June 23, 2022

With what degree of specificity must the risk of a particular injury have been foreseen by a wrong-doer, to neutralise the road authority immunity against liability that is bestowed by Civil Liability Act s 37.

Appellate courts on both sides of the Queensland border have now approved the ingredients essential to a workable antidote.

The NSW Court of Appeal was considering the case of Ricky Eddy whose route to his local Coles for bread and milk on a Sunday evening in April 2017 required his negotiation of two ramps to cross above footpath paving work being conducted by the local council.

The paving work had been done in stages in the course of which temporary ramps were placed along the route to facilitate customers crossing into the shopping centre in which the supermarket was located.

As he ascended the first ramp, it slipped out from under him, causing him to fall heavily to the ground and sustain a serious injury.

The council had twice been notified about problems with ramps in the work area in the weeks leading up to Ricky’s fall.

When he sued the Goulburn council in the NSW District Court, it accepted liability for securing the ramps notwithstanding the work was undertaken by a contractor.

The council had in fact engaged personnel to twice daily check the works including to confirm the ramps were secure. If not, it was the council worker’s task to secure them.

Regardless, the council claimed immunity as “a road authority” under s 45 of the NSW Civil Liability Act which immunises it against all liability “for harm arising from a failure to carry out road work” unless at the time the damage was sustained, it “had actual knowledge of the particular risk the materialisation of which resulted in the harm”.

The provision has its analog in s 37 of the Queensland Civil Liability Act.

Eddy contended the council had indeed been warned about the defects in the ramp by way of the notifications that it had received as to their steepness and instability.

Against that submission, Judge Wendy Strathdee found that the ramp Eddy encountered – being of the smaller, temporary variety – was of a different type to those the subject of the two prior notifications.

She dismissed his claim and ordered he pay the council’s costs of the special hearing convened to decide the liability immunity issue.

The Court of Appeal took a different view, concluding that the second notification council received was likely to have been in respect of the same kind of ramp as that on which Mr Eddy fell.

It had actual knowledge of the risk – so ruled the appeal judges – that the smaller, temporary ramps without handrails which were involved in Mr Eddy’s fall were unstable unless secured.

But the primary judge had also concluded that whatever knowledge it possessed of the lack of safety of the ramps in use, there was no evidence the council knew of the danger of the “particular” ramp on which Mr Eddy fell or even that it was unsecured.

To overcome that finding, Eddy argued on appeal that the council’s actual knowledge of the unsafe features of the type of ramp on which he fell – namely that they could be unstable and dangerous unless secured as was often the case – was sufficient to engage the s 45 antidote because it was knowledge of the “particular” risk.

The appeal judges agreed.

They acknowledged the word “particular” in s 45 required some specificity in relation to the identification of the risk but in “practical reality” did not require knowledge of every aspect of the precise causal pathway that led to the claimant suffering harm.

The court noted with approval the Qld Court of Appeal decision in Goondiwindi Regional Council v Tai.

In that case the appeal judges to the North ruled the council did not need to have knowledge of the particular pothole into which the plaintiff’s motorcycle collided. Rather, the relevant “risk” of which the council was held to have been aware, was of the potential presence of potholes on the causeway that presented a danger to motorists.

Such an outcome was in accord with the provision’s purpose – noted the appeal judges to the South – namely to limit the liability of road authorities for omissions unless they have actual knowledge of the particular danger and have had some opportunity to respond.

Factors likely to be important in this regard include the road authority’s actual knowledge of the location and of the nature of the risk to be found there.

It would though be quite artificial, they observed, to require “backwards-looking” knowledge of “the precise events leading to the damage complained of”.

Just as it is artificial to require a claimant to prove a defendant ought to have foreseen the precise risk of injury – “forward-looking” – when assessing breach of duty; and similarly in relation to assessing what risk may have been “obvious” to a claimant.

The risk of which the Goulburn Council had actual knowledge here “was a very specific risk” – that the smaller, portable ramps being used at the site were unstable, creating a risk of injury, unless secured – in a very specific area.

“That risk did not depend upon the placement of any particular ramp at any specific time,” so ruled Justice Kirk with whom Chief Justice Bell and Justice Gleeson agreed. “Rather, it related to a dangerous feature of the types of ramps being used on the worksite”.

The council did, therefore, have actual knowledge of the particular risk the materialisation of which resulted in the harm within the meaning of the s 45 antidote provision.

The matter remitted to the District Court for determination of Mr Eddy’s substantive claim.

Eddy v Goulburn Mulwaree Council [2022] NSWCA 87 Bell CJ Gleeson JA Kirk JA, 7 June 2022 Read case


Categories: Road & footpath injuries

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