By Matthew Skelly, Associate
Our team recently acted for Canterbury-Bankstown Council (Council) in a claim for personal injury brought by a plaintiff who claimed she suffered an injury when she tripped and fell on Council’s footpath as a result of a crack which formed next to a Telstra pit.
Council successfully defended the claim relying on the protections afforded to it as a roads authority under section 45 of the Civil Liability Act 2002 (NSW) (CLA). This protection is only available to NSW Councils and the Roads and Maritime Services, and provides a road authority is not liable for any civil liability arising from its failure 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.
Judge Weinstein SC DCJ gave judgment in which he considered:
- Whether Council had breached its duty of care to the plaintiff by failing to repair a crack in the footpath; and
- Even if negligence was established, was Council protected by the application of section 45 of the CLA?
The plaintiff alleged, on 27 February 2016, she tripped and fell on a “crack/gap which had formed between” a Telstra “pit and the surrounding concrete” located within a footpath located on Meredith Street, Bankstown.
The plaintiff alleged Council owed her a duty of care to ensure the footpath was free from hazards and risks to pedestrians traversing it, which Council breached by failing to remove the hazard, warn of it, barricade around it, inspect and/or otherwise deal with the crack before the trip.
THE DECISION AT TRIAL
His Honour found in favour of Council, firstly finding the evidence before the Court, including a photograph of the crack (but which was not supported by expert evidence about the physical properties of the hazard) was insufficient to satisfy the requirements of section 5B of the CLA, finding “the risk of harm was not only not significant, but insignificant”.
His Honour then found, had the risk been “not insignificant” and the section 5B threshold satisfied, Council was not negligent by operation section 45 of the CLA, providing his views on the current state of the law surrounding this protection.
His Honour employed the NSW Court of Appeal decision in Nightingale v Blacktown City Council (2015) 91 NSWLR 556 (relied on by both parties in the proceedings) in support of the Court finding actual knowledge of the specific and particular risk is fundamental to overcome the immunity provided by section 45 of the CLA. As Council had no actual knowledge of the particular risk of harm the protection provided by section 45 of the CLA applied, and the plaintiff’s claim would have failed even in the event negligence had been established by the plaintiff.
The decision has reinforced the current law on the protection afforded by section 45 of the CLA to both to Councils and the Roads and Maritime Serviced as the State’s roads authorities in relation to claims which arise out of injuries sustained on public footpaths and roads.
The decision also confirms photographs, despite having utility in assisting Courts in understanding fact in issue, photographic evidence is not always sufficient establish on the balance of probability, the existence of that fact or matter before the Court. Photographic evidence should, in most cases, be supported by expert or other evidence addressing material issues in dispute before the Court.
El-Kak v Canterbury-Bankstown Council  NSWDC 768
North Sydney Council v Roman  NSWCA 27
Botany Bay City Council v Latham  NSWCA 363
Nightingale v Blacktown City Council (2015) 91 NSWLR 556;  NSWCA 423
Get the latest news insights and articles straight to your inbox, simply enter your details.