Risk vs community – the trouble with parks, and jetties, and dams…

Risk Matters - Spring 2022

Local governments are community makers, providing the places that create connection and a sense of belonging.

Whether it’s the local community centre used by playgroups, the oval used by the local football or cricket teams, the jetty where kids learn to fish with their grandparents, or the library that hosts the popular Tuesday afternoon Mahjong club – every local government asset contributes to creating a sense of place for
the people who live there.

Our members are keenly aware of this role and its importance
to their ratepayers, local businesses and broader community. Even so, there are substantial risks involved.

There’s a tension that local governments must balance between community amenity and the liability exposures that facilities carry for the local government. Whether it’s existing assets or new facilities being designed, LGIS members need to carefully consider the risks associated with the asset and ensure that reasonable controls are put in place to ensure the community’s safety and reduce their own liability exposure.

The proactive and effective management of assets is crucial to the sustainable delivery of services to meet community needs and aspirations. This includes the maintenance and redevelopment of old and inherited (or ‘gifted’) properties. A documented plan to manage assets is also a key way for local governments to demonstrate provision of reasonable care to users.

In addition there should be a program of regular risk assessments in place which are documented and, if the need for works or controls are identified, this is actioned. 

The regularity of assessments will depend on a variety of contributing factors including the type of asset and the resources available. This is an essential element in satisfying the member’s duty of care towards users of the asset. 

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Where we’ve been

Over 120 people attended the CEO Breakfast or Local Government Risk Forum on Tuesday 6 September 2022, at Crown Perth.
Representatives from across the state — from Port Hedland to Esperance and everywhere in between joined together to network and explore current risk issues for the sector.

Read More »

What does ‘reasonable’ mean in law?

‘Reasonable’ is a term that crops up time, and time again in law. It’s an important concept to understand when considering a local government’s potential liability exposures.

The law of negligence defines that standard as the level of care that a ‘reasonable person’ would exercise in a similar situation. For example: it’s reasonable to expect that any new play equipment installed by a local government meets current Australian standards.

For LGIS members the question is ‘What would a reasonable local government, with similar information and resources, do in this situation?’ Where members document and show a process which demonstrates reasonable care has been taken, liability defences are strengthened.

Local government’s duty of care

Local governments owe a duty of care to neighbouring land owners as well as members of the public to take reasonable care to prevent any sort of loss or injury in respect to their assets.

In case of an accident, common law places the onus of proving negligence on the claimant who has allegedly suffered a loss. In case of a liability claim, the following four points need to be proven for the local government to be held responsible for the negligence: 

  • The claimant has sustained some sort of actual loss, injury or damage
  • The local government owed the claimant a duty of care. 
  • The local government breached the duty of care owed to the claimant.
  • The claimant’s injuries, loss or damage were caused by the local government breach of duty. 

We know that resources are limited and that members strive to provide relevant and well-maintained amenities to their community. Therefore, it is unreasonable to expect that all local governments are in a position to regularly inspect and maintain every public asset such as trees, footpaths, roads and parks within their jurisdiction. 

What should a risk assessment consider?

A program of regular and appropriate risk assessments is a key element in a local government’s tool kit to demonstrate reasonable care.

Ultimately a risk assessment aims to identify all possible risks exposures for the local government and users of an asset – whether they’re using that asset in the way that it’s originally intended or doing something differently. Assessments should be carried out throughout an assets lifecycle from conception to development until end-of-life.

Generally a liability risk assessment should ask the following broad questions:

  • Who is the user? Consider the user and how they may use the facility – try to also consider unintended uses.
  • How is the area accessed? For example is the road or footpath network well maintained or not.
  • Is there proper and appropriate signage for public accessing the area? Have users been made aware of how the asset should be used and the inherent risks involved in its use?
  • Are there sufficient measures in place to ensure child safety in particular (e.g. walls, barricades and railings)?
  • Have we taken recommendations for safety checks into account?

It’s vital that where risks are identified, appropriate steps are taken to implement controls. When determining appropriate controls, consider the hierarchy of controls model which moves from eliminating the hazard to reducing exposure.

Another useful tool when prioritising resources and determining which recommendations will be implemented is the risk probability and impact matrix. In effect the matrix asks the questions ‘How probable that the identified risk will occur?” and “What is the impact if it occurs?”. Members are encouraged to have their own matrix in place to support themselves in their own risk management process. 

Any decision to manage risks (or not) should be documented.vIn the event that a control is not implemented for an identifiedvrisk, rationale should be explained.

New assets – an opportunity to start right

Community needs continue to change and evolve; a decade ago everyone wanted BMX tracks and now there’s a trend for integrated youth precincts which include skate, parkour, basketball courts and many other activity areas. Whatever your new development may be, it provides a perfect opportunity to consider potential risks and the controls that can be put in place.

Risk assessments should be considered for multiple stages of the development process including:

  • Concept development.
  • Design.
  • Build.
  • Completion/handover.

Another opportunity when commissioning new facilities is to include maintenance programs within the contract. Many of the new facilities being developed by WA local governments are complex and have multiple elements and uses, which can make maintenance for the life of the asset challenging. If engaging experts in the design of your asset, they should also be able to provide guidance or even services to facilitate the maintenance and management of your new facility.

Another consideration with new assets is risk transfer. Even with a robust risk management approach you won’t necessarily be able to remove all possible risks. The risks you choose to accept will depend on your risk appetite and your ability to secure risk financing. LGIS can help our members when considering their protections and risk financing options.

Gifted assets – a white elephant in disguise?

Occasionally local governments are offered assets by a third party – they could include a dam from the Water Corporation, a rehabilitated mine site or other state government asset. Before accepting responsibility for a gifted asset, local government should carefully consider the risks and liability exposure that may accompany it.

As with any local government asset, a risk assessment should be completed and management program put in place.

Where the asset is managed and used by more than one organisation, the responsibilities of all parties should be clearly documented and understood. An area where this is common is dams which will remain a part of the Water Corporation’s management program.

Another consideration is whether or not the local government’s use will differ from the facility’s original use. Again, old dams provide a great example of such assets. The surrounding area could hold great potential to be developed as a recreational area but because recreation was unlikely contemplated in its original purpose, the embankments that were designed to capture and retain water may be steep and pose a risk to the public. 

The public’s responsibility

As much as the local government holds a duty of care towards users, the public is equally liable to take care of itself when using government assets like parks, beaches and libraries etc. 

The classic case from 1995, where the claimant had sued the City of Cottesloe for sustaining serious injuries while body surfing at one of the council’s beaches, perfectly explains the community’s duty of care towards itself. 

While body surfing, the claimant was dumped by a wave and crashed into the sand, permanently damaging his spine. He sued the Town for its negligence towards its residents as there was no proper signage warning danger. The judge was not persuaded that had the respondent set up warning signs, the claimant would have refrained from body surfing on the day in question. 

He dismissed the case and pointed out that the very aspects of body-surfing that make it dangerous provide the pleasures and thrills that make it popular. In circumstances like these danger is so obvious that the person involved is responsible for exercising reasonable care for their own safety.

Liability risks managed - how LGIS can help

LGIS Liability assessments are a benefit of LGIS membership. Our experienced risk consultants will visit you on site to assess your assets. We can support members with their assets at any stage whether it’s in development or is an established facility that needs review.

Check out the story on the City of Bunbury’s Youth Precinct (page 7) to see how LGIS can support you in your next development.

More information

For more information on LGIS liability assessments contact our risk team.

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