Australia: Section 45 Civil Liability Act: Non-Feasance Immunity For Roads Authorities

Last Updated: 13 October 2008
Article by Michelle Morris

Angel v Hawkesbury City Council [2008] NSWCA 130, Blacktown City Council v Hocking [2008] NSWCA 144

The NSW Court of Appeal constituted a bench of five judges to hear the appeals in Angel and Hocking as in both matters the defendant councils raised a defence based on s45 of the Civil Liability Act 2002 (NSW) ('the CLA').

The councils relied upon the majority judgments of Basten and Bryson JJA in North City Sydney Council v Roman [2007] NSWCA 27 and submitted that the plaintiff in each appeal would fail. This prompted applications by the plaintiffs for leave to argue that Roman was wrongly decided and that the court should adopt the dissenting judgment of McColl JA.

In Roman the court of Appeal held that roads authorities are immune from liability for injuries arising from their failure to carry out road work, unless an officer within that authority who is authorised to carry out the necessary road work has actual knowledge of the particular risk that resulted in the injury. The court held that actual knowledge must exist at (or above) the level of the officer responsible for undertaking the necessary road work, and that knowledge held by an officer who did not have the authority to carry out road work could only give rise to constructive or imputed knowledge.

McColl JA dissented and argued that this outcome would frustrate the policy of the CLA by discouraging roads authorities from setting up effective risk reporting systems. Her Honour held that actual knowledge held by people who, acting within the scope of their duties learn of the particular risk, and are under an obligation to report it as part of the road authority's maintenance system, should be attributed to the roads authority.

The High Court granted special leave to appeal the Roman decision but the proceedings were settled and the appeal did not proceed.

Angel v Hawkesbury City Council

The Court of Appeal held that it was unnecessary for leave to be granted to the plaintiff in Angel to argue the correctness of Roman as the Council had actual knowledge of the particular risk that resulted in the injury and the plaintiff was entitled to succeed.

The plaintiff was an elderly woman who tripped on a 5cm raised lip of a concrete slab footpath in South Windsor. She gave evidence that on the day following her accident, she visited the Council and had a conversation with Ms Flanagan, an assistant insurance officer in the Risk Management Department.

The trial judge accepted the plaintiff's evidence that Ms Flanagan said that she knew about the defective slab and that it had been 'earmarked for repair'. On the basis of this evidence, the trial judge found the Council had actual knowledge of the raised lip of the concrete slab and thus the Council could not rely upon s45 of the CLA for its failure to repair the footpath.

The Council cross appealed against the trial judge's findings in relation to 'actual knowledge' for the purposes of s.45 CLA. The Council argued the trial judge should have found that the Council had no knowledge of the risk of injury within the meaning of s45 and/or that Ms Flanagan was not a person who was sufficiently and relevantly connected with discharging the responsibility of the Council for carrying out repairs to hold that it had actual knowledge within the meaning of s45.

The court rejected the Council's cross appeal.

Although Ms Flanagan said it was not her role, or that of her department, to monitor or be aware of Council assets that were scheduled for repair, she said that if a member of the public complained of being injured due to a poorly maintained asset, the complaint would be referred to the manager of the risk assessment department who would then seek a report from the Council's engineering department. It followed that the fact that Ms Flanagan was aware that the slab had been 'earmarked for repair' suggested the Council officers responsible for the carrying out of relevant work must have had knowledge of the particular risk posed by the slab to pedestrians using the footpath.

The court dispensed with the appeal without need to determine the correctness of Roman.

Blacktown City Council v Hocking

The plaintiff was injured when she fell into a communications pit after stepping on a defective lid. The pit had been installed by Telstra between 1975 and 1980 and the Council had constructed a footpath around the pit in about 1994 or 1995. The Council said the footpath around the pit would have been inspected after construction, and that general inspections of the footpath had been undertaken by a maintenance officer at the Council from time to time thereafter. The Council maintained that the inspections undertaken by its maintenance officer did not reveal that the lid was defective. The maintenance officer was not called to give evidence.

The issues to be determined in the proceedings included: whether the Council had negligently constructed the footpath; whether the Council had negligently inspected the footpath after its construction; and whether the inspections undertaken by the Council should have alerted it that the pit was defective.

The trial judge held that the pit was negligently constructed and that any inspection, had it been properly conducted, would have revealed that the lid was damaged and unstable. On that basis the trial judge found in the plaintiff's favour.

The Court of Appeal unanimously held that the Council had not been negligent in connection with the construction of the footpath around the pit.

The court found that the damage which led to the lid being unstable occurred after construction.

Spigelman CJ, Beazley and Campbell JJA did not disturb the trial judge's finding that the Council was negligent in the performance of inspections after the footpath was constructed. However, they considered the appeal should be determined on the basis of the Council's reliance on s45 of the CLA. They noted that the inspections carried out by the maintenance officer did not reveal that the lid was defective, and therefore held that the Council had no actual knowledge of the particular risk that resulted in the injury. They upheld the Council's appeal.

Giles JA held that there the Council was not negligent in the performance of inspections after the footpath was constructed and that the issues concerned with the Council's actual knowledge of the risk did not arise for consideration. He also upheld the Council's appeal.

Tobias JA would have dismissed the Council's appeal. He agreed with the trial judge's findings that the Council was negligent in the performance of inspections after the footpath was constructed. He also held that the failure of the Council to call the maintenance officer to give evidence enabled the trial judge to draw the inference that the Council had actual knowledge of the defect.

Tobias JA expressed the view that the court should reconsider its decision in Roman. He said the reasoning of McColl JA was equally consistent with the language of s45 and should be preferred. In his view, the critical requirement of s45 was that the knowledge of the relevant risk had to be 'actual', but it did not have to be held by the officer with responsibility for authorising the hazard to be repaired.

Tobias JA said the maintenance officer was responsible for inspecting the Council's roads for the purpose of identifying hazards which required repair by the maintenance department. It followed therefore that the Council was not protected by s45 for its failure to carry out repairs to the lid of the pit.


These two NSW Court of Appeal decisions are consistent with the judgments of Basten and Bryson JJA in Roman. However because of the particular facts of these cases, the authority was not directly challenged. The judgment of Tobias JA in Hocking confirms there is still a degree of uncertainty in the area. Until that is resolved, the court's interpretation of s45 of the CLA remains that roads authorities are immune from liability for injuries arising from their failure to carry out road work, unless it can be established that an officer who is authorised to carry out the road work has actual knowledge of the particular risk of injury.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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