Managing the risk from footpath defects and negligence claims: what councils need to know

Since s 45 of the Civil Liability Act 2002 was introduced, councils have enjoyed immunity from negligence claims concerning defective footpaths. However, that immunity depends on knowing whether the defect existed.

The obvious question, of course, is what exactly constitutes “knowledge”. After all, the section refers to “actual knowledge of the particular risk, the materialisation of which resulted in the accident”.

But this definition seems to raise more questions than it answers. For instance, can a plaintiff get around this immunity simply because someone in the council knew about the defect? Or must it be someone reasonably senior or responsible for looking after roads and footpaths?

Two NSW Court of Appeal decisions provide some answers.

The earlier case: Roman

In this 2007 decision, a woman tripped and fell on a defective footpath in North Sydney. The council had instructed its street sweepers to identify any hazards and report them to their supervisor.

The Court of Appeal said that, even if a street sweeper was aware of the defect on which Ms Roman tripped, this didn’t of itself deprive the Council of its s 45 defence. It also found that for a council to know about a defect in the road or footpath, that knowledge must be held by an officer responsible for carrying out remedial work.

North Sydney Council v Roman [2007] NSWCA 27

The recent case: Nightingale

In this 2015 decision, Mr Nightingale was injured after falling on a sunken area of footpath. The Council argued that it had immunity under s 45 of the Civil Liability Act.

To succeed in his claim, Mr Nightingale had to successfully argue that Roman was wrongly decided or that a relevant officer at the Council – someone with responsibility for exercising remedial work in the area the accident occurred – had actual knowledge of the footpath defect on which he had tripped. He was unable to do either.

As a fall-back position, Mr Nightingale then argued that the council’s footpath inspection may have been carried out negligently, or that there may have been other council employees who knew about the defect. As it turned out, the former point was considered, but did not need to be determined: the court regarded council’s system as adequate.

Two of the judges also noted that, even if the council had conducted its inspection negligently, this would not necessarily have deprived it of immunity under s 45.

Nightingale v Blacktown City Council [2015] NSWCA 423

What this means for managing risk

These decisions confirm that the s 45 immunity has real force. Roman and Nightingale both stand as very serious obstacles to any pedestrian wishing to sue a council for an allegedly defective footpath.

Plaintiffs may administer interrogatories (questions which need to be answered on oath before the hearing) in an attempt to avoid their evidentiary and legal problems. While this is relatively unusual in a personal injury claim, Mr Nightingale tried this very tactic. In doing so, he effectively forced the council to identify employees responsible for making decisions about road and footpath repair.

The fact that those council employees were then also prepared to give evidence (which is not always a given) meant that the council could show that they did not have knowledge of the defect in the footpath.

After all, a council may be still able to succeed on a s 45 defence even if it did not have a good system of inspection, or if it had inspected the area negligently: actual knowledge remains the key to the defence.

Author: David Greenhalgh