Orange City Council v Willis [2026] NSWCA 51
[92] Even if that conclusion were not correct, I would nevertheless not uphold the appeal based on s 43A of the Civil Liability Act. Basten JA stated in Curtis v Harden Shire Council (2014) 88 NSWLR 10; [2014] NSWCA 314 (Bathurst CJ agreeing, Beazley P not deciding):
“[235] The question whether [s43A] applies must be approached in two stages. The first is to identify whether and to what extent the liability upon which the defendant is sued “is based on” the exercise of a statutory power conferred on the defendant: s 43A(1). The second stage requires reference to the power so identified to determine whether it is a “special statutory power” as defined in subs (2). To satisfy the definition, it must be a power “conferred by or under a statute” and “of a kind that persons generally are not authorised to exercise without specific statutory authority”: s 43A(2)(a) and (b) respectively.”
[93]Concerning the first stage, the liability upon which the Council was sued was not “based on” the exercise of a statutory power. The risk of harm was the hole in the grass verge that Mr Willis tripped on. The precautions to protect against the risk of harm included filling the hole with dirt, applying contrasting paint, or putting a traffic cone or other cover over the hole. None of these steps requires the exercise of a statutory power. The Council, as the body responsible for the verge, was entitled to take those steps without relying on a special Roads Act power.
[94] Concerning the second stage, if a member of the public were to fill in the hole or put paint or a traffic cone over the hole, they would be able to do so without any specific statutory authority. Indeed, while the Council was the body responsible for the grass verge, it was mowed and maintained at the relevant time by Mr Jaeger, who was employed by Mr Penhall.
[95] If it were necessary to decide, the Council would fail on both limbs of s 43A of the Civil Liability Act. Grounds 6–7 should be dismissed.