By Michael Down, Partner and Melanie Fayad, Lawyer

The case of Ricky Eddy v Goulburn Mulwaree Council & Anor [2021] NSWDC 150 provides an important reminder to consider what is the particular risk of harm that is pleaded, both generally for the purposes of s 5B of the Civil Liability Act 2002 (NSW) (CLA) and in cases subject to s 45 of the CLA.

This case was decided by Justice Strathdee of the District Court at Sydney on 30 April 2021.

The Claim

Mr Eddy alleged, on 27 April 2017, he was walking across a ramp in front of the Centro Centre on Auburn Street, Goulburn (the ramp), when the ramp slipped out from under him, causing him to fall heavily to the ground and suffer injuries primarily to his left knee and back.

The ramp was one of several temporary yellow ramps that had been installed at the direction of Goulburn Mulwaree Council (Council), to allow entry and egress from the Centro Centre while repaving works were being completed.

Mr Eddy commenced proceedings seeking damages from Council as the first defendant and Golden Star Import & Export Pty Ltd (who had contracted with Council to complete the repaving works) as the second defendant.

The “risk of harm” Council allegedly ought to have taken reasonable precautions against was pleaded in Mr Eddy’s Statement of Claim as follows:

“The risk of harm to the Plaintiff was not insignificant in accordance with Section 5B(1)(b) of the Civil Liability Act 2002 in that the ramp was not properly installed or connected and was susceptible to movement which created the risk of the Plaintiff sustaining a physical injury.”

Council, represented by Mills Oakley, denied liability for the claim pursuant to s 45 of the Civil Liability Act 2002, that is, it did not have any actual knowledge of the particular risk the materialisation of which resulted in the alleged harm to Mr Eddy.

On the request of Council, Judge Strathdee decided to determine whether Council could rely on the protection of s 45 of the Civil Liability Act 2002 as a preliminary issue before the commencement of the trial.

Decision and reasoning

Her Honour found s 45 of the Civil Liability Act 2002 was enlivened and Council was entitled to the immunity provided by the section as follows.

S 45 of the Civil Liability Act 2002 required Mr Eddy to prove, on the balance of probabilities, Council was aware of the particular risk the materialisation of which resulted in the harm. This required identification by Mr Eddy of the particular risk of which Council must have had the requisite actual knowledge.

The risk of harm pleaded by Mr Eddy was not that the ramp from which he fell was defective, but that the ramp was “susceptible to movement”. In other words, the movement of the ramp was the risk to which Mr Eddy said he was exposed.

As to whether Council had actual knowledge of the particular risk, as pleaded by Mr Eddy, her Honour considered two notifications to Council on 3 April 2017 and 20 April 2017 (prior to the subject accident) which detailed that the ramps were unsafe for use by people in wheelchairs.

Her Honour had regard to the Court of Appeal judgment in Botany Bay City Council v Latham (2013) 197 LGERA 211 (at [45] – [49]) with respect to the particularly, not generality, of the “particular risk” contemplated by s 45 of the CLA:

“In this case, given the way Ms Latham put her case that a particular paver that was uneven or irregular caused her to trip, the actual knowledge required is actual knowledge of the particular risk posed by the unevenness or irregularity of the very paver that caused her to trip and fall. It would not be sufficient for the Council to know of the more general risk that she might trip and fall on an area of irregular pavers between the tree and the adjacent building, as was contended on her behalf on the appeal.”

Her Honour was not satisfied, on the balance of probabilities, that the two notifications to Council on 3 April 2017 and 20 April 2017 could be construed as giving Council actual knowledge of the particular risk for the following reasons:

• There was not enough evidence to suggest the ramp Mr Eddy fell on was the very same ramp that the previous complaints pertained to.
• Even if it was the same ramp, the notifications could only be construed as giving the Council actual knowledge of the particular risk posed to people in wheelchairs using the ramp, not actual knowledge that the ramp was “susceptible to movement”.

For the reasons above, her Honour entered a verdict and judgment in Council’s favour.

Mr Eddy has filed and Notice of Intention to Appeal, whether an Appeal materialises is yet to be seen.

Although the case may be subject to further consideration by the Courts, it reinforces the importance for a plaintiff to be specific in identifying the risk of harm in pleading his or her case.

The case can be found here.