised. This guideline addresses this need, with its latter sections focusing on the provision of forty (40) items of practical guidance across four categories. Local experience and pertinent documentation from Australia and overseas has been considered in forming this guidance.