Tripping up on section 45 of the Civil Liability ActAuthor : Greg Carruthers-Smith (Partner), Michael Fung (Senior Associate)General Liability
Holland v City of Botany Bay Council  NSWSC 1120
WHAT YOU NEED TO KNOW
- This Supreme Court judgment will be of interest to state and council road authorities, and their insurers. The decision provides clarification on when a roads authority (as opposed to “the” roads authority) can engage the special non-feasance protection under s45 Civil Liability Act 2002 (NSW). It also confirmed the content of a road authority’s duty to pedestrians generally
- The special non-feasance protection under s45 can be engaged in respect of a risk which materialises, irrespective of the categorisation of the road, so long as the defendant authority, from a practical perspective, exerted care and control over the area in question.
- Roads authorities do not need to repair every single potential hazard in a road surface as the Court recognises pedestrians must take reasonable care for their own safety.
- The plaintiff, Mrs Holland, tripped and fell while crossing the intersection of Gordon Street and Gardeners Road in Rosebery in June 2011. She sued the City of Botany Bay Council (Council) in the Supreme Court of NSW. Mrs Holland asserted that she in fact fell on Gardeners Road which was a road generally maintained by Roads and Maritime Services (RMS), not the Council.
Whether the Council can rely on s45 CLA
Section 45 of the Civil Liability Act 2002 (NSW) (CLA) affords “a roads authority” protection for harm arising from a failure to carry out road work, or to consider carrying out road work, unless the authority “had actual knowledge of the particular risk the materialisation of which resulted in the harm”.
The parties agreed that the Council was a “roads authority” under the Roads Act 1993 (NSW) (Roads Act); that the Council was not the roads authority for Gardeners Road; and that RMS was the roads authority for that road. The Plaintiff argued that the Council was therefore unable to rely on a special non-feasance defence. However, Schmidt J determined:
- Section 253 Roads Act permitted RMS to engage a Council to provide road repairs as its agent.
- Section 71 Roads Act contemplated a Council carrying out road work on land other than the public roads for which it was the road authority.
- Despite the lack of evidence of any formal arrangement between RMS and the Council for Gardeners Road, the Court inferred some arrangement must have existed, given the Council accepted in interrogatories that it had the “practical care, control and responsibility”.
- Section 45 CLA was not concerned with whether the roads authority ought to have done the work; the Council had control of Gardeners Road and that it was a roads authority under the Roads Act entitled the Council to rely on s45.
- There was no evidence that the Council had actual knowledge of the particular risk which materialised, and as such, section 45 was fatal to the Plaintiff’s case.
CONTENT OF THE DUTY OF CARE
While the Council owed Mrs Holland a duty of care, the duty only extended to protect pedestrians who were taking reasonable care for their own safety.
BREACH OF DUTY OF CARE
The Court found Mrs Holland failed to establish that the Council breached its duty of care because:
- Mrs Holland could not establish that the road at the time of the incident in 2011 was in a dangerous state of disrepair. The Court started with the premise that a fall of itself did not establish the road was dangerous, or that the Council breached its duty. It did not assist her case when she identified up to 3 different areas on the road in which she could have fallen. It is also significant that her liability expert had commented on photos of the road taken in 2014 as if they represented the state of the road in 2011.
- The trip hazard and uneven surface in the road – a 1cm lip – was an obvious risk, notwithstanding that pedestrians also needed to keep an eye out for cars crossing the intersection.
- There was no evidence the Council was on notice of prior falls at the intersection.
- The Court implicitly accepted the Council’s reactive maintenance system – where it responded to reports of fault and then assigned an order of priority depending on the fault – was suitable. The Council relied on evidence of a former employee who gave evidence to the effect that he did not require the 1cm trip hazard to be repaired as it was not considered dangerous and the Council had other repairs to undertake which were of greater priority.
Significantly, the trial judge would have assessed Mrs Holland’s contributory negligence at 80% (had the Council been found liable).
This case should give comfort to road authorities that they do necessarily need to be “the” roads authority to engage s45 CLA. While RMS may have been “the” roads authority, the Council in having control of the road and was doing road works, was sufficient to engage s45. Practically and commercially, this protects an authority that has been delegated control by the primary roads authority.
Courts will not expect roads authorities to fix every potential hazard in a road; pedestrians are required to take reasonable care for their safety.07/09/2017