HEADNOTE
[This headnote is not to be read as part of the judgment]
The appellant fell and was injured when the ramp on which he was walking slipped from under him. The ramp had been placed over repaving work outside a shopping centre. In the weeks before the accident the respondent local council had twice been notified about problems with ramps in the work area where the accident took place. The appellant brought proceedings in the District Court against the Council, which accepted it had had responsibility for the securing of ramps placed in connection with the work.
The Council sought to rely on the immunity in s 45 of the Civil Liability Act 2002 (NSW), which provides that a roads authority is not relevantly liable "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".
The s 45 issue was the subject of a separate determination before the District Court. The primary judge found that s 45 applied for two reasons. The first was that the ramp encountered by the appellant was of a different type to those the subject of the two prior notifications. The evidence was that there were two types of ramps, some smaller and some larger, in use in the area. The second reason was that her Honour was not satisfied that the appellant had proven that the Council was aware of the particular risk which materialised.
The Court of Appeal (per Kirk JA, Bell CJ and Gleeson JA agreeing) allowed the appeal and remitted the matter to the District Court.
On the first issue, the Court held that the second notification made to the Council was in respect of the same kind of ramp as the ramp on which the appellant fell. The Council had actual knowledge of a risk that the smaller ramps which were involved in the incident involving the appellant were unstable unless secured: at [23]-[24] and [34].
On the second issue, the appellant contended that it was sufficient that the Council had actual knowledge that the type of ramp on which he fell was being used in the relevant area, that they could be unstable and dangerous unless secured, and that they were not always secured. The Council contended that the criterion in s 45 was not satisfied because it did not know that the particular ramp, placed wherever it was at the time of the accident, was unsecured.
The Court held as follows:
- The word "particular" in s 45 of the Civil Liability Act is meant to require greater specificity than arises for other references to risk in the Act, such as in ss 5B, 5C, 5F, 5G and 5L, or than arose under the common law principles: at [59].
- What is necessary in applying s 45 is meaningfully to capture the practical reality of the risk which came home. That reflects the provision's purpose, which is to limit liability of roads authorities for liability arising from omissions unless they have actual knowledge of the particular danger, and thus have had some opportunity to respond. Factors likely to be important in this regard include the precision of the road authority's actual knowledge of the location and of the nature of the risk to be found there. It does not require knowledge of every aspect of the precise causal pathway that led to the claimant suffering harm: at [81]-[85].
Botany Bay City Council v Latham (2013) 197 LGERA 211; [2013] NSWCA 363, Collins v Clarence Valley Council (2015) 91 NSWLR 128; [2015] NSWCA 263 and Goondiwindi Regional Council v Tai (2020) 92 MVR 218; [2020] QCA 119 considered.
- The risk of which the Council had actual knowledge here was a very specific risk in a very specific area. It did, therefore, have actual knowledge of the particular risk the materialisation of which resulted in the harm within the meaning of s 45: [89]-[93].