Making a claim for compensation

Council maintains more than 700 kilometres of road network in the local government area. We also conduct regular inspections of the road network and continually assess and prioritise repair work.

Unless exceptional circumstances exist, we will deny claims. This is based on the fact that Council is not negligent because a road is in poor condition.

Exceptional circumstances would be where a section of road or pothole was reported to Council and, after a reasonable period of time, Council had taken no action to repair it and it caused an incident again.

Council is bound by budgetary constraints and is not always able to maintain its roads and footpaths to be free from imperfections or to repair all damaged sections as soon as the damage occurs.

As a result, road users need to drive according to the conditions of the road.

Therefore, Council cannot be held negligent for damages caused by road conditions.

Potholes

Council may not be liable for damages arising from potholes and other hazards unless Council was aware of the pothole and had been negligent in not addressing the risk within Council’s ability in terms of resources and other priorities requiring attention.

To find more information on road repairs and potholes, please see the fiollowing page:

Council's approach to road repairs

Loose rocks, gravel and windscreen damage

Council is bound by budgetary constraints and is not always able to maintain its roads to be free from imperfections or to repair all damaged sections as soon as the damage occurs. As a result, road users need to drive according to the conditions of the road.

Therefore, Council cannot be held negligent for damages caused by road conditions.

Footpaths

There is considerable case law to the effect that imperfections in footpaths are an everyday occurrence and pedistrians are in a perfect position to perceive and avoid such flaws.

Council is afforded certain protections from liability under section 45 of the Civil Liability Act 2002, which states:

45   Special non-feasance protection for roads authorities
(1) A roads authority is not liable in proceedings for civil liability to which this Part applies 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.
(2) This section does not operate—
      (a)  to create a duty of care in respect of a risk merely because a roads authority has actual knowledge of the risk, or
      (b)  to affect any standard of care that would otherwise be applicable in respect of a risk.

Council has a duty of care in administering the ‘reasonable person’ test when performing mowing duties. It considers factors such as whether Council ought to have inspected the area thoroughly before any works or installed stone guards and/or screens in front of nearby properties, which we understand would be unusual precautions for the reasonable person mowing grass.

On causation and likelihood, the courts may also accept that the operator is wearing goggles and ear muffs and would not be expected to have awareness of stone chips occurring.

Council mower operators have a safety checklist which is performed before they begin mowing, including putting up signs to inform cars driving past or cars parking in the area. The risk of damage is minimised as much as possible before mowing, and at times not all hazards may be identified that are not obvious.

If any damage is alleged to occur from a Council mower, please notify the operator if you're able to do so at the time of identifying the damage.

Trees are generally treated under the principles of nuisance. The principles of nuisance are:

• Council must have notice and reasonable opportunity to abate the nuisance.
• Where a visual inspection is not sufficient to support allegations, the onus is on the claimant to prove that it is Council’s tree causing the damage.
• Failure to abate within a reasonable period of time.
• Council is not liable for pre-existing damage, prior to being on notice.

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.

For more information on public trees and your property, please refer to Chapter B10: Tree Preservation and Vegetation Management of the Kempsey Development Control Plan 2013.

Sewer and stormwater pipes

Sewer and stormwater pipes are assets of the property owner and therefore the property owner's responsibility to maintain.

If a blockage occurs in your private sewer or stormwater pipe, you may need to engage a licensed plumber to fix the problem.

Blocked sewer lines may be caused by tree roots, inappropriate material put down the drains, sections of pipe collapsing, ground subsidence, debris or siltation.

Tree roots are not known to enter pipes that are well maintained. If tree roots have entered a pipe, this is usually the result of the roots seeking water that is available because of the actual deterioration of the pipe (due to age or quality, for example) or the failure of the seals joining the pipes.

Council recommends that you seek professional legal advice if you are unsure whether you can claim for your loss or damage.

Driveways and private structures

Driveways and private structures are assets of the property owner and therefore the property owner's responsibility to maintain and repair.

Where a property owner believes that public tree roots are damaging or have the potential to cause damage to driveways and structures, the property owner should contact Council as soon as possible to allow Council to take appropriate action concerning the public tree.

Council recommends that you seek professional legal advice if you are unsure whether you can claim for your loss or damage.

Falling tree limbs

Although the tree limb may cause damage to property, this does not create an automatic liability in the event of loss occurring. Trees are a normal part of an urban environment and will, from time to time, lose branches, particularly in inclement weather.

Council requires prior knowledge of any specific risk posed by the tree. Knowledge of a general risk that a tree might drop branches or fail does not in itself create a legal liability for Council.

We will investigate the circumstances surrounding the incident to establish whether Council has any legal liability.

Completion and acceptance of the Claim for Compensation Form does not represent an admission of liability or a waiver of rights on the part of Council.

Council reserves its right to recover all or any costs that it has unnecessarily or unreasonably incurred in successfully defending insurance claims made against Council.

Your claim will be investigated and assessed on its own merits.

We endeavour to respond to claims as quickly as possible. However, the processing of claims depends on the supply of relevant information and, therefore, assessment of your claim may take some time to complete.

If you submit a claim for compensation to Council, the process of conducting enquiries and determining an outcome can take, on average, four to six weeks. Complex claims can take months longer.

Sometimes there are delays in obtaining information which are beyond Council's control - for example, when information is required from third parties, contractors or witnesses.

Council works to respond to claims as quickly as possible, but claims brought in negligence are often complicated and Council asks for your patience and cooperation during this process.

Kempsey Shire Council is not liable for any injury, loss or damage you have suffered unless you can prove Council has acted negligently or is in breach of the law.

The fact that an incident has occurred on Council owned or managed land does not automatically mean Council is liable or will provide you with compensation.

Establishing negligence can be time consuming and often difficult. If you hold an insurance policy that provides cover for this type of loss, such as motor vehicle or domestic insurance, you may find it quicker and easier to lodge a claim with your insurer. Any compensation paid by Council comes from Council’s general account - that is, ratepayer funds.

Council assesses claims for compensation in accordance with the Civil Liability Act 2002 (NSW), also known as the CLA. The Act provides protections for local government authorities that Council will rely on to defend a claim.

If you have suffered a personal injury, you are required to provide:

• photos of the exact location where the injury took place
• photos of the injury, if relevant
• receipts or invoices for any medical expenses related to the incident.

If you are claiming property damage, you are required to provide:

• original receipts or invoices for the damaged property and a minimum of two independent quotes for replacement of the item or repair of the damage
• in the case of vehicle damage, relevant vehicle details, such as registration number and driver details
• photos of the damaged property or vehicle
• copies of any expert opinions and/or report on which you wish to rely to support your allegation that the damage is due to Council negligence
• details of all expenses incurred and the specific amount you are seeking.

You will be required to provide documentation to substantiate all amounts claimed.

Yes, it is your right to engage a lawyer at any time. However, the decision to do so is entirely a matter for you, and Council accepts no liability for legal costs you incur.

You should discuss legal costs and the risks associated with litigation with your legal advisor.

Civil Liability Act

The Civil Liability Act 2002 (NSW) provides a way for people to take legal action against Council, but only if they can prove Council has acted negligently or breached the law.

The Act promotes the idea of personal responsibility. This means that Council does not have to warn you of an obvious risk.

This legislation was enacted because the number of legal cases against public entities had been rapidly increasing. As a result, councils were finding it hard to obtain insurance and, if they did find insurance companies to cover them, the cost was beyond councils' means.

What is Negligence?

To determine negligence, you must establish, on the balance of probabilities, three essential elements:

1. A duty of care was owed by Council to you;

2. Council breached the duty of care owed to you; and

3. The loss or damage suffered was caused by Council's breach of duty of care.

What is an obvious Risk?

An obvious risk is if a reasonable person knew about the risk, or ought to (because of common knowledge) have known about the risk.

An example of an obvious risk is diving from a ledge into shallow water at low tide, or tripping over something that a reasonable person would have seen.

Is Compensation Available on Compassionate Grounds?

We are unable to use ratepayers' money to pay compensation unless a clear legal liability has been established.

Why Does council request photos?

One of the most effective ways to avoid confusion about the circumstances surrounding your claim is to provide photographs. Submitting photos with your claim is not essential but it ensures that Council will look into the correct issues.

Please ensure that you take photos only if it's safe to do so.

If you do provide photos, Council requests that you take a variety of shots from different angles to clearly show the situation that supports your claim.

When might Council be unable to pay compensation?

Kempsey Shire Council can't pay compensation if:

• you can't establish the cause of the damage
• the damage was caused by, or resulted from, a weather event - for example, fallen trees or branch damage
• damage was caused by defects when Council was not previously aware of the problem - for example, potholes, footpaths or tree roots
• damage was caused by a contractor acting on Council's behalf - for example, carrying out road works or parks maintenance. Such claims will be referred to the relevant contractor to respond to you directly
• Council was complying with its statutory duties under relevant legislation
• incidents relate to the condition of pit lids or other infrastructure belonging to utility companies.

Council will investigate the circumstances surrounding the incident to establish whether Council has any legal liability. Your claim will be investigated and assessed on its own merits.