Australia: All roads lead to Roman—Considering who in a road authority knew about a risk

Nightingale v Blacktown City Council [2015] NSWCA 423

A five member bench of the NSW Court of Appeal has recently upheld its decision in North Sydney Council v Roman [2007] 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 [2008] NSWCA 144.

The Nightingale decision also considered whether the immunity provided by s 45 extends to claims based on the negligent inspection of a roadway.

Background

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 work.

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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