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[2026] NSWCA 51
respondent. Appeal dismissed. The appellant, Orange City Council, was ordered to pay the respondent’s costs ([96]).
The Council appealed after the District Court found it negligent for leaving a concealed hole in a grass verge. The Court of Appeal accepted that the trial judge could find the Council had been told the sign had fallen and that the sign’s fall left a hole. That knowledge defeated the Council’s s 45 argument on the factual findings. The Court also said, if required to decide the point, the hole-filling work was connected with the traffic control sign and was not road work for s 45 purposes. The ordinary steps that could have made the hole safe did not require a special statutory power under s 43A. The appeal was dismissed.
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2,371 words · generated 08/10/2026
Orange City Council appealed a District Court judgment finding it negligent after Peter Willis tripped on a concealed hole in a grass verge in Byng Street, Orange, on 9 July 2020. The hole was where a Council parking sign had previously been installed. The sign had come out of the ground, with concrete still attached, and was later removed. The primary judge found that the hole was not filled, covered, or marked, and that grass had grown over it by the time Mr Willis fell ([2], [16]).
The appeal was limited to liability. The District Court had awarded Mr Willis $133,751, but damages were not challenged in the appeal ([4], [24]–[25]). The Council contested three factual findings: that Mr Penhall had called the Council about the fallen sign, that the report conveyed that a hole had been left, and that the Council removed the sign ([26], [30]). The Council also challenged the negligence finding and invoked ss 45 and 43A of the Civil Liability Act 2002 (NSW) ([26]).
The factual evidence included Mr Ostini’s account of what Mr Penhall had told him, evidence that the sign was lying on the verge with concrete attached, and evidence that the Council could not reliably trace signs brought to its depot. The trial judge accepted Mr Ostini’s evidence that Mr Penhall reported the issue. The Court of Appeal stressed that the trial judge saw and heard the witnesses, and concluded that the challenged findings were open on the evidence ([53]–[71]).
The appeal was dismissed, with the Council ordered to pay Mr Willis’s costs ([96]).
The central issue was whether the Council could displace the trial judge’s findings about the report and the Council’s knowledge. Payne JA applied established appellate restraint principles. Findings dependent on witness credibility and reliability, including secondary facts based on impressions and inferences, are matters where the trial judge has an advantage ([50]–[54]). The Council’s counsel accepted that the trial judge could assess tone and other features not fully conveyed by a transcript ([54]).
The Court did not treat the lack of a written record as decisive. The primary judge had found that Mr Penhall’s report was oral and that oral complaints were sometimes not recorded ([56]–[57]). There was also evidence that Ms McPherson might have received a call and might not have recorded it ([64]). More importantly, the Court considered the evidence as a whole. Mr Ostini said Mr Penhall had spoken to the Council about getting the sign removed and fixing the hole. Mr Ostini was accepted as a reliable witness, and the trial judge had described him as “absolutely certain” about the report ([61], [63]).
The physical and circumstantial evidence reinforced the findings. The sign was observed on the ground with concrete attached; the Council understood signs were fixed in the ground with concrete; and photographs provided by the Council showed the kind of hole left when a sign was pulled out ([60], [68]–[70]). The Court concluded that a report that the sign had come out of the ground logically conveyed the existence of the hole ([67]–[70]). It also accepted the inference that the Council removed the sign shortly after the complaint, a conclusion the appellant’s counsel accepted was open if a report had been made ([65]).
The negligence challenge fell with the factual challenge. The Council accepted that if the actual-knowledge findings stood, its challenge to the negligence finding could not succeed ([72]–[74]). The primary judge had found that the hole presented a foreseeable and not insignificant risk, that precautions were inexpensive and quick, and that the Council was responsible for the verge ([17]–[20]). The Court of Appeal did not conduct a separate reconsideration of those findings after the decisive factual challenge failed.
For s 45, the Council accepted that it could not succeed if the actual-knowledge findings remained. Section 45 provides qualified protection for a roads authority in relation to failure to carry out or consider road work, unless the authority had actual knowledge of the particular risk ([75], [78]). The Court also addressed the requirement that relevant knowledge exist in an officer responsible for mitigating the harm. It concluded that such knowledge existed in an officer able to cause the Council to collect the sign, and that the hole would have been apparent when the sign with its concrete bulb was collected ([76]–[77]).
For s 43A, the Court’s primary reason for dismissing the Council’s ground was that the factual findings of actual knowledge stood, as the Council had accepted its argument depended on reversing them ([91]). The Court then gave an alternative analysis. The identified precautions included filling the hole, applying contrasting paint, or putting a cone or cover over it. Those actions did not require the exercise of a statutory power. Nor were they powers that members of the public generally could not exercise without specific statutory authority ([92]–[95]).
The judgment applies, rather than purports to replace, existing principles. For appellate review, it relies on Fox v Percy and Lee v Lee for the importance of restraint where findings are affected by credibility and reliability assessments ([50]–[51]). It also refers to Davey v Want and J and E Vella Pty Ltd v Hobson when describing the trial judge’s advantage from observing the witnesses and the trial as it unfolded ([52]).
On roads authority non-feasance, s 45’s statutory wording was central. It protects against liability for harm arising from failure to carry out, or consider carrying out, road work unless the authority had actual knowledge of the particular risk. The judgment treats the statutory threshold as requiring actual knowledge of the specific hole-related risk, not merely general awareness that signs can fall or that a verge exists ([75]–[78]). It also applies North Sydney Council v Roman on the need for the relevant knowledge to exist in an officer responsible for exercising the authority’s power to mitigate the harm ([76]–[77]).
The judgment’s alternative analysis of the meaning of road work is significant but expressly conditional. Section 45 defines “carry out road work” by reference to activity connected with listed work on a “road work” under the Roads Act. The Roads Act definition excludes a traffic control facility, and the parties agreed that the parking sign was such a facility ([81]–[84]). The Court considered the connection between removing the sign and filling the resulting hole, and concluded that remediation was traffic control work, not road work for the purpose of s 45 ([86]–[88]).
For s 43A, the judgment applies the two-stage approach described in Curtis v Harden Shire Council: identify whether liability is based on exercising a statutory power, then determine whether the power is a special statutory power ([92]). The Court’s alternative reasoning treats ordinary actions to remove a trip hazard as precautions not dependent on a special Roads Act power ([93]–[95]).
The decision’s practical doctrinal contribution is therefore fact-sensitive. It demonstrates how a court may infer actual knowledge from oral reporting, surrounding circumstances, physical evidence and subsequent events, while applying appellate restraint to findings made after a trial. It does not establish that every report about a fallen sign necessarily proves knowledge of a particular hazard; the finding here depended on the trial evidence and the inferences the Court considered open.
At [50], the Court explains that appellate restraint applies particularly to factual findings influenced by the trial judge’s assessment of witnesses. In plain English, an appeal court does not simply reassess credibility from a written transcript as if it had heard the witnesses itself.
At [61], Payne JA says he was impressed by Mr Ostini’s honesty and clarity and notes the primary judge’s advantage in observing him. The significance is that the Court’s conclusion was not based only on the words recorded in the transcript; it also respected the trial judge’s direct assessment.
At [67]–[70], the Court explains why the report about a sign coming out of the ground conveyed that a hole remained. The sign had been embedded with concrete, there was concrete attached when it was seen on the ground, and the Council had evidence showing the type of hole left by a pulled-out sign. In plain language, the Court considered the hole a logical and evident consequence of the sign’s removal.
At [77], Payne JA states that the relevant knowledge existed in an officer responsible for mitigating the risk by causing the Council to collect the sign. The point is that, on these findings, knowledge was not merely somewhere in the organisation without a connection to action. The Court identified an officer capable of initiating the Council’s response.
At [87], the Court describes work to address the hole as an activity connected with the traffic control facility because the need for that work arose from removal of the sign. In plain English, filling the hole was treated as part of dealing with the sign’s removal, rather than as a separate road-maintenance task.
At [93]–[94], the Court explains that filling the hole or putting paint or a cone over it did not require special statutory authority. The Court’s reasoning distinguishes practical hazard precautions from activities that only a public authority could lawfully undertake under a specific statutory power.
The most direct setting is a claim about injury from a hazard left after a local authority asset, particularly a traffic control sign, has fallen or been removed. The judgment is relevant where the claimant alleges that the authority knew about the hazard before the injury, but the evidence of notice is oral, imperfectly remembered, or absent from formal records ([56]–[64]).
The decision also matters where a party asks an appellate court to overturn factual findings based on oral testimony. The Court relied on the trial judge’s opportunity to assess witnesses, and on evidence considered cumulatively rather than in isolation ([50]–[54], [59]–[70]). The facts supporting the finding here included an accepted witness account, an earlier report, a short interval before the sign disappeared, concrete attached to the sign, and the Council’s own photographs of the resulting hole.
The s 45 analysis may be relevant where the defendant is a roads authority and argues that the alleged omission was a failure to carry out road work. The judgment separates two questions: whether the authority had actual knowledge of the particular risk, and whether the work that would have addressed that risk falls within the statutory definition of road work ([75]–[88]). Its treatment of remediation after removal of a traffic control facility is explicitly an alternative conclusion, not necessary to the orders.
The s 43A discussion may be relevant where a public authority says the alleged omission involved failure to exercise a special statutory power. The judgment indicates that the analysis should identify the particular precautions alleged and ask whether those precautions require statutory authority, rather than assuming that any work by a public authority necessarily involves exercise of a special power ([92]–[95]).
The judgment does not decide all possible forms of notice or all kinds of roadside hazards. Its conclusions depend on the specific evidence and statutory definitions considered in this appeal.
The judgment was decided on 14 April 2026, and the text supplied here does not identify any later court treatment of Orange City Council v Willis. It would therefore be unsupported to say that another court has followed, distinguished, or applied this decision.
The judgment itself explains its relationship with earlier authorities. It applies Fox v Percy, Lee v Lee, Davey v Want and J and E Vella Pty Ltd v Hobson in its discussion of appellate restraint and trial-level advantages ([50]–[54]). It applies North Sydney Council v Roman to the relevant knowledge requirement under s 45 ([76]). It cites Colavon Pty Ltd v Bellingen Shire Council and Collins v Clarence Valley Council (No 3) for the proposition that a traffic control facility is not road work under the Roads Act definition ([84]). It uses Grain Growers Ltd v Chief Commissioner of State Revenue (NSW) in considering the context-sensitive meaning of “in connection with” ([85]–[87]). Finally, it applies the two-stage s 43A approach from Curtis v Harden Shire Council ([92]).
For research purposes, the alternative conclusions at [79]–[88] and [92]–[95] should be distinguished from the factual basis necessary to dismiss the appeal. The Court expressly introduced both sets of conclusions on the basis that it would decide them “if it were necessary”. The operative result also rested on the failure of the factual challenge and the Council’s concessions about the consequences if those findings stood ([71]–[78], [91]).
The Court did not need to decide whether the hole-remediation work fell outside “road work” because the Council accepted that it could not obtain s 45 protection if the actual-knowledge findings stood. Its discussion of the notice of contention is therefore an alternative conclusion ([78]–[89]). The relationship between different kinds of follow-up work and the statutory categories may depend on the precise asset, the source of the hazard, and the relevant Roads Act definitions.
The judgment found that actual knowledge was established through the report and related circumstances, but it does not set out a general rule about how specific a report must be in every case. Here, the sign’s concrete footing, the report that it had come out of the ground, and the evidence about the resulting hole supported the inference that the Council knew of the particular risk ([62], [67]–[70]). Different physical circumstances or a less informative report could require different factual findings.
The Court also did not need to decide s 43A as the basis for the appeal’s outcome. Its alternative analysis addresses the particular precautions identified in the evidence, including filling, marking, or covering the hole ([93]–[95]). Questions about other types of authority action, or precautions that do require statutory powers, are not resolved by this judgment.
Finally, the decision does not determine how later courts will treat its reasoning. Any assessment of later treatment requires subsequent judgments not contained in the supplied text.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Orange City Council v Willis [2026] NSWCA 51
Hearing dates: 17 March 2026
Date of orders: 14 April 2026
Decision date: 14 April 2026
Before: Bell CJ; Payne JA; Stern JA
Decision: (1) Appeal dismissed.
(2) Appellant to pay the respondent’s costs.
Catchwords: APPEALS — appeal from findings of fact — whether the primary judge erred in finding the Council had actual knowledge of the risk which caused the harm — whether knowledge of particular class of Council persons required – whether the primary judge erred in failing to find the liability arose from road works for the purpose of s 45 of the Civil Liability Act 2002 (NSW) — whether the primary judge erred in failing to find that the claim relied on the exercise of a special statutory power for the purposes of s 43A of the Civil Liability Act — no error in any findings of fact
APPEALS — TORTS — negligence — personal injury — application of the Civil Liability Act 2002 (NSW) — whether s 45 Civil Liability Act is applicable — whether the address of the risk that caused harm was ‘carrying out road work’ for the purposes of s 45 — whether s 43A Civil Liability Act applicable — whether special statutory power was exercised for the purposes of s 43A
Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B, 5D, 43A, 45
District Court Act 1973 (NSW), s 127
Roads Act 1993 (NSW), ss 7, 71, 138, Dictionary
Supreme Court Act 1970 (NSW), s 75A
Cases Cited: Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49
Colavon Pty Ltd v Bellingen Shire Council [2008] NSWCA 355
Collins v Clarence Valley Council (No 3) [2013] NSWSC 1682
Curtis v Harden Shire Council (2014) 88 NSWLR 10; [2014] NSWCA 314
Davey v Want [2026] NSWCA 12
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Grain Growers Ltd v Chief Commissioner of State Revenue (NSW) (2016) 93 NSWLR 415; [2016] NSWCA 359
J and E Vella Pty Ltd v Hobson [2023] NSWCA 234
Kuru v State of New South Wales (2008) 236 CLR 1; [2008] HCA 26
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
Nightingale v Blacktown City Council (2015) 91 NSWLR 556; [2015] NSWCA 423
North Sydney Council v Roman (2007) 69 NSWLR 240; [2007] NSWCA 27
Willis v Orange City Council [2025] NSWDC 208
Texts Cited: Perry Herzfeld and Thomas Prince, Interpretation (3rd ed, 2024, Thomson Reuters)
Category: Principal judgment
Parties: Orange City Council ABN 85985402386 (Appellant)
Peter Warren Willis (Respondent)
Representation: Counsel:
D A Priestley SC (Appellant)
P J Macarounas (Respondent)
Solicitors:
McCulloch & Buggy Lawyers (Appellant)
Cultivate Legal (Respondent)
File Number(s): 2025/00242124
Publication restriction: None
[This headnote is not to be read as part of the judgment]
On 9 July 2020, Mr Peter Willis tripped on a hole in a grass verge where a parking sign had originally been installed but had been removed, leaving the hole. Mr Willis was injured in the fall. Orange City Council was the local government authority which had control over and responsibility for the road, the footpath, and the grass verge.
On 4 July 2023, Mr Willis sued the Council in the District Court, alleging negligence pursuant to the Civil Liability Act 2002 (NSW). The Council disputed the existence of a duty of care and raised defences against any purported breach pursuant to ss 43A and 45 of the same Act*.* On 12 June 2025, the primary judge held that the Council was negligent and that by reason of the Council’s knowledge of the existence of the hole, further issues concerning the application of ss 45 and 43A were not necessary to determine.
The Council appealed on seven grounds:
(1) The primary judge erred in finding as a fact that:
(a) A local business proprietor (a Mr Penhall) rang the Council and reported that the sign had come out of the ground and was lying on the ground.
(b) The report by Mr Penhall that a Council sign was lying on the ground logically also informed the Council that there was a hole created in the grass verge.
(c) It was the Council who took the fallen sign away.
(2) The primary judge erred in finding that the Council was negligent.
(3) The primary judge erred in failing to find that the liability alleged by Mr Willis arose from a failure of the Council, as a roads authority, to carry out “road work”, for the purposes of s 45 of the Civil Liability Act.
(4) The primary judge erred in finding that the Council had actual knowledge of the particular risk the materialisation of which resulted in the harm.
(5) In the circumstances, the primary judge should have held that the Council was immune from liability for Mr Willis’ claim, pursuant to s 45(1) of the Civil Liability Act.
(6) The primary judge erred in failing to find that Mr Willis’ claim relied upon an omission by the Council which involved a failure to exercise a special statutory power, for the purposes of s 43A of the Civil Liability Act.
(7) In the circumstances, the primary judge should have held that the Council was not liable to Mr Willis, because the omission relied upon was not so unreasonable that no authority having the special statutory power in question could properly consider the omission to be a reasonable failure to exercise its power.
Mr Willis filed a notice of contention that the primary judge ought to have found that s 45 of the Civil Liability Act did not apply to Mr Willis’ claim on the basis that the failure alleged was not a failure to “carry out road work”.
The Court (Payne JA, Bell CJ and Stern JA agreeing) held, dismissing the appeal:
G**round 1 of the Council’s appeal:
(1) The challenged findings of fact were supported by evidence by witnesses who the primary judge saw and accepted: [54], [55], [60], [61]. The appellant’s challenge to the findings of fact fails: [71].
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22; Lee v Lee (2019) 266 CLR 129; [2019] HCA 28; Davey v Want [2026] NSWCA 12; J and E Vella Pty Ltd v Hobson [2023] NSWCA 234, applied.
G**round 2 of the Council’s appeal:
(2) The primary judge did not err in finding that the Council was negligent: [72], [74].
G**rounds 3–5 of the Council’s appeal, and the notice of contention:
(3) The Council could not succeed under s 45 of the Civil Liability Act, as the Council could not overturn the factual findings of actual knowledge of the particular risk the subject of ground 1 of the appeal: [78].
(4) If it were necessary to decide, the respondent’s notice of contention relating to s 45 of the Civil Liability Act would be upheld. Once the sign was removed, work to remediate the area was not “road work” as it was “traffic control work” under the Roads Act because it was an “activity in connection with” the sign’s removal or replacement: [79], [87]-[88].
North Sydney Council v Roman (2007) 69 NSWLR 240; [2007] NSWCA 27; Grain Growers Ltd v Chief Commissioner of State Revenue (NSW) (2016) 93 NSWLR 415; [2016] NSWCA 359, applied.
Colavon Pty Ltd v Bellingen Shire Council [2008] NSWCA 355; Collins v Clarence Valley Council (No 3) [2013] NSWSC 1682, cited.
G**rounds 6 and 7 of the Council’s appeal:
(5) The Council could not succeed under s 43A of the Civil Liability Act, as the Council could not overturn the factual findings of actual knowledge of the particular risk the subject of ground 1 of the appeal: [91].
(6) If it were necessary to decide, the Council would fail on both limbs of s 43A of the Civil Liability Act. None of the precautions to protect against the risk of harm would have required the exercise of a statutory power. A member of the public would be able to protect against the risk of the hole without any specific statutory authority, and there was evidence that a member of the public had been maintaining the grass verge in this case: [93]-[95].
C**urtis v Harden Shire Council (2014) 88 NSWLR 10; [2014] NSWCA 314, applied.
BELL CJ: I agree with Payne JA.
PAYNE JA: On 9 July 2020, the respondent, Mr Peter Willis was walking in Byng Street in Orange, when he tripped on a hole in the grass verge between the footpath and the kerb. A parking sign had been installed in the grass verge many years before, but it had been removed, leaving the hole. The hole was not apparent, as grass had grown over it following the removal of the sign. Mr Willis put out his arms to break his fall. He injured his right shoulder. The appellant, Orange City Council (the “Council”) was the local government authority in the city. It had control over and responsibility for the road, the footpath, and the grass verge in Byng Street.
On 4 July 2023, the respondent filed a Statement of Claim in the District Court, alleging negligence and seeking damages. The Council disputed the existence of any duty of care, and any breach of duty. The Council also raised “defences” pursuant to ss 43A and 45 of the Civil Liability Act 2002 (NSW). The proceedings were heard by Russell SC DCJ on 19, 20, 21 and 24 March 2025.
On 12 June 2025, the primary judge delivered reasons for making the following orders (Willis v Orange City Council [2025] NSWDC 208):
“[192] The orders of the court are:
(1) Judgment for the [respondent, Mr Willis] against the [appellant, the Council] for $133,751.
(2) Order the [appellant, the Council] to pay the costs of the [respondent, Mr Willis].”
The primary judge found that a parking sign fixed to a pole was placed at some time in the past by the Council on a grass verge in Byng Street near a coffee shop called “Coco’s” using the standard practice of digging a hole 600mm deep and 300mm wide and filling the hole with 20kg of rapid set concrete.
Important evidence was given by two shop proprietors whose premises were close to the place where the parking sign had been installed.
The first, Ms Rachel Bastik, was the owner of Coco’s café, which was situated close to where the respondent fell. The primary judge accepted Ms Bastik’s evidence that she saw a parking sign attached to a pole with a “concrete ball” on the other end of the pole lying on the grass verge on Byng Street, Orange. [1] The parking sign laid there during the Christmas/New Year shutdown period in 2019–2020 “for a short time” before it was removed. His Honour found that Ms Susan Noon, who was employed by Ms Bastik as a cook, had fallen into a hole in the grass verge during the period the parking sign was lying on the grass verge. In cross-examination, Ms Bastik said that she did not look for the hole but assumed that the hole was there because she saw that the sign (with a concrete ball attached on the end) was out of the ground.
The second important witness was Mr Craig Ostini, a funeral director and manager of a funeral home in William Street (near the intersection with Byng Street where the parking sign had been erected). The business was formerly operated by Mr Norman Penhall together with Mr Ostini. Mr Penhall had passed away prior to the trial. Although Senior Counsel for the appellant originally objected to Mr Ostini giving evidence of what he heard Mr Penhall say, that objection was withdrawn by the time the evidence was concluded. Mr Ostini gave evidence in chief that Mr Penhall had said “he had spoken to council and getting them to get rid of the sign, or to let them know the sign was out”. In cross-examination, Mr Ostini was adamant that he was told by Mr Penhall that “he had spoken to council to get them to remove the sign and fix the hole” (emphasis added). His Honour found that Mr Ostini was “absolutely certain” about his evidence concerning Mr Penhall reporting the matter to Council.
The primary judge accepted the evidence of Mr Ostini and, in particular, his evidence that Mr Penhall was “not a person to let Council issues go through to the keeper… he had an invariable practice of referring matters to the Council when he noticed them”.
The primary judge found, based on witness testimony and satellite image maps, that the parking sign was out of the ground and lying on the grass verge between about 20 December 2019 and 3 January 2020. The primary judge found that the fallen sign was removed from Byng Street within a short period of time after Mr Penhall made his complaint to the Council about the sign. His Honour concluded that it was the Council which took the fallen sign away.
“[151] I make the following findings of fact:
(1) For many years prior to early 2020 there was a parking sign erected in Byng Street, Orange, east of the intersection with William Street.
(2) The parking sign was close to the kerb in Byng Street and was situated on the grass verge between the kerb and the footpath in Byng Street.
(3) For many years the sign was loose in the ground, and photographs show it leaning one way and then another.
(4) Leaning signs were not uncommon, and were only regarded by the Council as a hazard if they were leaning over the roadway or towards a footpath, where a pedestrian might come into contact with them.
(5) If Council employees noticed a leaning sign, then the signs team would take steps to straighten the sign and fix it into the ground with additional concrete.
(6) Between 20 December 2019 and 3 January 2020 the parking sign came out of the ground and was lying in the vicinity of its original location.
(7) There was concrete still attached to the pole of the parking sign, and there was a hole in the grass verge where the sign had come out of the ground.
(8) Ms Noon fell into the hole on a day between 20 December 2019 and 3 January 2020
(9) Ms Bastik saw the parking sign lying on the ground in that time period.
(10) Ms Ostini saw the parking sign lying on the ground in that time period.
(11) Mr Norman Penhall rang the Council and reported that the sign had come out of the ground and was lying on the ground.
(12) The report made by Mr Penhall was an oral report and was not recorded in the written records kept by the Council.
(13) There were occasions when oral reports were not recorded in writing.
(14) The report by Mr Penhall that a Council sign was lying on the ground logically also informed the Council that there was a hole created in the grass verge.
(15) Mr Penhall told Mr Jaeger that he should be careful when mowing the lawn as there was a hole in the ground left by the sign.
(16) Ms Bastik recalled the sign remaining on the ground just a short time before it was removed.
(17) Mr Ostini recalled the sign lying on the ground for a day or two or three.
(18) The fallen sign was removed from Byng Street within a short period of time after Mr Penhall made his call to the Council.
(19) I infer, because of this sequence of events, that it was the Council who took the fallen sign away. Removal occurred very shortly after Mr Penhall made his report to the Council.
(20) There was no replacement sign erected after the report made by Mr Penhall and before the July 2020 incident.
(21) There was no step taken by the Council to fill in or cover the hole or warn pedestrians of its presence.
(22) By July 2020 the hole in the grass verge was not obvious or visible, as grass had grown over it.
(23) The hole in the grass verge was still there on 9 July 2020, when Mr Willis tripped on the hole and fell forward, injuring his right shoulder.
(24) After Mr Willis had his fall he made an oral report to the Council which was later confirmed in writing.
(25) After the report of the fall and injury made by Mr Willis, the signs team, being Mr Whitton and Mr Costello, went to Byng Street to install a new sign.
(26) Mr Whitton and Mr Costello could not find a hole in the grass verge, so they dug a new hole and installed a new sign in approximately the same location as the old sign.
(27) A hole in a grass verge, particularly one covered by grass, was regarded by Council employees as a hazard which should have been reported and fixed.
(28) Available steps to guard against such a hazard included: filling the hole in with dirt; marking the area with spray paint; installing witches hats around the hole; installing a pit lid over the hole; or putting up poles and tapes around the hole.
(29) The cost to take any of those steps was minimal and the time required for any of those steps was negligible.
(30) Council signs were not regarded in 2020 as an asset which required regular inspection.
(31) Council did have a program for inspecting roadways every two years and footpaths every 18 months.
(32) Any person inspecting a roadway was concentrating on the trafficable road surface and was not particularly looking for problems off the road.
(33) Any inspector of a footpath was primarily concerned with inspecting the concrete footpath.
(34) If any footpath inspector noticed a problem adjacent to the footpath, for example in the grass verge, that would be reported.
(35) While Council employees regularly drove along Byng Street to the Council depot or the Council chambers, they were not looking for problems at the side of the road and none were noticed by the witnesses who were called.”
On the question of liability, the primary judge considered that the relevant risk of harm was the hole in the grass verge that Mr Willis tripped on. The parties on the appeal accepted this as the correct identification of the risk of harm. The primary judge found that the risk of harm was foreseeable. Section 5B(1)(a) of the C**ivil L**iability A**ct was therefore satisfied.
The primary judge found that the “risk posed by a hole in the grass verge, which became covered by grass and which became invisible, created a risk which was not insignificant.” The primary judge also referred to the evidence that somebody had already tripped in the hole long before Mr Willis did — that is, Ms Noon. Section 5B(1)(b) of the C**ivil L**iability A**ct was thus satisfied.
Having regard to the factors in s 5B(2) of the C**ivil Liability A**ct, the primary judge held:
“[162] Having regard to the factors listed in s 5B(2) of the CLA, I make the following findings:
(1) There was a significant risk or probability that harm would occur if care were not taken – s 5B(2)(a) of the CLA.
(2) Serious harm could result from a failure to take precautions – s 5B(2)(b) of the CLA.
(3) The burden of taking precautions to avoid the risk of harm was minimal – s 5B(2)(c) of the CLA.
(4) The Council had responsibility for the grass verge, which was used by pedestrians to traverse from cars to the footpath or the road. It was made available by the Council for all members of the public to use – s 5B(2)(d) of the CLA.
[163] I find that a reasonable person in the position of the Council would have taken precautions to guard against the risk of harm posed by the concealed hole. The grass verge was available for pedestrians to walk upon it, and this being a commercial area, on a relatively busy street, one could expect that vehicles would be parked and the occupants of those vehicles would be walking to or from their vehicle across the grass verge. There was a significant foreseeable risk that harm would occur if reasonable precautions were not taken to guard against the risk of harm created by the concealed unguarded hole.”
The primary judge found that the appellant was negligent, taking into account the general principles set out in s 5B of the C**ivil Liability A**ct.
The primary judge found that s 5D(1)(b) of the C**ivil L**iability A**ct was satisfied. Factual causation was established by the appellant’s negligence in failing to take appropriate steps to fill in the hole, or to warn pedestrians of the existence of the hole. This was a necessary condition of the occurrence of the harm. The scope of the appellant’s liability extended to the harm so caused. The appellant was the local government authority responsible for the land where the incident occurred.
As to s 45 of the Civil Liability Act, after setting out the text of the section, the primary judge reasoned:
“[171] The Defence filed for the Council pleaded s 45. The response to this by counsel for the plaintiff was to argue that s 45 had no application, because work involving the parking sign did not meet the statutory definition of ‘carry out road work’. I find it unnecessary to determine this interesting legal issue. If s 45 applies, then the plaintiff must show that the Council had ‘actual knowledge of the particular risk the materialisation of which resulted in the harm’. I have found above that the Council did have actual knowledge. The ‘special non-feasance protection’ in s 45 does not provide immunity to the Council, since it did have actual knowledge of the particular risk.”
“[173] The Council pleaded reliance on s 43A of the CLA in its Defence. The response to this by counsel for the plaintiff was to argue that there was ‘no special statutory power necessary for the Council to take appropriate steps to guard against the risk posed by the hole’.
[174] I find it unnecessary to consider this legal issue, as the Council employees who were called as witnesses thought that, if a concealed hole in the grass verge was known to Council, steps should have been taken to exercise their power to guard against the risks posed by the hole. There was nothing in the case to suggest that the omission of the Council to take steps in relation to the concealed hole was so unreasonable that no authority could properly consider such omission to be a reasonable failure to exercise their power to take appropriate precautions against the risk of harm. Thus s 43A of the CLA provides no protection to the Council in light of the facts found.”
On 12 September 2025, the appellant filed a Notice of Appeal. The appeal is brought under s 127 of the District Court Act 1973 (NSW). The Notice of Appeal challenges the primary judgment in relation to liability only.
The grounds of appeal are:
“Specific factual findings
1 The primary judge erred in finding that, (Judgment Reasons (JR) [151]):
a) Mr Norman Penhall rang the Council (Appellant) and reported that the sign had come out of the ground and was lying on the ground.
b) The report by Mr Penhall that a Council sign was lying on the ground logically also informed the Council that there was a hole created in the grass verge;
c) It was the Council who took the fallen sign away.
Negligence
2 The primary judge erred in finding that the Appellant was negligent.
Non-feasance protection for roads authorities
3 The primary judge erred in failing to find that the liability alleged by the Respondent arose from a failure of the Appellant, as a roads authority, to carry out road work, for the purposes of s 45 of the Civil Liability Act 2002 (NSW), (CLA), (JR [171]).
4 The primary judge erred in finding that the Appellant had actual knowledge of the particular risk the materialisation of which resulted in the harm, because:
a) The onus to establish actual knowledge rested on the Respondent;
b) The evidence of a verbal report to the Appellant was unsatisfactory, and insufficient to support the finding on the balance of probabilities;
c) The evidence of a verbal report to the Appellant did not in any event include any statement that such report identified the particular risk; and
d) The evidence did not establish that any officer of the Respondent with any responsibility for carrying out roadworks became aware of the particular risk, (applying the reasoning in North Sydney Council v Roman (2007) 69 NSWLR 240 at [130],[156],[157]).
5 In the circumstances, the primary judge should have held that the Appellant was immune from liability for the Respondent's claim, pursuant to s 45(1) of the CLA.
Failure to exercise a special statutory power
6 The primary judge erred in failing to find that the Respondent's claim relied upon an omission by the Appellant which involved a failure to exercise a special statutory power, for the purposes of s 43A of the CLA, (JR [174]).
7 In the circumstances, the primary judge should have held that the Appellant was not liable to the Respondent, because the omission relied upon was not so unreasonable that no authority having the special statutory power in question could properly consider the omission to be a reasonable failure to exercise its power.”
“The Respondent contends that the decision of Russell SC DCJ of the District Court of New South Wales should be affirmed on grounds other than those relied on by Russell SC DCJ of the District Court of New South Wales but does not seek a discharge or variation of any part of the decision.”
“The Respondent contents that the Primary Judge ought to have found that section 45 of the Civil Liability Act 2002 (NSW) did not apply to the Respondent’s claim on the basis that the failure alleged was not to “carry out road work” as defined in that section.”
“PREISTLEY: … This appeal challenges factual findings, there are three in particular identified, and from the outset the appellant concedes that the appeal turns very much on the outcome of those factual challenges.
Put simply … If those challenges are not successful then the [s 45] immunity will not apply. There is a separate ground under s 43A, but it’s very likely to fall with s 45 as well.”
Mr Priestley SC dealt with those factual challenges compendiously as dispositive of grounds 1–5 and I propose to address the case in the same way. The appellant challenged only three factual findings, namely that:
Mr Norman Penhall rang the Council and reported that the sign had come out of the ground and was lying on the ground (described by the appellant as “Fact 1”);
the report by Mr Penhall that a Council sign was lying on the ground logically also informed the Council that there was a hole created in the grass verge (described by the appellant as “Fact 2”); and
the primary judge was entitled to infer “because of this sequence of events, that it was the Council who took the fallen sign away. Removal occurred very shortly after Mr Penhall made his report to the Council” (described by the appellant as “Fact 3”).
The appellant did not dispute the finding of the primary judge that the particular risk was the hole in the grass verge left by the sign which had fallen out, but submitted that no proper basis existed in the evidence for the conclusion that the appellant had actual knowledge of the particular risk.
The appellant submitted that the “critical finding for the purposes both of the application of the s 45 immunity and for liability generally, was that the appellant had been relevantly notified and was aware of the particular risk of harm before the respondent’s accident” (Facts 1 and 2).
The appellant submitted that this Court should not conclude that Mr Ostini was “confident” that Mr Penhall had called the Council, when in cross-examination it was put to him that Mr Penhall may have said he was going to call the Council but did not “get around to doing it”. It is to be noted at this stage that Mr Ostini emphatically rejected this suggestion.
The appellant submitted that the Council’s records, taken together, provided little support for the “invariable practice” of Mr Penhall referring matters of concern to it. This paucity of evidence was submitted to undermine his Honour’s conclusions reflected in Facts 1–3.
The difficulties, the appellant submitted, with the primary judge’s finding that the appellant had actual knowledge of the particular risk of harm were:
the evidence that Mr Penhall had apparently notified Ms McPherson was problematic, because she did not recall Mr Penhall’s complaint and had made no note of it;
the finding that Mr Penhall may have instead notified someone else at Council had the difficulty that Ms McPherson was the usual person he apparently spoke to at Council because he knew her, and there was no record in the Council’s system of any such complaint;
it was true that the absence of a record was not reliable proof of the fact that no complaint had been made, because sometimes matters were not recorded. However, that did not make the lack of record irrelevant in the analysis, particularly as his Honour accepted that Ms McPherson was a conscientious officer. The onus was on the respondent to establish the facts underpinning actual knowledge, in this case by some report;
The appellant accepted that if it could not overturn the factual findings addressed above, it could not succeed under s 45 of the Civil Liability Act. If those findings were reversed, the appellant submitted that s 45 provided statutory immunity to it for any failure to carry out road work, or to consider carrying out road work, unless at the time of the alleged failure it had actual knowledge of the particular risk the materialisation of which resulted in the harm.
The appellant submitted that if it succeeded in overturning the factual findings, a legal issue arose on the notice of contention as to whether the work that it was said the appellant should have done as a reasonable precaution against the risk of harm was properly characterised as “road work” within the definition of that term under the Roads Act 1993 (NSW), or whether it was exempted from that definition because it rather involved work related to a “traffic control facility”.
Both parties accepted that the sign constituted a “traffic control facility” for the purposes of the Roads Act. However, the appellant submitted that work done in relation to replacing the sign (or failing to replace the sign) was not relevant as irrespective of how work to replace the sign was characterised, the critical omission was a failure to fill in a hole which was “road work” and did not itself relate to a traffic control facility. Any decision by the appellant to restore parking signage in the area did not alleviate the risk of harm created by the hole. It was submitted that the failure to fill in the hole was an omission to complete “road work”. Thus, it was submitted, s 45 applied.
The respondent accepted that if it succeeded on the actual knowledge point, this point need not be decided. The respondent submitted, however, that the work which should have been done to fill in the hole was work in connection with a “traffic control facility” and thus exempt from the definition of “road work”. If it were necessary to decide the point, the respondent submitted that the work was exempted from that definition because it rather involved work in connection with a “traffic control facility”.
The appellant accepted that if it could not overturn the factual findings addressed above, it could not succeed under s 43A of the Civil Liability Act. If those findings were reversed, the appellant submitted that there was here an act or omission involving the exercise of a special statutory power. The appellant, as the relevant roads authority, was empowered to carry out road work, including filling holes in footpaths (or, it was submitted, verges): see s 71 and the definition of “road work” in the Roads Act.
It was submitted that the general public were not permitted to carry out “road work” under ss 71 and 138(1) of the Roads Act. It followed, so the argument went, that the appellant could only fill in the hole in the verge in Byng Street by the exercise of a Roads Act power.
On the question of whether the liability asserted was based on the appellant’s exercise of, or failure to exercise, that statutory power, the appellant asserted that the respondent relied on the appellant’s omission to carry out “road work”, thus satisfying s 43A(1) and engaging s 43A(3). However, in the appellant’s submission, any failure by the appellant to take the relevant precautions was not sufficiently unreasonable. Removing the assumption that the appellant was advised about the hole, this duty of care was not proven to have been breached.
The appellant submitted that there was no basis to conclude that the appellant’s inspection system was inadequate or unreasonable by the standard of rural city councils. The evidence said nothing as to whether the inspections were carried out adequately. It appears that the sign came out of the ground in a window between inspections.
The respondent accepted that if it succeeded on the actual knowledge point the s 43A point need not be decided. If it were necessary to decide, however, the respondent submitted that it had not been established by the appellant that:
the liability upon which the Council was sued was “based on” the exercise of a statutory power conferred on the defendant: s 43A(1); and (in any event)
any power identified by the Council was a “special statutory power” being a power “of a kind that persons generally are not authorised to exercise without specific statutory authority”: s 43A(2)(a) and (b) respectively.
“[55] Appellate restraint with respect to interference with a trial judge's findings unless they are ‘glaringly improbable’ or ‘contrary to compelling inferences’ is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts.” (Footnotes omitted).
“[23] …the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.” (Footnote omitted).
“[7] As is well recognised, however, when evaluating findings of fact made following a trial involving oral evidence and cross-examination of key witnesses, an appellate court must be mindful of the advantages enjoyed by a primary judge who observed the trial and the evidence as it unfolded. The high bar set for a challenge such as that brought by the appellant here reflects the advantages of a primary judge “by reason of having seen the witnesses and having been immersed in the milieu of the trial”: J and E Vella Pty Ltd v Hobson [2023] NSWCA 234 at [214] (Stern JA, Mitchelmore JA agreeing).”
The appellant’s submissions dealt with the three impugned facts essentially as an amalgam without identifying why each particular finding was incorrect. When evaluating findings of fact made following a trial involving oral evidence and cross-examination of key witnesses, an appellate court should be mindful of the advantages enjoyed by a primary judge of the kind described in the passage from Davey v Want quoted immediately above.
As I have explained, the assessment of the credibility or reliability of witnesses includes findings about secondary facts, which are based on a combination of these impressions and other inferences from primary facts. They are all aspects of the primary judge’s advantage. So much was accepted by the appellant in this case:
“BELL CJ: There’d be questions of tone, though, wouldn’t there, for example, which don’t necessarily leap off the page? A sort of confidence or …things like tone, sometimes sarcasm and responses, volume, all those kind of things which aren’t necessarily demeanour, but they’re part of the primary judge’s advantage.
PRIESTLEY: Yes, we accept that.”
“(6) Between 20 December 2019 and 3 January 2020 the parking sign came out of the ground and was lying in the vicinity of its original location.
(7) There was concrete still attached to the pole of the parking sign, and there was a hole in the grass verge where the sign had come out of the ground.
(8) Ms Noon fell into the hole on a day between 20 December 2019 and 3 January 2020
(9) Ms Bastik saw the parking sign lying on the ground in that time period.
(10) Ms Ostini saw the parking sign lying on the ground in that time period.”
“(12) The report made by Mr Penhall was an oral report and was not recorded in the written records kept by the Council.”
“(13) There were occasions when oral reports were not recorded in writing.”
“(15) Mr Penhall told Mr Jaeger that he should be careful when mowing the lawn as there was a hole in the ground left by the sign.
(16) Ms Bastik recalled the sign remaining on the ground just a short time before it was removed.
(17) Mr Ostini recalled the sign lying on the ground for a day or two or three.
(18) The fallen sign was removed from Byng Street within a short period of time after Mr Penhall made his call to the Council.”
These unchallenged findings, particularly the finding that Mr Penhall told Mr Jaeger that he should be careful when mowing the verge as there was a hole in the ground left by the sign, strongly supported the primary judge’s finding of the fact of a conversation between Mr Penhall and the Council about the very thing he had been talking about all day and the content of that, namely that during that call he had informed the Council about the hole in the verge.
In addition to these unchallenged findings, the context in which the three challenged facts were found is important. Ms Bastik’s evidence was important and essentially unchallenged. Ms Bastik saw a parking sign attached to a pole with a “concrete ball” on the other end of the pole lying on the grass verge on Byng Street, Orange during the Christmas/New Year shutdown period in 2019–2020 “for a short time” before it was removed. Ms Susan Noon, who was employed by Ms Bastik as a cook, had fallen into a hole in the grass verge during the period the parking sign was lying on the grass verge.
Regarding the finding of fact that Mr Penhall rang the Council “within a short period of time” before it was removed and reported that the sign had come out of the ground, the evidence relied upon by the primary judge must be considered in context with Mr Ostini’s evidence as a whole. Mr Ostini was called in the respondent’s case but had no interest in the outcome of the proceedings. There was no suggestion that Mr Ostini had any connection with the respondent. Reading the transcript of his evidence, I was impressed with his honesty and clarity. The primary judge, who had a considerable advantage in observing the evidence, accepted it. His Honour found that Mr Ostini was “absolutely certain” about his evidence concerning Mr Penhall reporting the matter to Council. No error was shown in that conclusion.
It is clear that the fact that the sign was out of the ground came to Mr Ostini’s attention because he heard Mr Penhall say he had called the Council, he heard Mr Penhall talking about the sign, at some length, and Mr Penhall specifically told him about the sign. Mr Ostini shortly thereafter personally observed the sign out of the ground. Mr Ostini heard Mr Penhall telling the gardener responsible for mowing the verge, Mr Jaeger, that there was a hole in the verge he should avoid. These matters provide a compelling basis to find that Mr Penhall rang the Council and reported that the sign had come out of the ground and was lying on the ground and that in this report Mr Penhall also informed the appellant that there was a hole created in the grass verge.
Mr Ostini was challenged about the clarity of his memory. Mr Ostini properly conceded that his memory was imperfect, but on the critical issue his evidence was clear and compelling:
“Q. In that regard what you’re saying is that Mr Penhall said he was going to call the council about the sign; that’s correct, is it?
A. He spoke - the first conversation I had with him that he was going to, and then as the day went on he discussed that he had spoken to council to get them to remove the sign and fix the hole.”
The surrounding evidence also supports the findings of the primary judge. Ms McPherson accepted that she may have received a phone call from Mr Penhall about the street sign that she did not remember and may not have recorded.
No error has been shown in the conclusion of the primary judge that the very short time between the making of the complaint to the Council by Mr Penhall and the collection of the sign makes it sufficiently likely that it was collected by the Council as a result of Mr Penhall’s complaint. I draw the same conclusion. Senior Counsel for the appellant properly accepted that the conclusion I have drawn was open:
“BELL CJ: But assuming it was open to his Honour to find that it was reported, isn’t it natural to assume that a competent Council would deal with it expeditiously? If someone rings up and says, “There’s a sign which has fallen down,” why wouldn’t the inference be that the Council did something about it sort of soon after being told of it?
PRIESTLEY: Yes, quite, if one accepts that there was a report the sign is out and then the sign goes away a few days later.”
The primary judge was correct to conclude that Mr Penhall actually reported to the Council that the sign had come out of the ground and was lying on the ground. The finding accorded with the weight of available evidence. Considering all of the evidence under s 75A of the S**upreme Court Act 1970 (NSW), I make the same finding.
The evidence before the primary judge also supported the finding that Mr Penhall told the Council that a sign had come out of the ground and was lying on the ground. This report logically also informed the Council that there was a hole created in the grass verge. This conclusion follows from a combination of the finding that Mr Penhall made the report and the objective evidence of the state of the sign and the grass verge.
It was obvious that a sign which had fallen out, to which a concrete bulb remained attached, would leave a hole in the verge. The Council well understood that the sign was fixed in place in the verge with concrete. Ms Bastik observed there was a concrete ball attached to the pole when it was lying on the ground. The Council tendered photographs of what is typically found when a street sign is pulled out, demonstrating a sizeable hole. The photos were labelled “Calare School – Frost Street – example of what is found when a sign has been pulled out”, “[p]rovided by Brad Whitton”:
These photographs, provided by the Council, make it quite obvious what the verge looks like when a sign has come out of the ground. When a road sign comes out of the ground with concrete attached, there is necessarily a hole left behind.
The competing inferences advanced by the appellant are unlikely. If a vandal had removed the sign shortly after Mr Penhall’s complaint to the Council seeking to have the sign removed, this would have been a remarkable and quite unlikely coincidence. The primary judge made an unchallenged finding that “[t]he more likely reason for the sign coming out of the ground is that someone pulled it out”. This bears on the evidence the appellant relies on about vandalism and stealing signs. There may well have been vandalism in terms of pulling the sign out of the ground, but if pulling the sign out of the ground was an act of vandalism, one knows that it was left there by the vandal. It was not actually taken at the time of it being pulled out of the ground.
The appellant’s challenge to facts in ground 1 fails.
As to ground 2, the finding of negligence, Senior Counsel for the appellant acknowledged at the hearing that:
“I think negligence must fall with the same point about the actual knowledge on the actual findings…”
I agree.
Ground 2 should be dismissed.
45 Special non-feasance protection for roads authorities
(1) 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.
(2) This section does not operate—
(a) to create a duty of care in respect of a risk merely because a roads authority has actual knowledge of the risk, or
(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 meaning as in the Roads Act 1993.
“[160] In accordance with my findings of facts set out above, Council knew of the risk posed by the hole, because it knew of the fallen sign, having been informed of that by Mr Penhall. Any sign which has come out of the ground necessarily leaves a hole in the ground - the Council signs team knew that for 20 years, and thus the Council knew it. I find that s 5B(1)(a) of the CLA is satisfied.”
The case was conducted on both sides on the basis that if the complaint by Mr Penhall to the Council was made, which it undoubtedly was, then actual knowledge would be established. The relevant knowledge did exist in an officer responsible for exercising the power of the authority to mitigate the harm by causing the Council to collect the sign, even if that collection was by street sweepers as the Council suggested at one point as a possibility. A Council officer with authority to cause the Council to collect the sign was told by Mr Penhall of the existence of the hole. Once the sign with a concrete bulb attached was collected by the Council, the fact that a hole had been left where the sign had been fixed would also be plain and obvious from the circumstances to any level of Council officer conducting the collection. Mr Whitton’s evidence about the absence of a system at the depot for recording where signs deposited had been collected from and the absence of any written record of Mr Penhall’s complaint explains how the Council failed to act on the knowledge it undoubtedly possessed, if such an explanation is necessary. No error has been shown in the conclusion of the primary judge about the knowledge of the Council.
As I have explained, Senior Counsel for the appellant accepted that if his client could not overturn the factual findings of actual knowledge the subject of ground 1 of the appeal, it could not succeed under s 45 of the Civil Liability Act. This is because “at the time of the alleged failure the [Council] had actual knowledge of the particular risk the materialisation of which resulted in the harm”. For the reasons given in relation to ground 1 of the appeal, no error has been shown in the decision of the primary judge on this issue. Accordingly, grounds 3–5 must also be dismissed.
If it were necessary to do so (see Kuru v State of New South Wales (2008) 236 CLR 1; [2008] HCA 26 at [12] and Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49 at [8]), I would uphold the Notice of Contention point relating to s 45 of the Civil Liability Act for the following reasons.
It was common ground between the parties that the Council was a “roads authority” within the meaning of s 7 of the Roads Act. What was in dispute was whether the putative failure to address the risk caused by the hole remaining after the sign was removed was within the definition of “a failure of the authority to carry out road work”, that would enliven the qualified protection in s 45.
Section 45(3) of the Civil Liability Act provides that “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 ” (emphasis added).
road work includes any kind of work, building or structure (such as a roadway, footway, bridge, tunnel, road-ferry, rest area, transitway station or service centre or rail infrastructure) that is constructed, installed or relocated on or in the vicinity of a road for the purpose of facilitating the use of the road as a road, the regulation of traffic on the road or the carriage of utility services across the road, but does not include a traffic control facility, and carry out road work includes carry out any activity in connection with the construction, erection, installation, maintenance, repair, removal or replacement of a road work.
(Emphasis added.)
traffic control facility has the same meaning as it has in Part 6 of the Transport Administration Act 1988, and carry out traffic control work includes carry out any activity in connection with the construction, erection, installation, maintenance, repair, removal or replacement of a traffic control facility.
It was common ground between the parties that the relevant parking sign constituted a “traffic control facility” within the meaning of the Roads Act. In oral submissions the Council accepted that, as a matter of construction of the Roads Act, work in connection with, relevantly, removal or replacement of a traffic control facility, was not “road work”. It is well established that a “traffic control facility” is not a “road work” within the Roads Act definition: Colavon Pty Ltd v Bellingen Shire Council [2008] NSWCA 355 at [103] (Campbell JA, Beazley JA and Handley AJA agreeing); Collins v Clarence Valley Council (No 3) [2013] NSWSC 1682 at [133] (Beech-Jones J).
The expression “in connection with” generally means that a broad connection, not a causal one, is sufficient. However, the degree of connection required is determined by the context in which the words appear: Perry Herzfeld and Thomas Prince, Interpretation (3rd ed, 2024, Thomson Reuters) at [4.420] and the authorities cited therein. In Grain Growers Ltd v Chief Commissioner of State Revenue (NSW) (2016) 93 NSWLR 415; [2016] NSWCA 359, Beazley P considered the words “in connection with” (Bathurst CJ and Leeming JA agreeing):
“[122] In Hoy v Coffs Harbour City Council (2016) 281 LGERA 411; [2016] NSWCA 257 at [60], Bathurst CJ accepted the submission of the applicant that the words “in connection with” are of “wide import”. Similarly, in Compagnie Francaise D’Assurance Pour le Commerce Exterieur t/as Coface Australia v Sims Group Australia Holdings Ltd (2013) 18 ANZ Ins Cas 61-995; [2013] NSWCA 418 at [66], Ward JA referred to consensus between the parties that the words were of “wide import”.
[123] So much may be accepted, so long as it is borne in mind that the meaning of such “relational terms”, as French CJ referred to phrases of this nature in R v Khazaal (2012) 246 CLR 601; [2012] HCA 26 at [31], is highly dependent upon context. His Honour said that:
“[31] … They are ambulatory words and may be designed to cover a variety of subjects and a variety of relationships between those subjects. The nature and breadth of the relationships they cover will depend upon their statutory context and purpose. (Footnote omitted)”
Little assistance is gained in ascertaining the meaning of the particular provision at hand by relying upon the meaning that those words have been given in a different statutory context.”
The appellant’s submission that any work to address the presence of the hole in the verge was properly characterised as “road work” is a strained construction. It involves artificially severing the clear connection with the “traffic control facility” (the sign itself), removal of which created the hole, and the task of filling in the hole as an incident of removing or replacing the sign.
I have concluded that, once the sign was removed, work to remediate the area was “traffic control work” within the definition of that term under the Roads Act because it was an “activity in connection with” the sign’s removal or replacement. Absent the removal of the traffic control facility which had come out of the ground with a concrete bulb attached, there would be no need for the work to occur. Addressing the hole and the risk created by the hole was therefore an activity in connection with the traffic control facility.
The work it was said the appellant should have done as a reasonable precaution against the risk of harm was exempted from the definition of “road work”, as it rather involved work relating to a “traffic control facility” under the Roads Act. If it were otherwise necessary to decide, the Council would not have been entitled to immunity under s 45 of the Civil Liability Act.
Grounds 3–5 should be dismissed.
43A Proceedings against public or other authorities for the exercise of special statutory powers
(1) This section applies to proceedings for civil liability to which this Part applies to the extent that the liability is based on a public or other authority’s exercise of, or failure to exercise, a special statutory power conferred on the authority.
(2) A special statutory power is a power—
(a) that is conferred by or under a statute, and
(b) that is of a kind that persons generally are not authorised to exercise without specific statutory authority.
(3) For the purposes of any such proceedings, any act or omission involving an exercise of, or failure to exercise, a special statutory power does not give rise to civil liability unless the act or omission was in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power.
(4) In the case of a special statutory power of a public or other authority to prohibit or regulate an activity, this section applies in addition to section 44.
The appellant accepted that if it could not overturn the factual findings addressed above, it could not succeed under s 43A of the Civil Liability Act. For the reasons given in relation to ground 1, the appeal in relation to s 43A fails and grounds 6 and 7 must be dismissed.
Even if that conclusion were not correct, I would nevertheless not uphold the appeal based on s 43A of the Civil Liability Act. Basten JA stated in Curtis v Harden Shire Council (2014) 88 NSWLR 10; [2014] NSWCA 314 (Bathurst CJ agreeing, Beazley P not deciding):
“[235] The question whether [s43A] applies must be approached in two stages. The first is to identify whether and to what extent the liability upon which the defendant is sued “is based on” the exercise of a statutory power conferred on the defendant: s 43A(1). The second stage requires reference to the power so identified to determine whether it is a “special statutory power” as defined in subs (2). To satisfy the definition, it must be a power “conferred by or under a statute” and “of a kind that persons generally are not authorised to exercise without specific statutory authority”: s 43A(2)(a) and (b) respectively.”
Concerning the first stage, the liability upon which the Council was sued was not “based on” the exercise of a statutory power. The risk of harm was the hole in the grass verge that Mr Willis tripped on. The precautions to protect against the risk of harm included filling the hole with dirt, applying contrasting paint, or putting a traffic cone or other cover over the hole. None of these steps requires the exercise of a statutory power. The Council, as the body responsible for the verge, was entitled to take those steps without relying on a special Roads Act power.
Concerning the second stage, if a member of the public were to fill in the hole or put paint or a traffic cone over the hole, they would be able to do so without any specific statutory authority. Indeed, while the Council was the body responsible for the grass verge, it was mowed and maintained at the relevant time by Mr Jaeger, who was employed by Mr Penhall.
If it were necessary to decide, the Council would fail on both limbs of s 43A of the Civil Liability Act. Grounds 6–7 should be dismissed.
For the foregoing reasons I propose the following orders:
Appeal dismissed.
Appellant to pay the respondent’s costs.
STERN JA: I agree with Payne JA.
**********
His Honour did not, however, accept her evidence about the size of the concrete ball. Nothing turns on the precise size of the “concrete ball” for the purposes of the appeal.
Orange City Council
Willis [2026] NSWCA 51
(2019) 268 CLR 593
(2014) 88 NSWLR 10
(2003) 214 CLR 118
(2016) 93 NSWLR 415
(2008) 236 CLR 1
(2019) 266 CLR 129
(2015) 91 NSWLR 556
(2007) 69 NSWLR 240
(2016) 281 LGERA 411
(2012) 246 CLR 601
Appeal dismissed. The appellant, Orange City Council, was ordered to pay the respondent’s costs ([96]).
The primary judge accepted the respondent’s evidence about falling into a hole on 9 July 2020 in the grass verge on Byng Street near the intersection of William Street, Orange, and the effects of the fall upon him. The primary judge also found the respondent’s partner, Ms Beach, who gave evidence about essentially the same issues, to be a reliable and credible witness. The respondent reported his fall to the Council.
Mr Whitton, an employee of the Council responsible (with a Mr Costello) in 2020 for replacing street signs, gave evidence that “I do remember replacing a sign” in Byng Street near Coco’s café on 12 July 2020. Mr Whitton gave evidence that he got a phone call to go there on that date. He and Mr Costello put up a new sign on a pole. Mr Whitton had no knowledge of a sign previously at that location. Mr Whitton explained that street signs were regularly brought to the depot where Mr Whitton and Mr Costello worked, including by other Council employees such as street sweepers. He gave evidence that if a sign had been dropped off by another Council employee, no marking was made on the sign and it “sometimes is difficult” to determine where the sign came from. This was because no record was kept at that time of anything that was dropped off at the depot. Mr Whitton and Mr Costello had been on leave in the period between 20 December 2019 and 3 January 2020.
Ms Maureen McPherson, an employee of the Council, was nominated by Mr Ostini as a person Mr Penhall often communicated with about Council matters. Ms McPherson did not recall speaking with Mr Penhall about a sign which had fallen out of the ground. She accepted in cross-examination that it was “quite possible” that Mr Penhall had called her between 20 December 2019 and 3 January 2020 to discuss the street sign which was lying on the verge on Byng Street. She also accepted that she might not have remembered to put Mr Penhall’s complaint into the Council’s electronic customer reporting management system as she “might have been busy dealing with other matters”.
The primary judge summarised the relevant documentary evidence as being:
pre-incident photographs showing the sign in Byng Street before the incident, visibly leaning;
photographs taken on day of the incident, showing the hole visible in the grass;
an Incident Report Form resulting from Mr Willis’ and Ms Beach’s oral report made at the offices of the appellant on the day of the incident;
post-incident photographs of the sign when it was replaced; and
other Council documents, being Customer Relationship Management system (“CRM”) records, Government Information Public Access (“GIPA”) documents, CRM inquiries, and documents concerning the appellant’s inspection regime, all of which the primary judge noted were uncontroversial.
The primary judge also referred to the expert report tendered by the respondent, by Mr Denis Cauduro, a qualified ergonomist and safety professional. Mr Cauduro said that Mr Willis suffered a fall injury when his foot collapsed into a visually indistinct hole in a turfed nature strip. He said that the cost to fill the hole with soil would have been no more than $50 and would have taken no longer than 15 minutes.
The primary judge set out his findings of fact as follows:
Mr Ostini’s evidence involved overheard conversation or conversations of events many years before he gave evidence, and the confidence he expressed in his evidence did not necessarily prove that Mr Penhall had done anything in particular;
very little is known about what, if anything, Mr Penhall said to any Council officer;
there was no satisfactory basis to conclude that Mr Penhall advised the appellant of the existence of a hole, or of the risk of harm of someone stepping in a hole;
the evidence did not establish that a sign could not come out and be lying on the ground without creating a hole;
it was not proven that that a large ball of concrete necessarily came out with the sign;
even if Ms McPherson was advised of the issue, she was an administrative assistant and not in the roadworks department, and was not necessarily an officer responsible for exercising the power to mitigate the harm, by repair. Accordingly, by reason of this Court’s decisions in North Sydney Council v Roman (2007) 69 NSWLR 240; [2007] NSWCA 27 at [130], [156]-[157] and Nightingale v Blacktown City Council (2015) 91 NSWLR 556; [2015] NSWCA 423 at [45]-[48], [64], the appellant was entitled to succeed; and
the primary judge did not infer knowledge, and it would not be reasonable to do so simply from inspections, where the hole was said to be difficult to discern.
The appellant had called as witnesses Mr Whitton and Mr Costello, the workers who were specifically responsible for collecting and replacing signage. It was submitted that the sign may have been collected by other Council workers who, having regard to their roles, would have had “no reason” to report the sign’s position or a possible tripping hazard.
In the appellant’s submission, the finding that the appellant had probably picked up the sign was not adequately supported. This conclusion “rested heavily” on the impugned finding that Mr Penhall had notified the appellant. There was evidence of regular vandalism of signs by unknown persons. There was no evidence of such a sign being left in the appellant’s yard.
The appellant submitted that even a finding that an unidentified Council worker had picked up the sign could not translate to actual knowledge for the purposes of s 45.
The respondent submitted that the primary judge was correct, for essentially the reasons he gave. His Honour’s factual findings were clearly open to him and it would be inconsistent with principle for an appellate court to overturn those factual findings.
The respondent submitted that there were abundant unchallenged factual findings made by the primary judge which supported the findings of Facts 1–3 and the ultimate conclusions reached by the primary judge.
As at the date of the respondent’s injury, the Roads Act defined “road work” and “carry out road work” as follows: