The Full Bench of the Court of Appeal has considered the special protection against liability for roads authorities under s45 of the Civil Liabilities Act 2002 in the case of Nightingale v Blacktown City Council  NSWCA 423 (the Nightingale case).
Civil Liability Act Immunity
Section 45 of the Civil Liability Act 2002 (Civil Liability Act) provides an immunity to a council (as a “roads authority”) against liability for any failure to “carry out road work” in circumstances where the council did not have “actual knowledge of the particular risk” which caused the harm.
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 [emphasis added].
The phrase “carry out road work” is defined to mean 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.
In the early hours of 27 February 2011, the appellant sustained injuries to his foot and ankle as a result of a fall that occurred when he stepped onto a sunken area of footpath. He contended that his injuries were caused by the negligence of the respondent Council in failing to repair the footpath, adequately light the footpath, warn him of the danger, or barricade the area, and by the Council’s failure to have in place an adequate system of repair and maintenance. The appellant also argued that the Council was liable because it conducted its inspections negligently.
The Council’s evidence in relation to its system of inspection was that the road in question was inspected by the Council’s asset inspector about 3 times a year by driving along the road but from his position in the car, he did not observe any defect in the footpath.
The Roman decision
In the earlier decision of the Court of Appeal in North Sydney Council v Roman  NSWCA 27 (Roman decision) the majority (Bryson and Basten JJA, McColl JA dissenting) held that, if the immunity given to a roads authority is to be avoided:
“… actual knowledge must be found in the mind of an officer within the council having delegated (or statutory) authority to carry out the necessary repairs” [at 156] (the Roman test).
McColl JA (in minority) took a different view. Her Honour held that the knowledge of those who are involved in a system of inspection and who have a duty to report their knowledge of a risk or a responsibility for repairs would be sufficient.
There are however differing views as to the correctness of the Roman test. The High Court of Australia granted leave to appeal the Roman decision however the matter settled before the appeal was heard. Furthermore, in the subsequent case of Blacktown City Council v Hocking  NSWCA 144 (Hocking), McColl’s dissenting interpretation of s45 received obiter dicta support with Tobias JA rephrasing the criteria to read:
“…the actual knowledge required by s.45(1) must be that of those officers of the authority whose responsibility it is to inspect roads and who have the duty to report their knowledge of the particular risk to those responsible for repairing the road or to consider repairing the road when such a risk is brought to their attention.”
In the Nightingale case in the first instance, the District Court applied the Roman Test and gave judgment for the Council on the basis that it was immune from liability by reason of s45.
On appeal to the NSWCA, a Full Bench (Beazley P, Basten JA, Macfarlan JA, Meagher JA and Simpson JA) was constituted to hear the appeal. The majority dismissed the appeal. Three issues were raised at the trial.
The interpretation of “actual knowledge” in s45 and whether the majority view in Roman was in error
A majority (Basten JA, Macfarlan JA and Meagher JA) found that the principle of restraint in departing from previous authority is such that the Roman decision should remain binding.
The judgments however show significant variation of opinion on this issue.
Basten JA was critical of McColl JA’s minority judgment in Roman. Whilst finding an attractiveness in the formulation adopted by Tobias JA in Hocking, he ultimately found that the criterion proposed by Tobias JA as locating relevant knowledge in any officer whose responsibility it is to inspect roads (and report the results of the inspections) is too broad a criterion [at 47]. He also found that, in any event, this was not an appropriate case to reconsider Roman. Basten JA held as follows:
“…What is clear is that for the purpose of s45 it is necessary to identify the “particular risk” which materialised; it is not sufficient to identify a type or kind of risk. … 
“Because the subject matter of the knowledge is so defined, it is doubtful that, in the circumstances revealed in Roman, such knowledge could properly be identified in a street sweeper. A roads authority will wish to know about all kinds of defects in its roadways and footpaths (and other infrastructure for which it is responsible): not all defects or features requiring maintenance will constitute “particular risks” for the purpose of s45. 
“… On the facts of the present case, the plaintiff needed to establish, in order to disengage the immunity, not merely that the Council knew there was an unevenness in the pavement where the plaintiff lost his balance, but that the unevenness constituted a risk to a pedestrian exercising reasonable care for his or her safety. …
That has two consequences in the present case. First, it would permit a variation in the category of persons whose knowledge is to be imputed to the Council. But that variation would not extend simply to persons whose function it is to inspect roads, looking for defects. It would only reformulate the category of officers beyond those responsible for authorising road works, to those responsible for identifying risks to safety. … 
Secondly, it makes this an inappropriate vehicle for reconsideration of Roman, because the assumption on which the trial was run was that it was sufficient to identify actual knowledge in the roads authority of the particular physical feature of the pavement which caused the plaintiff to take a misstep. … 
Beazley P, dissenting on this point held as follows:
Whilst, like Basten JA, I consider that the criteria suggested by Tobias JA in Blacktown City Council v Hocking has an attractiveness, I would prefer to avoid any formulation as to the category of persons who are the repository of the relevant knowledge for the purposes of the section.
Rather, I consider that s45 requires, in any given case, a determination of whether a roads authority had actual knowledge of the particular risk the materialisation of which resulted in the harm suffered by the plaintiff. Different road authorities will organise the arrangements whereby they carry out their statutory and other responsibilities in varying ways. The question to be determined under s 45 will be whether, depending upon its corporate organisational structure, the roads authority had that knowledge. [at 3-4]
Simpson JA dissented on this issue, finding that the decision of the majority in Roman is plainly wrong such that it should not be followed and that the question of actual knowledge must be addressed on a case-by-case basis.
Did the Council have “actual knowledge” in this case?
A majority found that there was no basis upon which to draw the inference that any of the officers of the Council about whom evidence was led and whose knowledge was relevant for the purposes of the Roman test had “actual knowledge” of the relevant risk.
Simpson JA (in dissent) held that were Roman to be overruled, different questions as to the Council’s actual knowledge would arise and different evidence would need to be led such that the appeal should be allowed and a new trial ordered.
The Council’s liability for negligent inspections
One of the appellant’s arguments was that the Council’s failure to exercise reasonable care in carrying out an inspection was not a failure to carry out road work but was the negligent carrying out of road work. It was accepted that a failure to institute a reasonable system of inspection would fall within the s45 immunity. However the plaintiff submitted that the Council’s liability was not excluded by s45 because the Council had conducted inspections negligently. This argument is made on the basis that “inspection” is included in the definition of “road work” (set out above).
However, Basten JA and Meagher JA found that a construction of s45 by which a roads authority’s negligent inspection would preclude it from relying on the immunity undermines the purpose of the provision and should not be accepted.
A majority found that the immunity under s45 applies because the immediate cause of the appellant’s injury was a failure to repair the footpath.
Simpson JA dissented on this point, finding that negligently carrying out inspections would not be subject to the s45 immunity and could result in a finding of liability against a council, subject to questions of causation. However as this issue was not given consideration in the District Court finding, findings on those questions could thus not be made.
Beazley JA, also dissenting on this issue found that it was not necessary to finally determine the application of s45 to negligent inspection as the appellant failed to establish such negligence in the present case.
What this means for Councils
In the Nightingale case, the NSWCA was bound to follow the majority view as to the interpretation of s45 held in Roman and affirmed the Roman test of “actual knowledge”, namely, in order for the immunity to be disengaged, an officer who has authority to carry out the necessary repairs must have “actual knowledge of the particular risk”.
However, there is considerable judicial criticism for the Roman test. Basten JA indicated support for a broader interpretation of “actual knowledge”, Simpson JA held that actual knowledge should be addressed on a case-by-case basis and Beazley P held that he would prefer to avoid any formulation as to the category of person, rather the question will be whether, depending upon its corporate organisational structure, the roads authority had “actual knowledge.
As to whether a council is protected from liability by s45 where inspections were carried out negligently, the majority held that where a council negligently carries out inspections of a road, and thus does not learn of a particular risk, the council could indeed rely on s45 to avoid liability.
For further information, please contact Tony Pickup of Local Government Legal on (02) 4922 2307
* The above information is not to be relied upon as legal advice.