Nightingale v Blacktown City Council  NSWCA
A five member bench of the NSW Court of Appeal has recently
upheld its decision in North Sydney Council v Roman 
69 NSWLR 240 about who within a roads authority must have actual
knowledge of a particular risk, the materialisation of which
results in harm, for the purpose of s 45 of the Civil Liability
Act 2002 (NSW) (CLA).
There had previously been some doubt about the correctness of
Roman, as the High Court granted special leave to appeal
from the Court of Appeal's decision (although the case then
settled) and the minority view in Roman was preferred by
Tobias AJ in Blacktown City Council v Hocking  NSWCA
The Nightingale decision also considered whether the
immunity provided by s 45 extends to claims based on the negligent
inspection of a roadway.
The Appellant injured his right foot and ankle when he stepped
into a sunken area of a public footpath. The Council denied
liability, relying in part on the statutory immunity in s 45 of the
CLA, which provides that a roads authority is not liable for
failing to carry out (or to consider carrying out) road work unless
it had actual knowledge of the particular risk, the materialisation
of which caused the harm.
The evidence established that those persons within the Council
responsible for deciding whether repair works should be undertaken
once a defect was reported to them, did not know of the depression
before the accident.
Interpretation of actual knowledge in s 45
The majority of the Court of Appeal (Basten, Macfarlan and
Meagher JJA) upheld the majority decision in Roman, that
is, the person within a roads authority who must have the relevant
actual knowledge for the statutory immunity not to apply is a
person who has the authority to carry out the necessary repairs.
Accordingly, in Roman the knowledge of a defect in the
footpath by street sweepers was insufficient. In
Nightingale, the knowledge of a maintenance inspector
(which was ultimately not proven) would not have been sufficient to
overcome the statutory immunity because the inspector did not have
authority to approve repairs.
Beazley P and Simpson JA dissented and preferred to determine
whether the roads authority had actual knowledge of the particular
risk on a case-by-case basis.
Negligent inspections and the statutory immunity
One of the arguments raised by the Appellant was that the
Council must have carried out its road inspections negligently and
failed to identify the defect in the footpath. This gave rise to an
interesting question of whether the statutory immunity, which
applies to a failure to carry out or to consider carrying out road
work, applied to the claim based on negligent inspections.
Again, the same majority of the Court of Appeal found against
the Appellant. They held that the proximate cause of the
Appellant's injury was not the allegedly negligent inspections
but the failure to rectify the unevenness in the footpath and this
fell squarely within the statutory immunity.
Beazley P did not determine this issue. Simpson JA dissented and
held that the negligent carrying out of inspections was not subject
to the statutory immunity. However, her Honour acknowledged that
complex questions of causation would still need to be determined
before a roads authority was held liable for negligent inspections,
which had not been considered on the facts of the case.
Implications of the decision
Nightingale has affirmed the narrow construction of who
within a roads authority must have actual knowledge of a particular
risk that materialised in the harm, for the statutory immunity in s
45 not to apply. Any doubts about the correctness of Roman
in NSW have been cast aside. Nightingale is also
significant for its finding that the statutory immunity cannot be
overcome by re-casting a claim as a negligent failure to inspect if
the proximate cause of the loss was failing to carry out road
This is a welcome decision for roads authorities, however, it
seems inevitable that both issues will ultimately be determined by
the High Court.
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The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel (1959) 101 CLR 298. An unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn.
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