Coun­cil in pot­hole stoush

Townsville Bulletin - - News - by Alexis Gill­ham alexis. gill­ham@ townsville­bul­letin. com. au

A TOWNSVILLE man has slammed coun­cil for not pay­ing for car dam­age caused by a pot­hole that had been re­ported to them as dan­ger­ous.

Bur­dell man Justin Beer has a $ 1000 wheel re­pair bill af­ter the in­ci­dent on March 12. He has since re­ceived a letter from coun­cil deny­ing his claim.

But he be­lieves a legal doc­u­ment con­tained i n t he l et­ter ac­tu­ally showed the coun­cil was li­able.

Sec­tion 37 ( 1) of the Civil Li­a­bil­ity Act states a coun­cil is not li­able in legal pro­ceed­ings aris­ing be­cause a road was not re­paired or kept in good con­di­tion.

But sec­tion ( 2) ap­pears to state the in­dem­nity does not ap­ply if the coun­cil had knowl­edge of the road dam­age ‘‘ which re­sulted in the harm’’.

The letter was signed by coun­cil’s cor­po­rate gov­er­nance ex­ec­u­tive man­ager Geral­dine Wood and con­firmed the pot­hole was re­ported on March 9.

A coun­cil spokesman said the road re­pairs were car­ried out as soon as pos­si­ble af­ter a dif­fi­cult post-Cy­clone Yasi clean-up. But Mr Beer is fu­ri­ous. ‘‘ They ac­knowl­edged that it was re­ported on the ninth but they still said that be­cause it was an ex­ces­sive weather time they are al­lowed ‘ X’ amount of days to fix it,’’ he said.

‘‘ I had a meet­ing and I was told to look at the Act which says in nor­mal cir­cum­stances coun­cil has t wo b us i - ness days to fix the road at Mt Low but I don’t care when they fixed it – I hit it on the 12th ( and) they knew about it on the ninth and they still won’t pay up.

‘‘ They said ‘ so we’re sup­posed to fix ev­ery pot­hole in this town in case you run in to it’.

‘‘ He said ‘ you have your own in­surance, we have an in­surance depart­ment in case we have been neg­li­gent’ . . . well this ( the coun­cil letter) states neg­li­gence.’’

Coun­cil said there were a num­ber of parts of the Civil Li­a­bil­ity Act 2003 that were rel­e­vant to the coun­cil’s be­lief that it was not li­able.

But al­though it only mailed Sec­tion 37 to Mr Beer, a spokesman said other sec­tions cleared the coun­cil of blame.

‘‘ In par­tic­u­lar, other parts of the Act ( sec­tions 35 and 36) set out that the coun­cil would only be li­able when there had been a com­pletely un­rea­son­able de­lay in car­ry­ing out the re­pair, and that’s not the case here,’’ the spokesman said.

‘‘ Mr Beer was ad­vised that coun­cil did not ac­cept li­a­bil­ity for the dam­age but he could lodge a claim through his in­sur­ers or lawyer which would be passed on to the coun­cil’s in­sur­ers.’’

Justin Beer

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