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Norman Waterhouse

The Road to Recovery

In the matter of Alexandrina Council v Foster [2019] SADC 140, the District Court of South Australia (the Court) has delivered a judgment regarding the extent of the immunity for road authorities under the Civil Liability Act 1936 (SA) (the CLA). The effect of the determination is that roads which have been closed and are in a dilapidated state may be the subject of legal liability for councils.


Mr Foster claimed that the Council had been negligent in failing to prevent erosion from a dirt road bordering his property. The road had eroded over time and had undermined the stability of Mr Foster’s fences and deposited sand onto his agricultural land. The effect of this was that a portion of Mr Foster’s land was unusable for its purpose.

In 2008, the Council resolved to close a portion of the road from public access and plans were made to rehabilitate the road so it could be subsumed into an adjacent conservation park. However, no work was completed on the road and it was left to deteriorate and erode.

Mr Foster sued the Council in negligence for the damage caused to his property.

Decision of the District Court

The Council argued that the road was indeed a ‘road’ within the meaning of section 42 of the CLA, and thus the Council should have immunity in respect of Mr Foster’s claim.

Pursuant to section 42 of the CLA, road authorities are not liable in tort for any failure to maintain, repair or renew a road, or for a failure to take any other action to avoid or reduce the risk of harm resulting from a failure to maintain, repair or renew a road.

A ‘road’, for the purposes of that section, means a street, road or thoroughfare to which public access is available to vehicles or pedestrians.

The Court determined that due to the closure and run-down state of the road in this case, it was not suitable for the purpose of transport by vehicle or pedestrians and did not constitute a ‘road’ for the purposes of section 42 of the CLA. In coming to this decision, the Court considered the ordinary meanings of the words in the definition of ‘road’ under the CLA, relevant definitions under section 4 of the Local Government Act 1999 (SA), and the intentions of the CLA.

As the Court concluded that the road did not meet the definition of a ‘road’ under the CLA, the Council was not given the immunity that it would have otherwise been afforded pursuant to section 42 of the CLA. The Court accordingly found against the Council.

Take Home Message

Section 42 of the CLA operates to protect councils and other road authorities from liability arising out of the failure to maintain, repair and renew roads. However, this duty is limited to roads that actually meet the definition as set out in this provision.

Unless subject to judicial review or otherwise overturned, this decision sets a precedent regarding when a road is really a ‘road’ for the purposes of the immunity.

More generally, councils should be conscious of their duty of care to ensure that their acts or omissions with respect to council land do not cause damage to adjoining properties.

For more specific information on any of the material contained in this article please contact Dale Mazzachi on +61 8 8210 1221 or, or Chris Alexandrides on +61 8 8210 1299 or

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