Oberlechner and how the narrow construction in Roman can be met

18 August 2017

In our recent article we reported on the test for when the statutory immunity of Roads Authorities under s45 of the Civil Liability Act 2002 (CL Act) will be disengaged when the leading authority set in North Sydney Council v Roman (2007) 69 NSWLR 240 (Roman) was challenged in Nightingale v Blacktown City Council [2015] NSWCA 423 (Nightingale).

The test in Roman

By a majority, the Court of Appeal held in Roman that a proper construction of section 45 of the CL Act required that in order for the immunity of the roads authority 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.

In the recent case of Oberlechner v Hornsby Shire Council [2017] NSWSC 23 the Supreme Court found that the test as set out in Roman had been met so as to disengage the statutory immunity afforded to the defendant council under both sections 45 and 43A of the CL Act.


On the night of 29 January 2011 at approximately 9:30pm the Plaintiff Mr Alfred Oberlechner took his two dogs for a walk, as was his usual practice.  During the walk, the Plaintiff’s dogs strayed off the grass nature strip to sniff in some bushes and grass that was about waist high.

The Plaintiff followed his dogs into the grass and then fell into a drain 3 metres in depth that was located about 4 metres from the edge of the sealed surface of the road and caused serious injuries to both himself and his dogs.

The drain which was owned by the Council was unfenced and there were no safety warnings to alert the public of any risk.

Evidence and knowledge of the risk

Evidence was given by Mr Drew Bewsher, a hydrological engineer with significant experience of the stormwater systems owned, constructed and maintained by the Council all over the Council’s Local Government Area.

Mr Bewsher gave evidence that in his experience the omission of a safety fence at the location of drain where the plaintiff has sustained the injuries was inconsistent with Council’s approach elseweher in the Shire.  In fact it was Mr Bewsher’s evidence that he had never seen a situation like that in Hornsby without a railing on it and that he was staggered to learn that it was not fenced.

It was also Mr Bewsher’s evidence that the Council would have been aware of the safety risk of the drain at the very minimum when the Council become the owner of the drain after its construction because if the council was going to takeover the asset and they were going to be responsible for it in perpetuity, the Council would certainly have not taken it over without inspecting it to make sure they were happy with its design.

Mr Bewsher gave further evidence of the Council’s preparation of a shire wide Asset Management Plan for its stormwater assets in 2006 that applied to the Shire between 2005 and 2015, the time during which the incident occurred.

There was also evidence from the Council’s records that the drain had been inspected on previous occasions (although not for the specific issue of safety).

The Council offered no evidence at all in relation to the drain.

Court’s conclusions on the CL Act

Having considered the evidence of Mr Bewsher and that the Council had actual knowledge of the risk posed by the drain, his honour Adams J concluded:

  • Taking the evidence as a whole, the Council had actual knowledge of the material risk posed by the drain such that the Roman test was satisfied and the statutory immunity afforded to the defendant council under both sections 45 and 43A of the CL Act was disengaged;
  • No public authority could reasonably conclude that it would be a reasonable exercise of its powers to leave the drain unfenced;
  • The risk of someone falling over the edge of the road into this drain was both significant and foreseeable;
  • The probability that harm would occur if care were not taken by the erection of a fence to prevent someone from falling over the edge, is high; and
  • Had the fence that ought to have been erected been so erected, the plaintiff’s injuries would not have occurred.

This case demonstrates that whilst the test in Roman is considered by many to provide too high a bar for the disengagement of the statutory immunity, it is not a bar that cannot be met.

This article was written by Jane Hewitt, Partner and John Paul Merlino, Special Counsel.

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