New South Wales Court of Appeal allows appeal from injured Goulburn man in his public liability claim against the Goulburn Council.
Eddy v Goulburn Mulwaree Council  NSWCA 87.
Bringing a claim in negligence against a local council, otherwise known as a public authority, is a nuanced and complicated process. This is largely because in New South Wales (and, indeed, most States and Territories in Australia), a council is a ‘special’ entity that is afforded protections under the Civil Liability Act 2002 (NSW) (‘the Act’) that other defendants do not enjoy. These protections are contained in Part 5 of the Act.
The Court of Appeal decision of Eddy v Goulburn Mulwaree Council  NSWCA 87 (‘Eddy’) was handed down on 7 June 2022 and looks at s 45(1) specifically. In this decision, Their Honours found that the Goulburn Council had actual knowledge of a particular risk, being the risk a small ramp was unstable unless it was secured. Their Honours were satisfied that the ‘very specific risk in the very specific area’ materialised and resulted in harm to Mr Eddy, holding that the Council could not rely on s 45(1) and remitting the decision back to the District Court of New South Wales for hearing.
Stacks The Law Firm acted for Mr Eddy in his public liability claim, in the first instance and successful appeal proceedings.
THE MATERIAL FACTS
On 27 April 2017, Mr Eddy was shopping at Coles Centro Centre (‘the Centre’) in Goulburn. The footpath outside the Centre was being repaved for some time before the accident. This involved removing the existing paving, with the work being completed in stages.
On the day of Mr Eddy’s slip and fall accident, he entered the Centre via a ‘small’ ramp. As he walked up the subject ramp, it slipped out from underneath him. He fell heavily to the ground, sustaining serious injury.
The footpath was under the care, control and management of the Goulburn Mulwaree Council. He sued the Council in the District Court of New South Wales in negligence, alleging that the Council owed him a duty of care and that it breached that duty of care. He also pursued and settled a claim against the contractors undertaking the work separately.
THE DISTRICT COURT DECISION AND THE DEFENCE
Mr Eddy’s public liability claim was heard in the District Court of New South Wales at first instance. The Council sought to avoid liability for Mr Eddy’s injuries by evoking s 45(1) of the Act, being a complete defence to his claim. Mr Eddy contended that while s 45(1) was available to the Council, it did not apply in his case because the Council had knowledge of the particular risk, the materialisation of which resulted in the harm he suffered.
Section 45(1) provides:
A roads authority is not liable in proceedings for civil liability … 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.
Trial judge Strathdee DCJ accepted that the s 45(1) applied to the case, being a complete defence to liability. Her Honour dismissed Mr Eddy’s public liability claim with costs and therefore did not consider other issues arising in his claim, including what duty of care he was owed and whether it was breached.
RELEVANT LEGAL PRINCIPLES
Mr Eddy appealed the trial judge’s decision, contending that Her Honour erred in concluding that s 45 was available to the Council. The Court of Appeal’s decision was limited to the question of whether the Council was in fact afforded immunity by s 45. To determine this, Their Honours explored whether prior notification to the Council of earlier issues with ramps was sufficient to constitute knowledge of the particular risk within meaning of the section. This turned on issues of characterisation of the risk and the level of specificity required by s 45.
THE DECISION – DID THE COUNCIL HAVE ACTUAL KNOWLEDGE OF THE RISK?
Their Honours observed that there had been two other incidents involving ramps in the area of the footpath works prior to Mr Eddy’s accident. The Council argued that there were two types of ramps being employed around the repaving, and that neither of the previous incidents were relevant to notification of Mr Eddy’s risk because they involved the ‘larger type of ramps’ and the notification related to its steepness, not instability.
Despite the Council’s contention, Their Honours were persuaded that the second notification related to the same type of ramp that Mr Eddy sustained injury. Their Honours concluded that the Council had actual knowledge of a risk that the smaller ramps were unstable and implicitly that ‘this instability created a risk of injury unless it was secured’. Their Honours noted the ‘particular risk’ at issue was the “risk of the ramp being susceptible to movement because it was not properly installed or connected”.
Having found the Council did have actual knowledge of the type of risk that materialised, Their Honours then went on to determine whether that knowledge was sufficient to be ‘actual knowledge of the particular risk, the materialisation of which resulted in the harm’ for the purpose of s 45.
THE DECISION – LEVEL OF SPECIFICITY REQUIRED FOR S 45 AND ACTUAL KNOWLEDGE OF THE PARTICULAR RISK
The Council submitted that the wording of s 45 meant that the defence was available to them because the Council did not know that the particular ramp, placed wherever it was at the time of the accident, was unsecured. The Council argued that there needed to be actual knowledge of the precise danger, ‘constituted in the case by the ramp at issue being in a particular place at the relevant time whilst being unsecured’. Their Honours saw the issue at hand as the degree of specificity required by s 45.
In considering the issue of specificity required in characterising a risk for the purpose of s 45, Their Honours elucidated a ‘characterisation exercise’ to inform how to determine a ‘road authority’s actual knowledge of the particular risk the materialisation of which resulted in the harm’:
- It will usually involve a higher degree of particularity than that required by the s 5B breach analysis (assuming that s 5B analysis is called for at all, that is, that it is a claim involving negligence).
- It must meaningfully capture the risk that has come home, so that it reasonably can be said that the roads authority did know of a particular risk which caused the injury prior to incident in question. Factors likely to be important in this regard include the precision of the road authority’s actual knowledge of the location (eg a particular location as opposed to a large area) and of the nature of the risk to be found there (eg the knowledge that there were dangerous potholes, as opposed to some generic concern being raised that the roadway is unsafe).
- It does not require knowledge of every aspect of the precise causal pathway that led to the claimant suffering harm.
In respect of Mr Eddy’s public liability claim, Their Honours concluded that the Council had actual knowledge of a very specific risk in a very specific area. Their Honours observed that at the time of Mr Eddy’s incident, the Council had actual knowledge that the smaller, portable ramps being used were unstable and created a risk of injury unless secured and that Mr Eddy’s incident was a materialisation of that risk that resulted in harm.
Their Honours held that the primary judge erred in finding that s 45(1) applied. They remitted the matter back to the District Court for determination. The decision is awaited with interest and will include a determination of whether there was a duty of care owed, whether any duty was breached and the extent to which any breach caused injury, loss and damage.
LESSONS FROM THIS DECISION
This is a welcome decision for injured plaintiffs, with the Court of Appeal sensibly observing that s 45(1) ought not to be understood to require such a high degree of specificity as to make it ‘generally impossible’ for claimants to satisfy the criterion. In this case, the Council was unable to satisfy the Court that it did not have actual knowledge of the danger and that it did not have an opportunity to respond to that danger so as to attract the immunity from liability for Mr Eddy’s injuries.
Read full decision here: https://www.caselaw.nsw.gov.au/decision/1813b2e3a2d57bc7872ed0c6
HOW CAN STACKS GOUDKAMP HELP?
Stacks Goudkamp have successfully acted for many individuals injured on council property. If you have been injured on council property, we highly recommend getting in touch with one of our expert public liability lawyers for advice. We offer no obligation consultations and no win no fee arrangements.
Written by Megan Sault
Megan Sault is a lawyer at Stacks Goudkamp. Megan specialises in public liability claims that occur both within Australia and overseas.