The grass is always greener on the other side
In June 2011, Mrs Holland tripped and fell whilst crossing the road at an intersection in Rosebery NSW. As a result, she injured her left elbow and back. She sought damages from the City of Botany Bay Council claiming it was negligent in failing to adequately maintain the relevant intersection.
The construction and application of section 45 of the CLA
In June 2011, Mrs Holland tripped and fell whilst crossing the road at the intersection of Gordon Street and Gardeners Road, Rosebery, injuring her left shoulder and back. She sought damages from the City of Botany Bay Council (the Council).
In defence of the claim, the Council relied on section 45 of the Civil Liability Act 2002 (NSW) (CLA), which provides that “a roads authority” is not liable for harm arising from a failure to carry out adequate road works, unless that roads authority had actual knowledge of the particular risk, the materialisation of which, resulted in the harm. Mrs Holland argued that the Council was not entitled to rely on this defence as it was not “the“ roads authority of the road where the accident occurred, and that RMS was.
In issue was whether the Council, or the Roads and Maritime Services (RMS), was the roads authority for Gardeners Road, pursuant to the Roads Act.
The Decision at Trial
The court found that the Council was in fact the roads authority for Gardeners Road at the time of the incident. Whilst several factors were considered, the principal factor was the Council’s answers to Mrs Holland’s interrogatories, in which the Council stated that they had the “…practical care, control and responsibility…” for the section of Gardeners Road where Mrs Holland fell.
With respect to breach of duty of care, the court found that the evidence did not establish that the Council had breached its duty of care. The court considered that the risk of harm was an obvious risk, pursuant to section 5F of the CLA. Although the road was cracked and uneven, the risk posed by an uneven surface at the intersection was physically obvious to pedestrians, including Mrs Holland.
With respect to the section 45 defence, the court found that the Council was entitled to rely on this defence. The evidence did not establish that the Council had actual knowledge of whatever caused Mrs Holland to fall. For the period 2011 to 2014 no complaints were made to the Council with respect to the condition of the road in the section where Mrs Holland fell. Therefore, the Council could not have been said to have actual knowledge of the particular risk.
Implications for you
A party relying on section 45 of the CLA to defend a claim must be able to establish that they are the ‘roads authority’ for the section of road where an incident has occurred. This will be determined as much by the facts of the particular case (and in particular the control exercised over the area) as by any formal contractual arrangement. This case illustrates that a s 45 CLA defence may be available to an authority which exercises practical care and control over a road even if it is not the roads authority pursuant to the relevant legislation.