Nightingale v Blacktown City Council [2015] NSWCA 423

The appellant sustained injuries to his foot and ankle as a result of a fall that occurred when he stepped onto a sunken area of footpath in the early hours of 27 February 2011. He contended that his injuries were caused by the negligence of the respondent Council in failing to repair the footpath, adequately light the footpath, warn him of the danger, or barricade the area, and by the Council’s failure to have in place an adequate system of repair and maintenance.
The effect of the Civil Liability Act 2002, s 45 was that the Council, as a “roads authority”, was not liable for any failure to conduct repairs or other roadworks unless, at the time of the injury, it had “actual knowledge” of the particular risk the materialisation of which resulted in the harm to the appellant. In North Sydney Council v Roman [2007] NSWCA 27; 69 NSWLR 240 it was held, by majority, that s 45 required that the relevant “actual knowledge” be that of an officer within the roads authority having the authority to carry out the necessary repairs. McColl JA, in dissent, held that the knowledge of those who are involved in a system of inspection and who have a duty to report their knowledge of a risk or a responsibility for repairs would be sufficient.
The trial judge, Curtis DCJ, gave judgment for the Council on the basis that it was immune from suit by reason of s 45. The appeal raised three issues. The first was the interpretation of “actual knowledge” in s 45 and, particularly, whether the majority view in Roman was in error. The second was whether, on the facts of the present case, “actual knowledge” should be imputed to the Council. The third was whether the Council was nonetheless liable to the appellant because it had conducted inspections but had done so negligently.
Held, dismissing the appeal with costs by majority:
As to the interpretation of “actual knowledge” in s 45:
(1)   The principle of restraint in departing from previous authority is such that Roman should remain binding. [38] (Basten JA); [62]-[65] (Macfarlan JA); [85] (Meagher JA).
North Sydney Council v Roman [2007] NSWCA 27; 69 NSWLR 240; Blacktown City Council v Hocking [2008] NSWCA 144; 144 Aust Torts Rep 81-956; Gett v Tabet [2009] NSWCA 76; 254 ALR 504
(2)   The minority view in Roman has a number of difficulties, including a reliance on an unexplained presumption of a system of inspection and a reversal of the usual approach to statutory construction, and it would result in a criterion which would be uncertain and too broad having regard to the content of the knowledge to which s 45 refers. [25]-[29]; [47] (Basten JA).
North Sydney Council v Roman [2007] NSWCA 27; 69 NSWLR 240; Blacktown City Council v Hocking [2008] NSWCA 144
(3)   The decision of the majority in Roman is plainly wrong such that it should not be followed. The omission of the legislature to specify, in s 45, those officers whose knowledge is to be taken to be that of the authority must be taken to be deliberate and there is no ground upon which such specification may be inserted into the statutory language. The question of “actual knowledge” must be addressed on a case by case basis. [101]-[116] (Simpson JA, dissenting).
Gett v Tabet [2009] NSWCA 76; 254 ALR 504; North Sydney Council v Roman [2007] NSWCA 27; 69 NSWLR 240; Wentworth Securities Ltd v Jones [1980] AC 74; Inco Europe Ltd v First Choice Distribution (a firm) [2000] 1 WLR 586; [2000] 2 All ER 109; Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; 147 CLR 297; Tokyo Mart Pty Ltd v Campbell (1988) 15 NSWLR 275; Bermingham v Corrective Services Commission (NSW) (1988) 15 NSWLR 292; Taylor v The Owners – Strata Plan 11564 [2014] HCA 9; 253 CLR 531; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
(4)   The formulation of a category of persons who are the repository of the relevant knowledge for the purposes of s 45 should be avoided. The section requires, in any given case, a determination of whether a roads authority had actual knowledge of the particular risk the materialisation of which resulted in the harm suffered by the plaintiff. [3]-[4] (Beazley P, dissenting on this point).
North Sydney Council v Roman [2007] NSWCA 27; 69 NSWLR 240; Blacktown City Council v Hocking [2008] NSWCA 144
As to the “actual knowledge” of the Council:
(5)   There was no basis upon which to draw the inference that any of the officers of the Council about whom evidence was led and whose knowledge was relevant for the purposes of the Roman test had “actual knowledge” of the relevant risk. [55] (Basten JA); [77]-[81] (Macfarlan JA); [85] (Meagher JA); [120] (Simpson JA).
Kuhl v Zurich Financial Services [2011] HCA 11; 243 CLR 361
(6)   Were Roman to be overruled, different questions as to the Council’s “actual knowledge” would arise and different evidence would need to be led such that the appeal should be allowed and a new trial ordered. [123], [128] (Simpson JA, dissenting).
As to the Council’s liability for negligent inspections:
(7)   The immunity under s 45 applies because the immediate cause of the appellant’s injury was a failure to repair the footpath. [52] (Basten JA); [82]-[83] (Macfarlan JA); [85] (Meagher JA).
(8)   A construction of s 45 by which a roads authority’s negligent inspection would preclude it from relying on the immunity undermines the purpose of the provision and should not be accepted. [51] (Basten JA); [85] (Meagher JA).
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297
(9)   It is not necessary to finally determine the application of s 45 to negligent inspection by roads authorities as, in the present case, the appellant failed to establish such negligence. [9]-[11] (Beazley P, dissenting on this point).
(10)   The negligent carrying out of inspections would not be subject to the s 45 immunity and could result in a finding of liability in the Council, subject to questions of causation. As findings on those questions have not been made, the appeal should be allowed and a new trial ordered. [125]-[128] (Simpson JA, dissenting).
Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182; Wallace v Kam [2013] HCA 19; 250 CLR 375