Council liability for road accidents

April 2005

In August last year, the Christchurch Coroner, Richard McElrea, publicly warned that he may make adverse comments about a local council's roading contractor, following the inquest into the tragic death of a woman in a car accident (The Christchurch Press, 19 August 2004).

The accident occurred when the car hit ice on the road at about 3pm.  The evidence at the inquest had been that an employee of the roading contractor had inspected the stretch of road at about 10am on the morning of the accident, but had not found any ice problems. 

More than six months later, the Coroner is yet to issue his findings, but the issue of local authority liability – both civil and criminal – for failures in road maintenance remains a live and topical one. 

Civil liability for damages in negligence

The maintenance of roads is divided between various parts of central and local government under various statutes.  Councils have statutory powers to build and maintain roads under Part 21 of the Local Government Act 1974, but no obligation to do so.

Where, however, the council carries out construction or repair of a road, the council is required to take "all sufficient precautions for the general safety of the public and traffic and workmen" (section 353 of the Act). 

The civil liability of councils and their contractors requires careful review in each individual case.  Typically, a claim would be in negligence (or possibly nuisance).  Actions for damages for personal injury by accident have largely been abolished by the accident compensation statutes.

Civil liability for councils is therefore limited to liability for damage to property and, possibly, exemplary damages (although the likelihood of that has been further reduced by recent decisions in the Court of Appeal).  The question of council liability is further complicated by the use of contractors (including council-controlled organisations) and sub-contractors to carry out the work. 

Assuming, in the case of a road accident, a case were brought in negligence, the plaintiff would need to prove:

• the existence of a duty of care owed to the plaintiff;
• a breach of that duty; and
• resulting harm to the plaintiff.

The focus of this article is on the first of these elements: the duty of care.  In the case of a road accident, whether there is a duty of care on a council will depend on an assessment of all of the circumstances.  The fact that councils have a statutory power, but no statutory obligation, to maintain roads will count against the duty of care if no particular work can be identified as contributing to the accident. 

If, however, a council decides to exercise its power and carry out maintenance, that may give rise to a duty of care in carrying out particular work.  Once a particular project is under way, of course, the council also comes under the section 353 obligation to take all sufficient safety precautions while it is ongoing. 

There are a number of English court decisions on roading responsibilities of councils.  However, those decisions must be read in context – in particular, there is a statutory duty on English councils to keep highways in repair, which is a requirement not directly imposed on New Zealand councils.

However, that statutory duty does not necessarily give rise to a duty of care in negligence.  Specifically, in cases involving lawsuits for road accidents, the House of Lords has held that the duty to maintain the road does not impose a duty to put up warning signs; and that the duty to maintain does not impose a duty to keep the road clear of ice (although a statutory obligation to do that as well was subsequently enacted). 

Criminal liability

The basis of criminal liability of councils and contractors is quite different, and also requires careful review in each individual case. 

In England, an ongoing criminal trial has been dealing with criminal liability where an English local authority contracted a third party to carry out building servicing obligations.

Seven people died in a deadly outbreak of legionnaire's disease in Barrow-in-Furness, Cumbria, which the prosecution has alleged is due to the council’s failure to ensure the servicing by a contractor of a council air conditioning system. 

On March 11 the trial was adjourned when the Judge dismissed the charges against the council.  The reasons for that decision have not yet been released, but the consideration of the council’s duties in criminal law may shed some light on this area.  The council’s design services manager, who was responsible for the servicing contract, remains on trial. 

In New Zealand, various offences under the Crimes Act, or the Health and Safety in Employment Act, may apply.  The most recent relevant example is probably the July 2004 convictions for criminal nuisance of a district council and its contractor, after a private prosecution.

A motorcyclist had suffered non-serious injuries after his motorcycle skidded on gravel chips thrown across the centre line, during the contractor's re-sealing of the other side of the road.  The judge found that there was no sign up to warn oncoming traffic.

Criminal nuisance (section 145 of the Crimes Act) depends on the commission of an unlawful act or omission to discharge a legal duty, knowing that the act or omission would endanger lives, safety or health.

The Court relied on section 353 of the Local Government Act, among other factors, as giving rise to the relevant legal duty.  Importantly, the approach of the courts, and the legal duty itself, are quite different from the duty of care in negligence discussed above.

The Court noted that no mental element was required for the offence of criminal nuisance, and so held that "The Council need not have intended the breach – nor need to have known about it." 

However, that view has since been overruled by the Court of Appeal in R v Andersen (CA367/03, 22/9/04), and the Court's approach would have to be different now.  In Andersen, the Court of Appeal rejected previous legal authority, which had taken the view that negligence was sufficient for criminal nuisance to be committed, and instead the Court of Appeal held that recklessness was required. 

As a result, a successful prosecution for criminal nuisance must now show that the defendant was reckless, rather than simply negligent, in its actions.  Whether the district council mentioned above would, in the light of the decision in Andersen, still be convicted of criminal nuisance would depend on the evidence – it may be that the Court may not have found the council to be reckless. 

Although in the context of English law, some further guidance for councils may yet be found in the reasons for the judge's dismissal of the charges against the Barrow County Council, which can be expected after the conclusion of the trial. 

This article was first published in Local Government Magazine.