Wiltshire, Jeremy --- "Journey claims: the CLA, workers and motor vehicle accidents" [2017] PrecedentAULA 33; (2017) 140 Precedent 29

• The Council relied on s45 of the CLA but called no evidence. Mr Oberlechner relied on expert evidence from Drew Bewsher to establish that the Council had actual knowledge of the particular risk that befell him. Mr Bewsher was an expert in design and management of flooding and draining infrastructure. Throughout his career, he provided floodplain risk management studies and plans for approximately 30 councils in NSW. He had, coincidentally, worked with the defendant Council for some decades. The documentation produced by the Council and Mr Bewsher’s evidence was that:
• In terms of the first issue, Adams J found that the mowing of the verge was not sufficient, of itself, to prove that the requisite knowledge had been acquired. Those maintenance persons are probably no different to the street sweepers in Roman in terms of their roles with respect to the reporting of hazards and authorising repairs. However, his Honour found that Mr Oberlechner had established that a relevant person did have actual knowledge of the particular risk, as Mr Bewsher’s evidence together with the safety risk posed by the headwall established on the balance of probabilities that a Council employee would have noticed the risk posed by the headwall to the safety of pedestrians and informed an officer responsible for authorising road works.26 The Council’s silence on this issue reinforced this conclusion.
• His Honour also found that the particular risk that a pedestrian walking along the nature strip might fail to see the edge of the headwall and fall over it would have been obvious to any person who saw the headwall in that location, including the relevant person within the Council who had authority to arrange the headwall to be fenced.27

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A ROADS AUTHORITY’S QUALIFIED IMMUNITY FROM SUIT

By Carolyn Coventry and James Clohesy

Roads authorities enjoy special protections from liability in most jurisdictions in Australia. Although the common law’s highway immunity was abolished by the High Court in Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512 (Brodie), most legislatures quickly reintroduced at least a qualified immunity in their tort law reforms. This article reviews a number of recent cases in the NSW Court of Appeal to illustrate the scope and operation of the qualified immunity, and to provide some guidance on how plaintiffs may be able to establish the knowledge element required to overcome its operation.

New South Wales,^[1] Tasmania^[2] and Western Australia^[3] have adopted an immunity in broadly the following terms:

‘A roads authority is not liable in proceedings for civil liability to which this Part applies for harm arising from a failure of the authority to carry out road work, or to consider carrying out road work, unless at the time of the alleged failure the authority had actual knowledge of the particular risk the materialisation of which resulted in the harm.’^[4]

The provisions adopted in Queensland,^[5] the ACT,^[6] and Victoria^[7] are analogous to the above. South Australia has adopted a blanket immunity, effectively reinstating the ‘highway immunity’ abolished by Brodie.^[8] The Northern Territory has yet to adopt tort law reform, but in December 2014 the Northern Territory Law Reform Committee made recommendations to this effect (thus reinstating a form of statutory highway immunity – albeit in qualified form).^[9]

For the purposes of this article, the NSW provision will be considered, although the cases discussed are likely to be relevant in other jurisdictions.

Not surprisingly, the statutory immunities have been the subject of judicial consideration. In particular, the NSW Court of Appeal has recently clarified the scope of the immunity in Nightingale v Blacktown City Council (Nightingale)^[10] and Mansfield v Great Lakes Council (Mansfield).^[11] Further, the recent case of Oberlechner v Hornsby Shire Council (Oberlechner)^[12] provides some guidance as to the type of evidence a plaintiff will need to obtain to establish that the immunity does not apply.

HOW DOES THE IMMUNITY OPERATE?

The operation of s45 of the Civil Liability Act 2002 (NSW) (CLA) is best considered from the position of a plaintiff seeking to overcome the immunity. To do this, a plaintiff must prove that the roads authority had actual knowledge of the particular risk that gave rise to his or her harm. The statutory provision involves two key elements – who within the roads authority must have actual knowledge of the risk and what is the nature of the risk that such a person must have actual knowledge of?

Prior to Nightingale, the leading authority on s45 was North Sydney Council v Roman (Roman).^[13] In Roman, the plaintiff had fallen into a large pothole in a street for which the Council was the relevant roads authority. The evidence showed that the Council’s street sweepers had been tasked with reporting any hazards they identified in their duties to the Council, and that they regularly swept the gutters in the vicinity of the hole. Ms Roman asked that the Court infer actual knowledge of the risk from these facts as the sweepers must have seen the pothole. The Council called the supervisors of the street sweepers and those responsible for authorising repairs and these witnesses denied any knowledge of the pothole.

Bryson JA (with whom Basten JA agreed) held that to overcome the immunity, a plaintiff must prove the knowledge resided in the person(s) within the roads authority’s organisation who had the function of carrying out (or approving the carrying out of) the relevant road work.^[14] Clearly, the street sweepers did not have this function, meaning that their actual knowledge of the pothole was insufficient. Further, their obligation to report hazards to their supervisors did not prove that they had in fact notified an appropriate person of the pothole.

McColl JA dissented on this issue and was prepared to find that the knowledge of street sweepers who, acting within the scope of their duties, learn of the particular risk and are under an obligation to report it as part of the roads authority’s system of maintaining the roads, should properly be considered the knowledge of the roads authority.^[15]

Ms Roman appealed to the High Court and was granted special leave; however, her case subsequently settled and the hearing in the High Court did not proceed.^[16] The majority’s view in Roman was later the subject of criticism by Tobias JA in Blacktown City Council v Hocking (Hocking), who broadly agreed with McColl JA’s dissenting judgment.^[17]

In Nightingale, the NSW Court of Appeal convened a five-member bench to consider the correctness of Roman. The facts of the case were that Mr Nightingale fell as a result of stepping into a sunken area of a footpath. There was evidence from Blacktown City Council that certain employees with the ability to carry out road work had inspected the general location of the accident in the six months prior to the accident. However, these employees denied knowledge of the defect.

By a 3:2 majority,^[18] the Court refused to depart from the approach in Roman. Both Basten JA and Beazley P nonetheless analysed the approach proposed by McColl JA in Roman and Tobias JA in Hocking. Both considered it better to avoid formulation of the category of persons who are the repository of the relevant knowledge as each case will turn on its facts and, in particular, cases involving the immunity will turn on the particular risk in question. Simpson JA in dissent was of a similar view.

In any event, there was insufficient evidence for Mr Nightingale to establish actual knowledge of the defect in the footpath in light of the denials of such knowledge by the employees who inspected the accident location prior to the accident. These facts raise the question as to whether this case was the appropriate vehicle with which to challenge Roman.

Nightingale also considered the level of abstraction at which the court will assess the ‘particular risk the materialisation of which resulted in the harm’, which is the risk that the roads authority must have actual knowledge of if the immunity is not to apply. Basten JA observed that the language of the statute meant that the knowledge must be of the ‘particular risk’, not knowledge of the same type or kind of risk^[19] and that not all defects pose a risk of injury, particularly for persons using reasonable care for their own safety.^[20] His Honour also stated that:

‘the immunity will be engaged not merely where the roads authority did not have actual knowledge of the physical hazard, but where, if it did have such knowledge, it failed to appreciate that the hazard constituted a particular risk within the scope of its duty of care’.^[21]

Accordingly, to overcome the operation of the immunity a plaintiff must:

1. identify those within the authority with the function of carrying out (or approving the carrying out) of the relevant road work;

2. prove that the person(s):

2.1. knew of the particular hazard which caused the plaintiff’s injury; and

2.2. appreciated that the hazard constituted a specific risk to a class of persons that includes the plaintiff.

WHAT ACTS OR OMISSIONS DOES THE IMMUNITY PROTECT?

A question that arose and was not determined in Nightingale was whether the immunity was confined to a failure to carry out the road work or whether it was broad enough to encapsulate negligent inspection that failed to identify a hazard. Only one judge (Basten JA) addressed this question in Nightingale in any great detail.

This issue was resolved in Mansfield by Basten JA (with whom Beazley P and Leeming JA agreed). By reading the immunity as a whole, Basten JA found that inspections form the basis for a roads authority’s knowledge (or lack thereof) of a particular risk. His Honour was of the view that carving out inspections from the immunity would sit awkwardly with the requirement of actual knowledge for the immunity not to apply. Accordingly, a roads authority’s failure to carry out an inspection or its failure to exercise reasonable care in carrying out an inspection which results in its having no actual knowledge of the particular risk of harm is protected by the immunity.

Basten JA regarded this as similar to the argument he rejected in Nightingale: that the immunity extended only to a failure to carry out road works and not to the negligent carrying out of road works and observed that ‘the distinctions between action and omission, and between misfeasance and nonfeasance, rarely provide a watertight dichotomy’.^[22] These comments are a clear indication that the courts will broadly interpret those matters that are to be regarded the subject of the statutory immunity.

While not addressed in Mansfield and strictly obiter, the views of Beazley P in Nightingale arguably provide a more compelling reason to that advanced by Basten JA for the statutory immunity to extend to cover negligent inspection of a road. In Nightingale, Beazley P directed her attention to the meaning of ‘carry out road work’ in s45(3) of the CLA, which provides as follows:

‘“carry out road work” means carry out any activity in connection with the construction, erection, installation, maintenance, inspection, repair, removal or replacement of a road work within the meaning of the Roads Act 1993’.

Her Honour simply noted that inspection falls within the definition of ‘carry out road work’ in s45(3), which would suggest that the immunity was clearly intended to extend to negligent inspection.^[23]

SO HOW CAN A PLAINTIFF GET THROUGH THE s45 GATEWAY?

These examples show that plaintiffs bear a heavy onus to prove that the roads authority had the requisite knowledge such that the immunity will not apply. As McColl JA noted in Collins v Clarence Valley Council:

‘Because “actual knowledge” is required, reliance on imputed or constructive knowledge is precluded. However, as the primary judge held, a finding of actual knowledge can be made by inference and, if the inference is fairly available and the roads authority calls no evidence to rebut it, the Court can more comfortably find actual knowledge.’^[24]

In cases where the authority calls specific evidence on the issue, the result is likely to turn on the cross-examination of the relevant officer(s). However, once the immunity is invoked, the onus falls on a plaintiff to show where the knowledge might have resided. As such, there is no obligation on an authority to call any evidence on the issue and a litigation strategy that may be adopted is to remain silent on the issue.

In Nightingale, the roads authority’s silence was dealt with through interrogatories. However, they were vague, which ultimately worked to the plaintiff’s disadvantage.^[25] In any event, the Council in that case called positive evidence that it did not have relevant knowledge.

Another strategy, which was adopted in Oberlechner, is the use of expert evidence. The facts of this case were that Mr Oberlechner was walking his dogs in January 2011 and departed from his usual route to walk down a grass nature strip. Mr Oberlechner’s dogs strayed and he followed them and fell over an unguarded 3.5 to 4m headwall for a culvert which channelled flood water (for which the Council was responsible). Mr Oberlechner claimed that a safety fence ought to have been constructed along the headwall to guard against the risk that a pedestrian may inadvertently fall into the culvert (one was later erected).

The Council relied on s45 of the CLA but called no evidence. Mr Oberlechner relied on expert evidence from Drew Bewsher to establish that the Council had actual knowledge of the particular risk that befell him. Mr Bewsher was an expert in design and management of flooding and draining infrastructure. Throughout his career, he provided floodplain risk management studies and plans for approximately 30 councils in NSW. He had, coincidentally, worked with the defendant Council for some decades. The documentation produced by the Council and Mr Bewsher’s evidence was that:

1. The headwall was constructed in late 1979 and the Council assumed ownership of the pipeline infrastructure, including the headwall, well before January 2011.

2. Once acquired, the Council would have had particular interest in the design and construction of this drainage system because it was envisaged that it would be responsible for the culvert (and headwall) into perpetuity.

3. There was no specific indication that the Council’s employees inspected the site during the acquisition process but Mr Bewsher said that he would expect that they did so before approving the design of the culvert (a step required in the acquisition) given the size of the adjoining sub-division and the nature of the drawings relied upon for the design of the culvert and headwall.

4. Mr Bewsher mentioned the likelihood that Council employees would have mown the grass verge in the vicinity of the headwall at regular intervals.

5. Most other headwalls in the Council’s care and control (including ones smaller than the impugned headwall) were fenced.

6. Mr Bewsher had never seen an analogous situation in Hornsby (that is, a headwall without a railing on it) and was staggered to find that the headwall had not been fenced; not only because it was a danger but because this was markedly inconsistent with the Council’s attitude to safety that he had observed.

Mr Oberlechner argued that in light of Mr Bewsher’s evidence, the Court could infer that the relevant person(s) within the Council had the requisite knowledge, even though he could not identify with precision the persons within the Council that were charged with the decision to fence the culvert. The latter issue did not concern Adams J, as none of the authorities suggested that it was necessary for a plaintiff to name or identify individuals as distinct from establishing that there is a class of individuals with the relevant function. His Honour held that proving that one or more members of the class more probably than not had actual knowledge of the requisite matters was sufficient.

In terms of the first issue, Adams J found that the mowing of the verge was not sufficient, of itself, to prove that the requisite knowledge had been acquired. Those maintenance persons are probably no different to the street sweepers in Roman in terms of their roles with respect to the reporting of hazards and authorising repairs. However, his Honour found that Mr Oberlechner had established that a relevant person did have actual knowledge of the particular risk, as Mr Bewsher’s evidence together with the safety risk posed by the headwall established on the balance of probabilities that a Council employee would have noticed the risk posed by the headwall to the safety of pedestrians and informed an officer responsible for authorising road works.^[26] The Council’s silence on this issue reinforced this conclusion.
His Honour also found that the particular risk that a pedestrian walking along the nature strip might fail to see the edge of the headwall and fall over it would have been obvious to any person who saw the headwall in that location, including the relevant person within the Council who had authority to arrange the headwall to be fenced.^[27]

These cases provide some guidance on how a plaintiff might seek to establish that a roads authority had actual knowledge of the particular risk of harm that befell him or her, such that the statutory immunity will not apply. However, attempts to put a gloss on how to characterise a roads authority’s acts or omissions to argue that its liability does not arise from the carrying out of road work are not likely to be successful. It remains the case that the immunity provides significant protection from liability for roads authorities, even if they were negligent.

Carolyn Coventry is a Senior Associate at Sparke Helmore Lawyers, Sydney. PHONE [phone] EMAIL [e-mail].

James Clohesy is a lawyer at Sparke Helmore Lawyers, Sydney. PHONE [phone] EMAIL [e-mail].

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^[1] Section 45 of the Civil Liability Act 2002 (NSW).

^[2] Section 42 of the Civil Liability Act 2002 (Tas).

^[3] Section 5Z of the Civil Liability Act 2002 (WA).

^[4] For ease of reference, we will refer to the New South Wales provision, s45 of the Civil Liability Act 2002, throughout this article. The position in Western Australia and Tasmania ought to follow that in New South Wales. Considering possible differences in the immunities across the various jurisdictions is otherwise beyond the scope of this article.

^[5] Section 37 of the Civil Liability Act 2003 (Qld).

^[6] Section 113 of the Civil Law (Wrongs) Act 2002 (ACT).

^[7] Section 102 of the Road Management Act 2004 (Vic).

^[8] Section 42 of the Civil Liability Act 1936 (SA).

^[9] NTLRC Report 41: Tort Law Reform in the Northern Territory, December 2014.

^[10] [2015] NSWCA 423; (2015) 91 NSWLR 556.

^[11] [2016] NSWCA 204.

^[12] [2017] NSWSC 23.

^[13] [2007] NSWCA 27; (2007) 69 NSWLR 240.

^[14] Roman at [130] (see also [156] per Basten JA).

^[15] Ibid, [60].

^[16] Roman v North Sydney Council [2007] HCATrans 405 (3 August 2007).

^[17] [2008] NSWCA 144; [2008] Aust Torts Rep 81-956.

^[18] Basten, Macfarlan and Meagher JJA; Beazley P doubting, Simpson JA dissenting.

^[19] Nightingale at [41].

^[20] Ibid, [44].

^[21] Ibid, [46].

^[22] Mansfield at [59].

^[23] Nightingale at [8].

^[24] [2015] NSWCA 263 at [158].

^[25] Nightingale at [66] to [81].

^[26] Oberlechner at [31].

^[27] Ibid, [32].