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Manifest unreasonableness: s. 43A CLA; s. 45 CLA February 2, 2017

On 1 January 2010, the appellant, John Douglas Mansfield, drove his fully laden water truck along the single lane track of Greens Crossing Road, just south of Stroud. On crossing over a culvert, the left hand side of the bank gave way, resulting in his truck rolling over into the water course injuring him. The Great Lakes Council was the roads authority responsible for the care and maintenance of Greens Crossing Road, empowered to carry out road work pursuant to s 71 Roads Act 1993 (NSW).

Mansfield v Great Lakes Council [2016] NSWCA 204

At trial in the District Court in November 2014, Mr Mansfield claimed that the harm he had suffered was a result of the negligence of the Council as the responsible authority. He claimed that the Council had failed to build a sufficiently large culvert with head walls which could have prevented the erosion and collapse of the embankment. The Council relied on ss 43A and 45 of the Civil Liability Act 2002 (NSW) as providing immunity from liability. The trial judge held that the appellant failed to establish liability on the part of the Council. Mr Mansfield appealed.

The issues for determination on appeal were:

(i)   whether the failure to carry out the road works was “so unreasonable” that no roads authority could consider the omission to be a proper exercise of, or failure to exercise, its statutory powers, pursuant to s 43A Civil Liability Act 2002;

(ii)   whether the Council was immune from liability resulting from a failure to carry out road works, in the absence of “actual knowledge” of its officers as to the particular risk which materialised and which resulted in the harm, pursuant to s 45 Civil Liability Act 2002;

(iii)   whether appropriate road signage could have prevented the resulting harm.

The Court held (per Basten JA, Beazley P and Leeming JA agreeing) in dismissing the appeal.

In relation to (i)

1.   The standard of manifest unreasonableness incorporated into s 43A derives from the adoption of broadly analogous principles from public law. The evidence did not satisfy the court that the failure of the Council to replace the culvert with a larger pipe and head wall was an omission “so unreasonable” that no roads authority could properly consider the omission to be a reasonable failure to exercise its statutory powers, pursuant to s 43A Civil Liability Act 2002: [34]-[36], [40].

2.   Where the Council’s omission involved ignorance as to the factors which would have required it to act, the appellant was required to establish that the ignorance was itself so manifestly unreasonable that no council acting properly could have failed to identify the circumstances calling for action. That he failed to do: [37].

In relation to (ii)

3.   Section 45 has given rise to differing views as to the relevant officer(s) who must have “actual knowledge” of the particular risk the materialisation of which results in harm. The evidence failed to establish that any officer who arguably had the requisite authority within the Council had actual knowledge of the particular risk which materialised: [46]-[52].

4.   A claim against an authority based on a negligent inspection which results in it not having “actual knowledge” of the risk which materialises would be inconsistent with the statutory scheme. Further, it is not the negligent inspection which causes the harm, but the failure to carry out the road works. Finally, there was no evidence that the inspection actually carried out was negligent: [55]-[60].

Nightingale v Blacktown City Council [2015] NSWCA 423 discussed

In relation to (iii)

5.   No basis was raised on appeal to disturb the finding at trial that it was unlikely that a sign indicating the narrowness of the culvert or warning of a weight limit would have deterred the appellant from using the road and so prevented the harm which materialised: [41]-[44].

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