Posted on January 21, 2016 by Anna Sinclair
Civil Liability Act – when is a council protected from liability arising from defects in paths and roads?
A recent decision of the Full Bench of the NSW Court of Appeal has reconsidered the special protection councils (in their capacity as roads authorities) have from liability in relation to road work where they do not have actual knowledge of the particular risk of harm. On the one hand, the decision broadens the range of persons who may be taken to constitute the council with actual knowledge, but on the other held that a negligent inspection regime which fails to identify the particular risk of harm does not negate the special protection.
In Nightingale v Blacktown City Council  NSWCA 423 (Nightingale) the appellant sustained injuries following a fall when he stepped onto a sunken area of footpath. He argued that his injuries were caused by the negligence of the Blacktown City Council (Council) in failing to repair the footpath, adequately illuminate the footpath, warn him of the danger, or barricade the area, and by the Council’s failure to have in place an adequate system of repair and maintenance.
A Council officer had inspected the subject footpath three times per year, by driving along the road, but from his position in the car he did not observe any defect in the footpath.
The trial judge rejected the appellant’s claim and gave judgment for the Council on the basis that Council was immune from liability by reason of s45 of the Civil Liability Act 2002 (Civil Liability Act).
Section 45 of the Civil Liability Act provides a protection for councils in their capacity as “road authorities” against claims of negligence in specific circumstances, and relevantly provides:
(1) A roads authority is not liable in proceedings for civil liability to which this Part applies for harm arising from a failure of the authority to carry out road work, or to consider carrying out road work, unless at the time of the alleged failure the authority had actual knowledge of the particular risk the materialisation of which resulted in the harm. [Emphasis added]
When will a council have “actual knowledge”?
In determining that the Council was protected by s45, the trial judge was bound to apply the earlier decision of the Court of Appeal in North Sydney Council v Roman  NSWCA 27; 69 NSWLR 240 (Roman) in which it had been held, by majority, that for a Council to have the “actual knowledge”, “that actual knowledge must be found in the mind of an officer within the council having delegated (or statutory) authority to carry out the necessary repairs”.
The first issue raised in the appeal was the interpretation of “actual knowledge” in s45 and whether Roman was correct.
The majority in Nightingale (Beazley P, Basten JA and Simpson JA) determined that Roman was clearly wrong on this point and it should not be followed.
In developing a new test, their Honours held that the question of “actual knowledge” must be addressed on a case-by-case basis and any formulation of a category of persons who hold the relevant knowledge for the purposes of s45 should be avoided. The question in each case must be “whether a roads authority had actual knowledge of the particular risk the materialisation of which resulted in the harm suffered by the plaintiff”.
Whether a council officer has the requisite knowledge will depend on the circumstances of a particular case.
As Basten JA said, what is essential is that the officer has actual knowledge of a “particular risk” that may cause harm in a civil liability sense, i.e. knowledge that a surface is “unsafe for pedestrians exercising reasonable care for their own safety” (at ).
It follows that an officer who is required to report to the council on all defects in the road (such as a street sweeper) may still not have knowledge of the particular risk. Conversely, officers charged with the authority to carry out necessary repairs, as well as those charged with the inspection, construction and maintenance of roads and pathways may do.
Nightingale thereby widens the category of council officers who may be considered to have “actual knowledge” of a potential risk on a roadway or pathway for the purposes of s45. This may make it easier for a plaintiff in a negligence claim to challenge the protection granted by s45.
Is a negligent Council still able to rely on the protection?
A further appeal ground argued by the appellant was that the Council had carried out its inspections negligently, and the Council’s liability was therefore not excluded by s45. For the purpose of s45(1), to “carry out road work” relevantly means to carry out any construction, maintenance or inspection activities (s45(3) of the Civil Liability Act).
The majority (Basten JA, Macfarlan JA and Meagher JA) found that s45 of the Civil Liability Act applies because the immediate cause of the appellant’s injury was a failure to repair the footpath.
Basten JA and Meagher JA further held that a construction of s45 by which a roads authority’s negligent inspection would preclude it from relying on the immunity undermines the purpose of the provision and should not be accepted (, ).
In contrast, Simpson JA (in the minority on this point) found that if a failure to repair was the consequence of an prior negligent inspection, the authority would not retain the benefit of the protection and could result in a finding of liability in the Council.
Beazley P was similarly open to the appellant’s argument. However, Her Honour decided that it was not necessary to finally determine the application of s45 to the negligent inspections by road authorities, as in this case, the appellant failed to establish such negligence ( – ).
The variance in approach and rationale between the decisions of the majority and Beazley P and Simpson JA on this point shows that the law is not settled. However, until this question is raised again before the Court of Appeal, lower courts are bound by the finding that councils who negligently carry out inspections of a roadway or pathway, and thereby do not learn of a particular risk, can still rely on the immunity under s45 if that risk later materialises to cause harm to a person.
The judgment can be read here.