(b) to affect any standard of care that would otherwise be applicable in respect of a risk.
(3) In this section:
carry out road work means carry out any activity in connection with the construction, erection, installation, maintenance, inspection, repair, removal or replacement of a road work within the meaning of the Roads Act 1993 .
roads authority has the same meanings as in the Roads Act 1993 ."
177 Two issues initially arise with respect to the application of this provision to the facts of the present case. The first is whether an officer or officers of the Council (in this case Mr Shackleton) had actual knowledge of the particular risk the materialisation of which resulted in the plaintiff's injuries. The second, which only arises if the first question is answered affirmatively, is whether that officer or those officers had delegated (or statutory) authority to carry out the necessary roadwork to eliminate the relevant risk or to consider carrying out such roadwork. That the officer or officers with the relevant "actual knowledge" were required to have that authority follows from the decision of the majority of this Court (Basten and Bryson JJA) in North Sydney Council v Roman [2007] NSWCA 27; (2007) 150 LGERA 419.
178 In the present case it was accepted that Mr Shackleton did not have the authority to either carry out the necessary roadwork or to consider carrying it out and so his knowledge would not be that of the Council for the purposes of s 45(1) if the majority judgments in Roman are to be followed. Accordingly, the plaintiff sought the leave of the Court to argue that Roman should be reconsidered, that the majority judgments should not be followed and that the opinion of the dissenting member of the Court, McColl JA, should be adopted as stating the law. It was due to the proposal to seek such leave that the Court was constituted with a Bench of five judges.
179 Although s 45 is part of a group of 14 provisions of the CL Act pleaded by the Council as a complete defence to the plaintiff's claim, the application of the section was not the subject of submissions by the Council to the primary judge although the fact that it had been pleaded was referred to by the plaintiff in her submissions in reply in an exchange between counsel and her Honour. This notwithstanding, the section was not referred to by her Honour in her reasons and appears to have been overlooked. This is of significance given that it was submitted that the primary judge did not make a finding that Mr Shackleton had actual knowledge of the defective pit. It was thus submitted that her Honour's findings only established constructive knowledge on his part, which was insufficient to displace the exemption from liability provided by s 45(1) irrespective of the correctness of the majority decision in Roman. Accordingly, before any question arises with respect to Roman, the anterior question as to the nature of Mr Shackleton's knowledge of the defects in the pit must be determined.
180 As I have observed, her Honour made no express finding of actual knowledge on the part of Mr Shackleton of the defective pit. The closest she came to such a finding was at [47], where she found that the damaged state of the lid and the fact that there was no visible lip around the top of the pit on which the lid could sit, together with the footpath having been laid right to the edge of the lid, were matters which "would have been plain" to someone such as Mr Shackleton who was looking for hazards in the footpath. However, a finding of what "would" have been visible to someone such as Mr Shackleton is ambiguous and is not necessarily a finding that it was visible in the sense that it could be inferred that he actually saw it.
181 Nevertheless, three other paragraphs of her Honour's reasons may be considered to throw some light on the findings she in fact made. At [50] she found that Mr Shackleton's inspections in the knowledge that the area had roll kerbs "ought to have … alerted him" to the possibility of damage to the pit within the area where vehicles could be expected to drive.
182 Having noted (at [53]) that Mr Shackleton was not called by the Council notwithstanding that it was in a position to do so, her Honour considered that she could therefore more comfortably conclude that a regime of regular inspections and a properly conducted inspection by the Council "would have revealed the damaged state of the pit lid and that there was no visible lip around it". Finally, in [67] her Honour referred to "the failure to detect through inspections that the lid was unsupported at both ends" as materially contributing to the lid rotating when the plaintiff stepped upon it.
183 The foregoing findings do not, in my view, constitute a finding that Mr Shackleton had actual knowledge of the hazard posed by what her Honour referred to as the "obvious absence of a lip supporting the lid". The absence of such a lid would, in any event, only be "obvious" if the pit was carefully inspected and, possibly, if the lid were removed. Be that as it may, her Honour's finding at [53], whether intentionally or not, was couched in the language of constructive knowledge rather than actual knowledge. That this was so is confirmed by her finding at [66] that the Council had a system for the inspection of footpaths, including Telstra pits, to detect hazards to pedestrians and that:
"Had those inspections been properly conducted, the Council would have been alerted to the obvious absence of a lip supporting the lid."
184 Further, the exchange between counsel for the plaintiff and her Honour to which I have referred in [179] above related to the question of imputed knowledge, it being submitted that this Court's decision in Leichhardt Council v Serratore [2005] NSWCA 406 "gave short shrift" to the argument in that case that the council inspectors may have been "stupid" and not noticed the relevant defects. Nevertheless, her Honour recognised that s 45 required actual knowledge.
185 There can be little doubt that the primary judge was cognisant of not only the fact that s 45 required a plaintiff to prove actual knowledge but also that such knowledge could be presumed, in the sense of inferred. She so held in Roman (decided on 16 February 2006) where she was the trial judge, citing (at [33]) Giles JA in Serratore at [14] and [15]. In that case her Honour (at [34]) made a specific finding of actual inferential knowledge on the part of a street sweeper who worked in the relevant area but who was not called to give evidence.
186 The foregoing makes it all the more strange that her Honour did not in the present case apply s 45 in accordance with her approach in Roman some nine months previously. The only explanation is that she either considered that the section was not relied on by the Council as it had not addressed upon it in final submissions, or she simply overlooked it. Whatever be the position, it is clear that her Honour considered that a finding of constructive knowledge on the part of Mr Shackleton was sufficient to render the Council liable for the plaintiff's injuries.
187 In fairness to her Honour and the parties, it should be said that the impact of s 45 at the time of the hearing at first instance (15 September 2006) may not then have been fully appreciated. Although an appeal had been lodged in Roman it was not heard until 10 October 2006 and not decided until 27 February 2007. Her Honour delivered judgment on 30 November 2006. It is, I think, fair to say that it was this Court's decision in Roman that brought s 45 into sharp focus.
188 In the foregoing circumstances I am not prepared to conclude that the primary judge made a finding of no actual knowledge on the part of Mr Shackleton. She simply did not address that issue. Rather than remit the matter for a new trial on this aspect of liability, in my opinion this Court can and should now determine the issue.
189 The plaintiff made the following written submission:
"Admissions by Mr Shackleton suggest it [the footpath] was inspected on a number of occasions after [it was constructed] but prior to the [plaintiff's] accident. Clearly during any adequate inspection the warning signs of a potential problem should have been clear. It must have been obvious that vehicles drove over and parked on the footpath, the one long edge of the pit was not supported by any visible surrounding cement and there was a gap between the lid and the grass. These warning signs should have prompted [the Council] to investigate further and/or to take steps to prevent vehicles driving onto the footpath and further damaging the pit."
190 Reliance was then placed by the plaintiff upon the decision of this Court in Leichhardt Council v Serratore [2005] NSWCA 406 in which Giles JA, with the agreement of Hodgson and Ipp JJA, said:
"14. The appellant said also that, even if it inspected the footpath, inspection which could have brought knowledge of the trip hazard was less than actual knowledge of the trip hazard. …
15. It will often be the case that a plaintiff does not have direct evidence of a road authority's knowledge of the risk. Like all facts, knowledge can be inferred from other facts and if the inference is fairly available and the road authority calls no evidence to rebut it, the Court can comfortably find knowledge."
191 The plaintiff therefore submitted that, fortified by the absence of Mr Shackleton from the witness box, her Honour ought to have inferred, if she had not already done so, that in his capacity as a maintenance inspector whose job it was to inspect the condition of footpaths including the pits and lids of any utility located therein and which presented as an obvious hazard or as a risk to public safety by, in the case of pits and their lids, either being missing or broken, Mr Shackleton had actual knowledge of what her Honour in the present case found to be plain: namely, the damaged state of the lid of the pit and the fact that there was no visible lip around its top on which the lid could sit, together with the footpath having been laid right up to the edge of the lid.
192 Those parts of Mr Shackleton's statement which were admitted into evidence on the tender of Telstra established that it was his usual practice to drive into the street, get out of his car to inspect the footpath and that he recalled carrying out such inspections in Reston Avenue although he could not with certainty state at which inspection he had walked up and down the length of that street.
193 Accordingly if, as her Honour found, it would have been plain to someone such as Mr Shackleton who was looking for hazards in the footpath that the pit was defective, then there was an available inference that he had actual knowledge of the defective state of the pit which in my view gained strength by the Council's failure to call Mr Shackleton in circumstances where, as that part of his statement which was admitted into evidence made clear, he was as at 15 February 2006 (being the date of the statement) still employed by the Council as a maintenance inspector.
194 Although not elaborated upon in oral argument, the Council contended in its written submissions that there was no evidentiary basis for a finding that at any particular time prior to the plaintiff's accident, but long enough for the Council reasonably to have become aware of it, some defective condition of the pit or lid to visual inspection existed. It was thus submitted that her Honour's finding that the defective nature of the pit "would have been plain" to someone like Mr Shackleton who was looking for hazards in the footpath, was unsupported by the evidence.
195 The Council also submitted that no reason existed why Mr Shackleton would lift up the lid to inspect the pit to see if the lid was properly supported for otherwise the lid was sitting flush with the footpath and appeared to be properly supported. In this respect it is to be remembered that the plaintiff herself gave evidence that there was nothing to indicate that there were any problems with the lid to the pit and that there was nothing that caused her to have any concern about the lid before she stepped upon it.
196 To be added to the foregoing evidence of the plaintiff is her Honour's finding (at [54]) that she could not find that a regular regime of inspections would have brought the fact that the side of the pit in the grass verge was missing in parts to the notice of the Council's inspector. Although she found (at [42]) that a layer or collar of cement was not added to support the lid on its grass verge side, the effect of the finding at [54] was that even if that were so, an inspection of the lid of the pit would not have revealed the absence of that added support.
197 Although the plaintiff submitted that if the added cement support had been provided it would have extended out from the lid over the grassed area, the evidence does not support a finding to that effect. In other words, the evidence does not indicate whether, if the wall of the pit on the side of the grass verge had been supported by the addition of a cement collar, the top of that cement would have been visible around the perimeter of the lid: it may well have been beneath the grass which had apparently grown to the edge of the lid. Thus an inspection of the lid would not have revealed one way or the other whether the added cement support within the grass verge had been provided when the footpath was constructed.
198 For that additional reason in my view the plaintiff's attempt to challenge her Honour's refusal to find that a regular regime of inspections would have brought that part of the damaged pit to the notice of the Council should be rejected.
199 The plaintiff nevertheless submitted that her Honour's finding at [54] was directed to the missing side of the pit where it abutted the grass verge rather than to the absence of a cement collar to provide a lip on that side. Her Honour had made a finding that no cement collar was provided but it does not necessarily follow that she was required to find that an inspection of the lid by Mr Shackleton would have revealed that there was no cement collar provided to support the lid on the grass verge side of the pit.
200 As I have indicated, Mr Garofali's evidence did not go so far as to establish that such a cement collar would have been visible if it had been provided. It may well have been constructed below the surface level of the grass verge which then extended over it to be flush with the lid. In these circumstances it is unsurprising that her Honour was only prepared to find (at [47]) that it would have been plain to Mr Shackleton who was looking for hazards in the footpath, that there was no visible lip around the top end of the pit on which the lid could sit and that the footpath had been laid right up to the lid's edge.
201 Her Honour's reference in the same paragraph to the fact that the outward appearance of the pit of itself should have put Mr Shackleton on notice that it was defective, appears to be a reference to the appearance of the lid and the pit as depicted in Exhibit M(4) and, possibly, Exhibits A(1) and A(2).
202 Her Honour may also have been referring to the photographs being part of Exhibit D1-(1). Assuming that the condition of the lid and its surrounds as depicted in those photographs was also their condition at the time of any such inspection, then her Honour's finding (which, in my view, was open to her) was that the general appearance of the lid and its surrounds as depicted in those photographs was such as to put an officer such as Mr Shackleton looking for obvious hazards on notice that the pit was defective or, at least on notice to investigate the pit more closely to ascertain whether its lid was in fact properly supported to ensure its stability for pedestrians using that part of the footpath in which most of the pit was located.
203 Clearly it would have been open to the Council to call Mr Shackleton, to have shown him the photographs to which I have referred and then to have asked him first, whether at the time he carried out any inspection of this section of the footpath, he had observed the pit in the condition in which it appeared in the photographs and, second, whether if he had, he would have regarded the pit and its lid as potentially defective and either reported the matter to Telstra to check and rectify and/or lifted off the lid himself for the purpose of ascertaining whether the lid was in a stable condition.
204 In my opinion, the failure of the Council to call Mr Shackleton to give such evidence enabled her Honour to more comfortably draw the inference at [53] that a regime of regular inspections and a properly conducted inspection by Mr Shackleton would have revealed the damaged state of the pit lid and that there was no visible lip around it and which, in turn, would have caused him to notify Telstra or to take steps to have a barricade placed around the pit so as to prevent pedestrians walking upon its lid until it was repaired.
205 Although as her Honour noted at [52] there was no evidence as to when Mr Shackleton made his last inspection before the accident, or how frequently his inspections occurred, nevertheless that part of his statement which was admitted into evidence established that he did carry out inspections in Reston Avenue from time to time as he worked extensively in the Council's western area which included the suburb of Hebersham. As his statement indicated, he had been a maintenance inspector for that area since 1997 and could generally recall carrying out inspections of that street.
206 In the foregoing circumstances I would conclude that although the primary judge did not in terms of s 45(1) make an express finding that Mr Shackleton had actual knowledge of the damaged pit, the findings she did make were tantamount to such a finding, being one which was clearly available to her. Alternatively, the findings of primary fact made by her Honour in turn made actual knowledge by Mr Shackleton of the defective lid of the pit an available inference which she should have drawn in the absence of Mr Shackleton from the witness box.
207 When one compares the photograph of the pit and its lid at the time of the plaintiff's accident with those of its appearance after its repair, the contrast between the two is such, in my view, as to have justified a finding that Mr Shackleton was aware of the damaged appearance of the pit and its surrounds and, therefore, of the hazard it posed to a pedestrian stepping onto a lid which gave every indication of possible instability.
208 It follows from the foregoing that the plaintiff has established that Mr Shackleton had actual knowledge of the risk of harm posed by the pit and its lid for the purposes of s 45(1).