Posted on April 22, 2024 by Stuart Simington and Samantha Hainke 5

REMINDER: Footpath hazards – when is a Council protected from Liability under the Civil Liability Act?

In a recent decision, the District Court found that a Council was not liable to a plaintiff who had tripped on a raised paver in a park in Redfern. This case is a useful reminder of the various protections councils have against liability, including those afforded to them as a roads authority under the Civil Liability Act 2002 (CL Act). 

On an afternoon jog after work, the plaintiff allegedly tripped on a footpath paver after changing directions to avoid an oncoming cyclist.

S45 of the CL Act

The Council submitted that as a roads authority, it was protected from liability by s45 of the CL Act, which provides that:  

‘A roads authority is not liable in proceedings for civil liability… 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.’

To defeat the protection afforded by s 45, a plaintiff must establish that the roads authority has ‘actual’ knowledge of the ‘particular risk’. Constructive notice is insufficient. 

The phrase ‘particular risk’ has some work to do. While it does not require the authority to know of every detail of the risk, it does require the authority to have specific knowledge of the location and the nature of a particular risk. 

In this case, the Court concluded that the Council did not have ‘actual’ knowledge of the ‘particular risk’ so it could rely upon the defence. 

Liability at Common Law as modified by the CL Act

The Court further found that the Council was also not liable to the plaintiff in negligence as the risk of harm, being the risk of a pedestrian injuring themselves by tripping on the paver height difference of about 25mm or even 50mm was:

• not foreseeable;

• insignificant; and

• a risk that a reasonable council would not have taken any precautions of the kind alleged (or any other precaution) because:

  • the probability of harm was slight;

  • the seriousness of any harm was similarly slight;

  • the burden of lifting the pavers was to be considered in the context of the burden of repairing all similar defects in the council area; and

  • the provision of footpaths generally has social utility.

The Court was of the view that the risk of harm posed by the raised paver was an ‘obvious risk’ within the meaning of the CL Act. The fact that the plaintiff had to navigate an oncoming cyclist did not absolve him from the need to watch where he walked or ran. 

The Court further found that the difference in paver height was not a ‘trap’ that required warning or repair. The difference in the raised paver was one that could be reasonably expected to exist in paved footpaths in the vicinity of street trees.

In the ordinary use of the paved area, the Court considered there to be an expectation that pedestrians will see and negotiate uneven pavers particularly near trees.

The Court re-affirmed the position that pedestrians must watch their step when walking even if they must also have regard to traffic.

S43 of the CL Act

The Court further agreed with the Council’s contention that the failure to carry out the repair work earlier, or place barricades or signage, was not so unreasonable that no reasonable authority could consider the same to be a reasonable exercise of the Roads Act powers.

Relevantly, s43A provides:

(2)  A special statutory power is a power—

(a)  that is conferred by or under a statute, and

(b)  that is of a kind that persons generally are not authorised to exercise without specific statutory authority.

(3)  For the purposes of any such proceedings, any act or omission involving an exercise of, or failure to exercise, a special statutory power does not give rise to civil liability unless the act or omission was in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power.

In this case, the Court found that the plaintiff had not proved that the failure to repair or warn of such a slight difference in paver height was so unreasonable that no reasonable road authority would have done so.

Causation

Even if the Council had not been successful in reliance on the above defences, the Court first found that there was a real possibility that the fall was caused by a nearby tree root rather than the paver, and so concluded the plaintiff’s case failed at the first step.

You can read the decision here: Lee v The Council of the City of Sydney [2024] NSWDC 69

If you have any questions in relation to this post, please contact Stuart Simington on 8235 9704 or Samantha Hainke on 8235 9727.