Since 2007, the test for the application of the immunity from liability for roads authorities in s45 of the Civil Liability Act 2002 (CL Act) has been set by the authority in North Sydney Council v Roman (2007) 69 NSWLR 240 (Roman).
In Nightingale v Blacktown City Council  NSWCA 423 (Nightingale), the Court of Appeal, comprising a five member bench, considered and upheld the Roman test. However the test was, once again, not without its critics.
The authority 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 repairs1
In her dissent, McColl JA expressed a different view on the construction of “actual knowledge” finding that:
for the purposes of section 45, the knowledge of those persons who, acting within the scope of their duties, learn of a particular risk under an obligation to report it as part of the roads authority’s system of maintaining the roads under its jurisdiction, should be attributed to the roads authority.2
The findings in Roman were by no means uncontroversial. Although the High Court granted leave to appeal the NSW Court of Appeal’s decision in Roman the appeal was never heard as the matter settled prior to hearing. In Blacktown City Council v Hocking  NSWCA 144 Tobias JA endorsed a refined version McColl JA’s dissent in some obiter remarks.
Nightingale – the facts
Mr Jason Nightingale injured his right foot and ankle in a sunken area of footpath in Balmoral Street Blacktown at about 2:00am on 27 February 2011. Two sections of the footpath pavement had sunken approximately 8-10 cm at their junction. Mr Nightingale sued the Council (as the authority responsible for the care and management of the footpath) for damages alleging that the Council was negligent in failing to repair the footpath and warn pedestrians about the sunken area of the footpath.
Nightingale – the findings in the District Court
In the District Court at first instance Curtis DCJ dismissed Mr Nightingale’s claim giving judgment for the Council finding that the Council was immune from suit by operation of section 45 of the CL Act applying Roman as a binding authority.
Nightingale – the appeal
On appeal a five member bench was convened as Mr Nightingale sought to reargue Roman and the proper construction of section 45 of the CL Act.
Three issues were raised for consideration on appeal as follows:
- What is the proper construction of the actual knowledge exclusion in section 45 of the CL Act and should Roman be reconsidered;
- Whether any actual knowledge could be imputed to the Council in this case; and
- Whether the Council could be liable in any event for being negligent when undertaking its inspection.
Ultimately, in determining the issues on appeal, Mr Nightingale’s appeal was dismissed with costs.
Actual knowledge and binding authority
The majority of the Court (Basten JA, Macfarlan JA and Meagher JA) found that the principle of restraint in departing from previous authority governed the reconsideration of Roman. Notwithstanding the fairly robust consideration given, on application of the principle of restraint, the majority found that the construction of ‘actual knowledge’ in Roman remained binding authority.
However Basten JA admitted that the formulation of the test by Tobias JA in Hocking that the actual knowledge required by s 45(1) must be that of those officers of the authority whose responsibility it is to inspect roads and who have the duty to report their knowledge of the particular risk to those responsible for repairing the road or to consider repairing the road when such a risk is brought to their attention3 was an attractive one but ultimately it was too broad a criterion. Basten JA then continued to find that this case was an inappropriate vehicle for the reconsideration of Roman.
Simpson JA (dissenting) found that on application of the principle of restraint, Roman was plainly wrong such that it should not be followed and that:
The intention of Parliament in enacting s45 in the language it did can adequately, and fairly, be met by the approach to the question of “actual knowledge” on a case by case basis, depending on the evidence of the particular roads authority’s internal organisational arrangements, any actual knowledge in any officer or employee, the level of seniority of that person or those persons, the particular circumstances of the risk of harm in question and the measures necessary or available to alleviate the risk.4
Beazley P also dissented on the Roman reconsideration issue. In her Honour’s view Tobias JA’s Hocking formulation that the question to be determined under s 45 will be whether, depending upon its corporate organisational structure, the roads authority had the knowledge on a case by case basis should be the proper test.
Could actual knowledge be imputed to the council in this case?
A majority of the Court held that the evidence in this case did not meet the test required by the authority in Roman in that there was no evidence that a Council officer within the Roman category had actual knowledge of the state of the footpath.
Simpson JA (dissenting) found that although the evidence did not meet the Roman test, different questions as to actual knowledge would arise if Roman were to be overruled such that the appeal should be allowed and a new trial ordered.
The third issue on appeal was whether the Council could in any event be liable for being negligent when undertaking its inspection.
The appellant argued that although the Council had instituted a reasonable system of inspection the Council could not avail itself of the immunity in section 45 because it had conducted its inspections negligently. This argument was based on the fact that the definition of “carry out road work” in section 45(3) includes the “carrying out of an inspection”.
Basten JA, Macfarlan JA and Meagher JA found that the immunity under s45 applies because the immediate cause of the appellant’s injury was a failure to repair the footpath.
Simpson JA (dissenting) found that the section 45 immunity would not apply to negligently carrying out inspections and could result in a finding of liability against a council, depending on the issue of causation. Because this issue was not considered in the District Court, findings on such questions could not be made.
What this judgment means
Despite being bound to follow Roman having regard to the principle of restraint in departing from previous authority, the “actual knowledge” test in Roman is not without its critics. The test retains a narrow construction of section 45 such the Roads Authority’s immunity will be disengaged only on identification of an officer of the authority who:
- Has authority to carry out the repairs required; and
- Has actual knowledge of the particular risk; and
- The materialisation of the particular risk resulted in the harm.
Although there seems to be significant judicial support for the actual knowledge test to depend on the circumstances of each case, the Roman test for actual knowledge will continue to benefit Roads Authorities. Perhaps some clarification from the High Court of Australia may be warranted. However we may have to wait some time until a matter makes it that far.
This article was written by Jane Hewitt, Partner and John Paul Merlino, Senior Associate.
1 per Bryson and Basten JJA, Roman
2 per McColl JA, Roman
3 per Tobias JA, Hocking
4 per Simpson JA, Nightingale