Bankstown City Council v Zraika

The case of *Bankstown City Council v Zraika* involved a dispute arising from a motor vehicle collision at an intersection. The plaintiff, Mr Zraika, was involved in a collision with Mr and Mrs Walsh. Mr Zraika alleged that Bankstown City Council, as the local planning authority, owed him a duty of care in its function of determining development consent applications, specifically concerning traffic access to the property. The Roads and Maritime Services (RMS) was also involved, with allegations concerning the installation of traffic signals. The matter was heard in the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were whether Bankstown City Council owed a duty of care to Mr Zraika in its regulatory function of determining development consent applications, and whether this function constituted a "special statutory power" for the purposes of section 43A of the *Civil Liability Act 2002* (NSW). Relatedly, the court considered whether the RMS breached a duty of care due to delays in implementing a decision to install traffic signals. The court also had to determine whether Mr Zraika failed to take reasonable care for his own safety and whether any such breach caused the collision.

The Court of Appeal considered the nature of a local council's function in determining development applications and the application of sections 43A and 44 of the *Civil Liability Act 2002* (NSW). The court reasoned that the function of determining development consent applications, while regulatory, did not necessarily give rise to a duty of care in negligence for the purposes of section 44. Furthermore, the court analysed the test for establishing liability under section 43A, which requires the exercise of a special statutory power and that the failure to exercise the power was, in the circumstances, not justifiable. The court ultimately allowed the appeal, setting aside earlier findings and re-answering specific questions regarding liability.

The appeal resulted in the setting aside of certain previous answers and the re-ordering of judgment. Specifically, judgment was entered for the plaintiff against Mr Zraika. The court also ordered that Mr and Mrs Walsh and Mr Zraika pay the costs of Bankstown City Council and the Roads and Maritime Services of the appeal.