Before Council is obliged to pay compensation for any injury, loss or damage suffered, it must be established that this injury, loss or damage was caused as a result of Council's negligence.
Council reserves its right to recover all or any costs that have been unnecessarily or unreasonably incurred by the Council in successfully defending insurance claims made against the Council.
The legislation that applies to Council’s responsibility for damages resulting from potholes or any other hazards on its roads is the Civil Liability Act 2002 (NSW) (the Act). The Act sets out a number of principles to be employed in determining whether is liable for injury, loss or damage suffered by road users. For example, section 45 of the Act provides non-feasance protection for roads authorities.
“A roads authority is not liable in proceedings for harm arising from a failure of the authority to carry out road work, or to consider carrying out road work, unless at the time of the alleged failure the authority had actual knowledge of the particular risk the materialisation of which resulted in the harm.”
The principles concerning Council's management of resources and responsibilities as a Roads Authority are set out under section 42 of the Act:
"The functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising those functions.
The function required to be exercised by the authority are to be determined by reference to the broad range of its activities and not merely by reference to the matter to which the proceedings relate.
If you are insured privately for the damage or injury sustained, such as motor vehicle insurance, you may wish to report the claim to them. If covered they will settle your loss and then pursue recovery against the Council on your behalf.
Council recommends that you seek professional legal advice if you are unsure about whether you are able to claim for your loss or damage.