Victorian Numbered Acts Victorian Numbered Acts(1) After Division 1 of Part 6 of the Road Management Act 2004 insert —
This Division applies to any claim for damages resulting from negligence in relation to the performance or non-performance of a road management function, regardless of whether the claim is brought in tort, in contract, under statute or otherwise.
This Division is to be construed as being in addition to and not in derogation of Part XII of the Wrongs Act 1958 .
(1) In determining whether a road authority, infrastructure manager or works manager has a duty of care or has breached a duty of care in respect of the performance of a road management function, a court is to consider the following principles (amongst other relevant things including the principles specified in section 83 of the Wrongs Act 1958 )—
(a) the character of the road and the type of traffic that could reasonably be expected to use the road;
(b) the standard of maintenance and repair appropriate for a road of that character used by traffic of that type;
(c) the state of repair in which a reasonable person would have expected to find a road or infrastructure of that character;
(d) whether the road authority, infrastructure manager or works manager knew, or could reasonably be expected to have known, the condition of the road or infrastructure at the time of the relevant incident;
(e) in the case where the road authority, infrastructure manager or works manager could not have reasonably been expected to repair the road or infrastructure or take other preventative measures before the relevant incident, whether the road authority, infrastructure manager or works manager did display, or could be reasonably expected to have displayed, appropriate warnings.
(2) Sub-section (1) applies to the Mitcham-Frankston Freeway Corporation as if the reference to the principles specified in section 83 of the Wrongs Act 1958 were excluded.
(1) Subject to this section, a road authority is not liable in any proceeding for damages, whether for breach of the statutory duty imposed by section 40 or for negligence, in respect of any alleged failure by the road authority—
(a) to remove a hazard or to repair a defect or deterioration in a road; or
(b) to give warning of a hazard, defect or deterioration in a road.
(2) Sub-section (1) does not apply if, at the time of the alleged failure, the road authority had actual knowledge of the particular risk the materialisation of which resulted in the harm.
(3) For the purposes of sub-section (2), the road authority is to be taken to have had actual knowledge of the particular risk if it is proven in the proceedings that the deterioration in the road had been reported in writing to the road authority under section 115.
(4) This section does not affect any liability of a road authority arising out of a breach of the duty to inspect a public road imposed by section 40.
For the purposes of any proceeding to which this Division applies, an act or omission which is in accordance with a policy—
(a) determined by the relevant road Minister under section 22 does not constitute a wrongful exercise or failure unless the policy is so unreasonable that no Minister in that Minister's position acting reasonably could have made that policy;
(b) determined by the relevant road authority under section 39 does not constitute a wrongful exercise or failure unless the policy is so unreasonable that no road authority in that road authority's position acting reasonably could have made that policy.
Note 1: One of the ways in which a road authority may determine a policy with respect to its road management functions is by a road management plan: see section 52.
Note 2: Section 27 enables a relevant Code of Practice to be used as evidence of the reasonableness of a road management plan.
For the purposes of proceedings relating to a claim arising out of a failure to exercise a road management function, if a person has a duty in relation to a matter and another person has a discretionary power to take remedial action in relation to that matter, only the person with the duty is liable in the proceedings.
Example
If particular infrastructure is not maintained in a safe condition and the relevant infrastructure manager has breached a duty to maintain that infrastructure under clause 6 of Schedule 7, the infrastructure manager would be liable in the proceedings not the coordinating road authority having a discretionary power to require that infrastructure manager to take remedial action.
(1) In any proceeding against a road authority for damages resulting from a failure to maintain a public road it is a defence to prove that the road authority had taken such care as in all the circumstances was reasonably required to ensure that the relevant part of the public road was not dangerous for traffic.
(2) In any proceeding against an infrastructure manager or works manager for damages resulting from a failure to maintain non-road infrastructure it is a defence to prove that the infrastructure manager or works manager had taken such care as in all the circumstances was reasonably required to ensure that the relevant non-road infrastructure was not dangerous for traffic.
(3) For the purposes of the defence referred to in sub-section (1), a road authority is to be taken to have established the defence if the road authority proves to the satisfaction of the court that—
(a) the road authority had a policy which addressed the matter which was a cause of the incident giving rise to the action; and
(b) the road authority complied with the relevant part of the policy.
Note 1: One of the ways in which a road authority may determine a policy with respect to its road management functions is by a road management plan: see section 52.
Note 2: Section 27 enables a relevant Code of Practice to be used as evidence of the reasonableness of a policy or road management plan.
(4) The defence referred to in sub-section (1) or (2) does not prejudice any other defence or the application of the law relating to contributory negligence.
If the issue of the contributory negligence of a person, other than the road authority or an infrastructure manager, is raised in any proceeding relating to a claim of negligence in relation to the performance of a road management function in respect of a road or infrastructure on a road, the court must consider whether any matter specified in section 17A(1) of the Road Safety Act 1986 was a relevant factor.
A road authority does not have a statutory duty or a common law duty to perform road management functions in respect of a public highway which is not a public road or to maintain, inspect or repair the roadside of any public highway (whether or not a public road).
(1) For the avoidance of doubt, it is hereby declared that for the purposes of section 14B of the Wrongs Act 1958 —
(a) a road authority is not an occupier of a road; and
(b) a road is not premises.
(2) This section does not affect any liability arising under the Wrongs Act 1958 in relation to any building on the road reserve.
Despite any Act or rule of law to the contrary, neither the Crown nor a road authority is liable for any damage that may be caused by reason of any public highway not being fenced in or fenced off.
Note: See clause 4 of Schedule 5.
(1) In this section—
"property damages" means any claim for damage to property or for economic loss caused by the condition of a road or infrastructure but does not include any damage or loss arising out of personal injury or death;
Example
Property damages would include a windscreen cracked by a loose stone or damage to a tyre caused by a pothole but would not include damage to a vehicle caused by an unsecured temporary barrier.
"tar damage" means damage to a vehicle caused by tar, asphalt, bitumen or bituminous compounds;
"threshold amount" means the amount of $1000 as varied under section 111 ;
"vehicle" has the same meaning as in the Road Safety Act 1986 .
(2) For the purposes of the definition of "property damages" in sub-section (1), "the condition of a road or infrastructure" does not include machinery, plant, tools or other equipment or materials of a road authority, infrastructure manager or works manager used for the construction, installation or maintenance of roads or infrastructure.
Example
"The condition of a road or infrastructure" would not include graders, excavators, temporary barriers, shovels, stockpiles of gravel or sand and pipes or poles that have not yet been installed.
(3) A road authority is not liable for property damages where the value of the damage is equal to or less than the threshold amount.
(4) The amount which may be recovered against a road authority in a claim for property damages which exceeds the threshold amount is to be reduced by the threshold amount.
(5) A road authority is not liable for tar damage if the road authority has—
(a) closed the road to traffic during works and for a reasonable period after the tar was applied; and
(b) covered the portion of the road to which the tar was applied with gravel or stones or other appropriate material before re-opening the road to traffic.
(6) For the purposes of determining a reasonable period under sub-section (5), regard may be had to—
(a) any relevant Code of Practice;
(b) any relevant road management plan;
(c) any policy;
(d) the matters specified in paragraphs (a) to (e) of section 101(1).
(1) The amount that is to apply for the purposes of section 110 is to be varied, in respect of the financial year beginning on 1 July 2005 and each subsequent financial year, in accordance with the formula—
where—
"A" is the amount referred to in section 110.
"B" is the all groups consumer price index for Melbourne as at 15 June in the preceding financial year last published by the Australian Statistician in respect of the December quarter of that financial year.
"C" is the all groups consumer price index for Melbourne as at 15 June in the year preceding the preceding financial year published by the Australian Statistician in respect of the December quarter preceding that 15 June.
(2) If it is necessary for the purposes of this section to calculate an amount that consists of or includes a fraction of a whole number, the amount is deemed to have been calculated in accordance with this section if the calculation is made—
(a) if the amount is less than $1000, to the nearest whole $1; or
(b) if the amount is $1000 or more, to the nearest whole $10.
(3) If an amount is varied in accordance with this section, section 110 and this section have effect as if a reference to the amount were a reference to the amount as so varied.
(4) If the variation of an amount to which this section applies by operation of this section has the effect of reducing the amount—
(a) the variation is deemed not to have taken effect, except for the purposes of the application of this sub-section; and
(b) when the amount is varied and increased by operation of this section in respect of the next or a subsequent financial year that variation has effect as an increase only to the extent (if any) to which the amount of the increase exceeds the amount of the reduction in respect of a preceding financial year, or that part of such a reduction that has not been set off against a previous increase.
(5) The Minister must cause a notice to be published in the Government Gazette specifying the amount as varied for the purposes of section 110 in respect of the relevant financial year.".
(2) The amendment made to the Road Management Act 2004 by sub-section (1) is in substitution for Divisions 2 and 3 of Part 6 of that Act.