Australian Capital Territory Numbered Acts Australian Capital Territory Numbered Actsinsert
Chapter 4A Liability of public and other authorities
46A Application of ch 4A
(1) This chapter applies in relation to civil liability in tort.
(2) This chapter extends to any such liability even if the damages are sought in an action for breach of contract or any other action.
(3) However, this chapter does not apply to—
(a) a claim to which the Road Transport (General) Act 1999 , part 10 (Compulsory vehicle insurance) applies; or
(b) a claim under the Workers Compensation Act 1951 .
46B Definitions for ch 4A
In this chapter:
"duty of care" means a duty to take reasonable care or to exercise reasonable skill (or both).
"public or other authority" means any of the following:
(a) the Territory;
(b) an administrative unit;
(c) a Territory authority;
(d) an entity prescribed under the regulations for this paragraph;
(e) any entity so far as the entity exercises a function prescribed under the regulations for this paragraph.
46C Principles about resources, responsibilities etc of public or other authorities
The following principles apply in deciding in a proceeding whether a public or other authority has a duty of care or has breached a duty of care:
(a) the functions required to be exercised by the authority are limited by the financial and other resources reasonably available to the authority for exercising the functions;
(b) the general allocation of the resources by the authority is not open to challenge;
(c) the functions required to be exercised by the authority are to be decided by reference to the broad range of its activities (and not only by reference to the matter to which the proceeding relates);
(d) the authority may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceeding relates.
46D Proceedings against public or other authorities based on breach of statutory duty
(1) This section applies to a proceeding based on a claimed breach of a statutory duty by a public or other authority (the defendant authority ) in relation to the exercise of, or a failure to exercise, a function of the defendant authority.
(2) For the proceeding, an act or omission of the defendant authority is a breach of statutory duty only if the act or omission was in the circumstances so unreasonable that no authority having the functions of the defendant authority could properly consider the act or omission to be a reasonable exercise of its functions.
(3) For a function of a public or other authority to prohibit or regulate an activity, this section applies in addition to section 46E.
46E When public or other authority not liable for failure to exercise regulatory functions
(1) A public or other authority is not liable in a proceeding so far as the claim in the proceeding is based on the failure of the authority to exercise, or to consider exercising, a function of the authority to prohibit or regulate an activity if the authority could not have been required to exercise the function in a proceeding begun by the claimant.
(2) Without limiting what is a function to regulate an activity for this section, a function to issue a licence, permit or other authority in relation to an activity, or to register or otherwise authorise a person in relation to an activity, is a function to regulate the activity.
46F Special nonfeasance protection in relation to roads etc
(1) A public or other authority is not liable in a proceeding for harm arising from a failure of the authority to maintain, repair or renew a road, or to consider maintaining, repairing or renewing a road, unless at the time of the claimed failure the authority knew, or ought reasonably to have had known, 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 relation to a risk only because the authority has actual knowledge of the risk; or
(b) to affect any standard of care that would otherwise apply in relation to a risk.
(3) In this section:
"road" means a street, road, lane, cyclepath, footpath or paved area that is open to, or used by, the public.
46G Exercise of function or decision to exercise does not create duty
The fact that a public or other authority exercises or decides to exercise a function does not of itself indicate that the authority is under a duty to exercise the function or that the function should be exercised in particular circumstances or in a particular way.