The Peril of Potholes – With precarious pitfalls posed by poor design

Personal Injuries & Compensation

Thousands of road users are injured in crashes that occur on roads in Australia every year (and tragically with many people losing their lives in road accidents).  Many of the accidents are the fault of careless motor car or truck drivers.  In such circumstances, the injured person has an avenue to receive financial support via the CTP insurer connected to the at-fault vehicle.  The CTP system is funded through the annual compulsory registration paid by vehicle owners. This system provides a guaranteed fund of money that supports a person who is injured in a motor vehicle accident that was not their fault.

Other accidents are caused by the poor design or lack of maintenance of the roadway itself.  This includes potholes which are a phenomenon commonly occurring on Australian roadways.

A dramatic example of a pothole occurred in a road on south-western New South Wales.  It is considered to be Australia’s largest pothole, spanning 40 metres in length and some 15 metres wide!  Repairing the pothole was a challenge because it was in a road that is in the flattest place in the southern hemisphere, and occurred during a flood event, creating a headache for the Council workers trying to drain the pool of water which filled the enormous pothole.  The solution involved the building of an entire dam to pump out the water in the hole.

The pothole was a massive 9-metres deep!

Crews from the local Council needed to create a makeshift dam to drain the pothole before they could begin repairing the road.


Where did the expression “pothole” come from?  In history, potters would dig into the deep ruts in roads to reach clay deposits underneath.  For potters, this was a cheap source of raw materials for making clay pots.  The drivers of wagons and coaches using the roads knew who had created the holes and so referred to them as “pot-holes”.

Potholes on roads throughout Australia are caused by a variety of factors such as sub-base failure, inclement weather, heavy traffic, and natural wear and tear.  Potholes create a road hazard and can cause significant damage to vehicles, as well as posing a risk to health to bicyclists, motorcycle riders and pedestrians.

Local Councils and road authorities in Australia are legally responsible for road maintenance.  However, Councils are given a broad protection (effectively an immunity from claims by road users) via the Civil Liability Act.  Simply being injured or having your car damaged due to a pothole is not sufficient grounds alone for a legal claim against the local Council in charge of the roadway.  To succeed in a compensation claim, 2 elements must be proved:

  1. That the Council was aware of the problem; and
  2. Failure by the Council to take reasonable action.

“Reasonable action” means that the Council is afforded time to undertake road repair or maintenance and is not held responsible if an accident occurs within a short period of time of the pothole occurring.   This is because the Council can defend responsibility on the basis of needing to respond to multiple enquiries, and particularly during an extreme weather event.

This legal protection is not absolute. Meaning, the Council owes road users a duty to take all reasonable care in respect of foreseeable risks of injury to users of the roadway exercising reasonable care for their own safety.  In an appropriate case (such as the Council failing to repair a reported pothole after several months) a person injured can succeed in claim for financial compensation.

One of my own recent cases involved a successful claim for compensation on behalf of an Executive in Brisbane.  On his way home from work, his motorbike crashed when riding through a roundabout with poor road surface and he damaged his ankle and shoulder.   On investigation, the local Council had been informed some 2 months earlier about specific problems with the road surface at that particular roundabout and had failed to make timely repair. The result was a payout of over $300,000.

The broad protection allowed to local Councils comes from public policy.  Specifically, Councils have large, yet finite (not unlimited), financial resources.  A Council’s budget is restricted by the amount of annual rates collected from local home owners.  In New South Wales, rates are capped by the State Government, and those rates are required to fund a variety of services provided by the Council, not solely for the purpose of fixing local roads and the money needs to be spread across other areas including maintenance of footpaths and parks, as well as rubbish collection.

Interestingly, local Councils in Queensland can set their own rates and that means that individual Councils can determine the amount of money needed to be raised each year to cover the costs of various services.

A good comparison can be made between Byron Bay in New South Wales and Noosa in Queensland.  Both areas are well-known as popular coastal tourist destinations, with about 2 million visitors each year, with many of those being day-trippers in cars.  Noosa has a local road network of 670 kilometres with Byron Bay having 510 kilometres.  However, that is where the similarities end.  Noosa has over 30,000 rate payers and can set its own rates, compared with 15,585 rate payers in Byron.  The result is an annual Council revenue for Noosa of $51 million compared to Byron’s $23 million.

Fun Fact to Finish:  The main road into Byron Bay is a bumpy ride along Ewingsdale Road. The reason for the unevenness of the road surface is that the road is made with a base of logs. The area is a wetland and in the past the cheapest and available landfill was felled trees.


by Mitchell ClarkPersonal Injuries Partner

Read article