Defence – immunity – actual knowledge of particular risk…

…the materialisation of which resulted in the harm – local council – public authority – road authority – non-feasance protection

The appellant, Mr Eddy, was going to the Centro Centre (centre) in Goulburn to do some grocery shopping on the evening of 27 April 2017.

For some time, the Goulburn Mulwaree Council (council) had been conducting repaving works on the footpath outside the centre. During the works, temporary ramps were placed over portions of the work to allow customers access to the centre. There were two types of ramps: larger ones with handrails and smaller, portable ones with no handrails.

The council admitted it bore responsibility for securing the ramps in place. As Mr Eddy walked up the smaller type of ramp, it slipped out from under him, causing him to fall and sustain significant injuries. Mr Eddy sued the council in negligence for failing to secure the ramp.

The council was notified of two prior incidents. One incident occurred on 3 April 2017 where a wheelchair user had almost fallen because of the steepness of one of the larger ramps with handrails. The second incident occurred on 20 April 2017 when another wheelchair user advised the ramps were unstable and asked for someone to investigate and look at securing the ramps.

The council relied upon the non-feasance protection in section 45 of the Civil Liability Act 2002 (NSW). The primary judge, Strathdee DCJ, found that section 45 applied and dismissed the claim because:

1. The ramp encountered by Mr Eddy was a different type to those which were the subject of the two prior notifications to the council
2. Mr Eddy had not proven the council was aware of the particular risk which materialised.

Mr Eddy appealed that decision.

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Decision

Appeal allowed with costs. The orders of the District Court dismissing the plaintiff’s claim were set aside. The matter was remitted to the District Court to be determined according to law.

Ratio

The first issue for the court of appeal was whether the ramp encountered by Mr Eddy was a different type to those which were the subject of the two prior notifications. In examining the prior complaints, the court held, on balance, the second notification to the council more likely than not related to the same type of ramp as was the subject of Mr Eddy’s claim and involved the same issue – instability.

The next issue was whether that prior notification to the council of issues with ramps constituted knowledge of the particular risk. That issue required examination of the characterisation of the risk and the level of specificity required. It was not contended that the council knew the precise location of the ramp in question at the time of Mr Eddy’s incident, but that the council knew the smaller ramps used in that area could be unstable unless secured, and they were not always secured.

The court considered the application of Goondiwindi Regional Council v Tai [2020] QCA 119, stating that section 45 (and its Queensland equivalent) can “operate too stringently if required to be applied at a very high level of specificity”.

Considering the context and purpose of section 45, the court had this to say regarding “actual knowledge of the particular risk the materialisation of which resulted in the harm”:

1. “It will usually involve a higher degree of particularity than that required by the s5B breach analysis (assuming that s5B analysis is called for at all, that is, that it is a claim involving negligence).
2. 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).
3. It does not require knowledge of every aspect of the precise causal pathway that led to the claimant suffering harm.”

Kirk JA held (with which Bell CJ and Gleeson JA agreed) that the primary judge erred in finding the council did not have actual knowledge of the particular risk the materialisation of which resulted in the harm. The court held the council did have knowledge that there was a risk the ramp was not properly secured by reason of the second notification and, as such, the section 45 immunity did not apply.

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This compensation law casenote appears courtesy of Travis Schultz & Partners (TSP), where the author, Rachel Last, is a Senior Associate. As part of the firm’s commitment to providing ongoing legal education, TSP practitioners review relevant judgments and prepare case summaries for the legal profession. A free searchable catalogue of compensation law casenotes is available at schultzlaw.com.au/case-summaries (registration required). The full version of the judgments can be found at austlii.edu.au.