It’s likely most people have encountered an uneven footpath, a deep pothole in the road or some other damaged public area in their neighbourhood which could potentially cause injury to the unsuspecting. For those who do experience an injury in a public place and believe it is the fault of their local council for not properly maintaining its facilities, seeking compensation can be a challenging process.

While in most instances councils are recognised as having a ‘duty of care’ towards their ratepayers and residents, Queensland legislation presents a high hurdle for an injured person to clear in order to be successful in a compensation claim against the local authority.



Councils and other government authorities hold extensive public liability insurance policies to anticipate such events but are also given broad protection by Queensland’s Civil Liability Act (‘CLA’). Under section 35 of the CLA, a court must take into account whether the public authority has a duty or has breached a duty based on the limitations imposed on the council by its financial resources, the general allocation of financial resources by councils and the broad range of its activities.

More detail on seeking damages from a local council

If you’re injured on a council property and believe its negligence is responsible for the incident, you may have grounds to claim public liability damages to compensate for lost income, medical and travel expenses, domestic help and lump sums for pain and suffering, permanent impairment and future losses.

To successfully sue a local council, an injured person must show that it breached its duty of care because it was aware, or should have been aware, of the risk which caused the accident. Secondly, a person seeking compensation must also demonstrate the council failed to act to fix or remove the risk within a reasonable timeframe.

When it comes to council-managed roads and footpaths, for example, section 37 of the CLA recognises that local councils are unable to maintain every asset in perfect condition given their financial resources and their other responsibilities. Therefore an injured person must prove the council knew, or should have known about the risk, and failed to act on that knowledge within a reasonable time.

Defences a council can raise to avoid or mitigate the claim

A claimant needs to be aware that there are a number of defences a local council can seek to rely on in reducing its liability for the accident, or denying the claim.

Illegal behaviour by the member of the public who sustained the injury is one obvious disqualifier to making a claim. Another defence is obvious risk, meaning a risk that would have been obvious to a reasonable person in the same position as the injured person. Similarly, the council can argue it is not liable in negligence for harm suffered by another person as a result of an inherent risk materialising, that is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill. A person who engages in a dangerous recreational activity with obvious risk – an activity that involves a significant degree of risk of physical harm – may also fail to hold the council liable for their injury.

The local authority may also argue that the acts or omissions of the injured party contributed to their injury, reducing the payment of damages for the harm they have suffered.

Case Example

In Goondiwindi Regional Council v Tait, Ms Tait was injured when she hit a pothole on a flood-affected part of the road while riding her motorbike. Goondiwindi Regional Council had installed temporary warning signs on both approaches to the floodway, but failed to weigh them down with sandbags or any other weight and one of the signs subsequently blew over. Ms Tait did not see it before hitting the pothole



The Court found in favour of Ms Tait because the council knew the hazard existed, as evidenced by its placement of the signs, and furthermore had known that the condition of the road could worsen if left unrepaired, particularly in wet weather conditions, sustaining a finding that it was negligent in failing to repair the potholes. The Court of Appeal upheld the finding of the trial judge that the exception in section 37(1) of the CLA applied – at the time of the alleged failure, the local council had actual knowledge of the particular risk, the materialisation of which resulted in the harm.