Litchfield Council insurer advised speed limit increase possibly ‘negligent’ with risk of reputational damage

by | May 2, 2022 | News | 0 comments

Litchfield Council’s executive was warned by its insurer that the decision to increase the speed limit on Girraween Rd was possibly “negligent” and recommended a qualified engineer investigate road safety issues, causing council to backflip on the speed limit increase, internal council documents show.

Councillors voted four to three to increase the speed limit from 70 km/h to 80 km/hour on a 2.7km stretch of the road at the Coolalinga end at the December 14, 2021 ordinary meeting, after a 12-month trial at the lower limit, after the Hillier Rd intersection had been upgraded using federal Black Spot funding.

The decision to increase the speed limit was made without any regard to professional advice or community consultation and had the “potential for a damages claim based on negligent setting of speed”, an email from the council’s insurer warned.

Those who voted in favour were then-deputy mayor Mathew Salter, Mark Sidey, Kevin Harlan, and Andrew Mackay. Those who voted against were Mayor Doug Barden, now Deputy Mayor Emma Sharp, and Rachel Wright.

The decision to increase the speed limit was later overturned by the councillors with a fresh “motion without notice” put at the ordinary January 18 council meeting, which imposed a stay on the increase until various issues were resolved, including obtaining a qualified traffic engineer assessment on the risk associated with increasing the speed limit, and to consider the advice from its insurer.

In an email sent on January 6 – 11 days before the decision was overturned – and  released through Freedom of Information laws, the council’s insurer JLT Public Sector NT senior executive James Sheridan told Litchfield operations and environment manager David Jan that he was providing advice which was not formal legal advice, and had forwarded the background and the decision to the NT Councils Discretionary Trust Legal Panel, after speaking to Litchfield infrastructure and operations general manager Leon Kruger prior to Christmas.

“Against the background of numerous accidents, warranting Black Spot funding, and with such works carried out assuming a reduction in the speed limit to 70km/hour would remain, I think the decision is a poor one,” he wrote.

“I can see a coroner being highly critical of the decision. I can see the potential for a damages claim based on negligent setting of speed limit.

“However that sort of claim won’t be easy – there would be some law about not interfering with discretionary decisions on things like speed limits, and any claimant would have to prove that the 10 km/hour increase in limit was the actual cause….

“I am also wondering about the possibility of any criminal exposure, albeit unlikely, but if a bad accident happens, someone from police or otherwise might think to explore that.

“At a lower level someone might consider whether the elected members were actually acting in accordance with their statuary duties…..there might be an argument that duty has been breached by the four who voted in favour of the 80km/hour against clear advice to the contrary.

“The biggest risk however is probably reputational. When the next accident happens someone will ask the question, or make the assertion that council acted badly. And if a serious accident, the chorus will get going strongly.”

Mr Sheridan then suggested the administration get an external, suitably qualified traffic engineer to do a report on the suitability of having an 80km/h speed limit on the road.

 

Mayor Doug Barden did not respond direcly to questions from the NT Independent including who asked Mr Kruger to ask the insurer for advice.

“Litchfield Council is a professional local government authority with sound policy and governance mechanisms in place,” he wrote.

“We strive to represent the interests and values of our community and we understand that council decisions impact our residents and ratepayers.

“Decisions about the speed limit on Girraween Rd were made in accordance with robust procedures that underpin all our decision making.”

When the four councillors voted to increase the speed limit again they did so without external road safety audit, and ignored advice from council staff the Hillier Rd intersection was only designed for 70km/h driving, and overturned the decision the next month.

Chief Executive officer Daniel Fletcher sent a scathing briefing note to councillors on January 11, calling council’s decision “unqualified’, “highly irresponsible”, and “deficient in adhering to good decision‐making principles”.

He said as CEO he had a moral, ethical, and professional obligation to inform the NT Government if decision making of the council had been, or is being, compromised by misconduct or wilful disregard for professional advice – including technical and specialist advice.

“Continued disregard of professional/specialised/expert advice will invariably compromise good governance and good decision‐making principles,” he wrote.

He left the council in March under mysterious circumstances, and Mr Barden will not explain the reasons for his departure.

Mr Fletcher has not responded to questions, including if he did report council to the NT Government. Mr Barden would not confirm whether we was aware Mr Fletcher may have reported the council to government.

Emails between Mr Barden and other councillors show Mr Barden expressing his anger and disappointment over Mr Fletcher’s critical briefing note, and had expressed that to him, as well as seeking advice from an unknown “friend”.

“He told me that this is serious & that I needed to call a special council meeting & sort this out ASAP. Admittedly my friend does not know the detail,” he wrote in an email obtained under FOI laws.

Local Government Minister Chanston Paech also did not respond to questions about whether Mr Fletcher had made a complaint about the councillors or what action was being taken.

Cr Harlan said all inquires needed to be directed to the mayor. None of the other councillors responded to the NT Independent over questions about the vote.

A report prepared for the councillors by Litchfield’s infrastructure and assets manager Rodney Jessup recommended the speed limit remain at 70km/h because the upgraded intersection at Hillier Rd was designed for a 70km/h speed limit and, he said, the reduced speed limit had made the road safer with less crashes.

It is understood the councillors were told this at the meeting and were warned it was dangerous to increase the speed limit.

The report seemed to be based on the findings of a road safety audit done in 2016, when the council was planning to apply for Blackspot funding, along with crash data from the 12 months leading up to the meeting. But the original audit was not provided to councillors.

They were also told when the intersection was designed there was no intent to increase the speed back up to 80km/h, however the idea of 12-month trial at 70 km/h followed by a review was added to the motion for the December 2020 meeting.


Editor’s note: This article has been updated with a response from Mayor Doug Barden.

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