At approximately 2am, 27 February 2011, Jason Nightingale was walking along Balmoral Street, in Blacktown.

He tripped and fell in a hole between two concrete slabs in the footpath, injuring his right foot and ankle.

Blacktown City Council was sued due to being the authority with responsibility for the care, control, and management of the footpath. It was allegedly negligent due to failing to repair the hole and warning pedestrians.

At the hearing, there was evidence the hole had been in the same state since at least December 2009. Council had carried out footpath and road inspections in the 14 months before Jason’s accident but hadn’t recorded any notes about any other defects.

On 18 September 2014, the judge held s45 of the Civil Liabilities Act 2002 (CLA) applied on the basis of a previous case, North Sydney Council v Roman, and gave judgement in favour of Council. s45 states “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.”

Court of Appeal decision

The majority of appeal judges said North Sydney Council v Roman must be followed because it was both binding and not “plainly wrong”. That is, to avoid s45 “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.”

Two judges disagreed. One considered creating categories of persons, whose knowledge was to be used for s45, should be avoided and each case determined on its facts. The other agreed, saying s45 deliberately didn’t specify those officers whose knowledge was in question.

There wasn’t any basis to infer any of the council officers, from whom evidence was led and whose knowledge was relevant for the North Sydney Council v Roman test, were aware of the hole before Jason’s accident. Jason didn’t establish Council had actual knowledge of the hole.

The alleged negligent inspections were irrelevant in determining if Council could rely on section 45. The immediate cause of the accident was the failure to repair the hole, not a failure to identify its presence during any inspections.

As such, the decision was upheld in favour of Council.

Implications

A claimant must show that a council officer authorised to carry out road repairs is aware of a defect before Council, in its capacity as the roads authority, is deemed to have knowledge of the defect. Should a claimant be unable to do so, they won’t succeed against a council in a claim arising from a failure to carry out roadworks.

To avoid liability in similar cases, councils need to have in place strict processes and procedures to record any knowledge of footpath and road defects; whether originating from their inspections or advice from the public. Failing to have robust defect recording systems in place may leave them exposed to claimants’ interpretation of “actual knowledge of the particular risk the materialisation of which resulted in the harm”, as stated in s45 of the CLA.

The notes pertaining to this case were provided by Mills Oakley.

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