A local Council had actual knowledge of a trip hazard despite the lack of physical records, due to accepted evidence of a lay witness reporting it in accordance with other similar reports he made concerning public safety issues.
In issue
- What constitutes actual knowledge of a risk under section 45 of the Civil Liability Act 2002 (NSW) (CLA) in circumstances where there is no record of notification.
The background
The plaintiff, Mr Willis, initiated a claim against the Orange City Council (the Council) for injuries sustained on 9 July 2020 when he tripped in a hole in a grass verge between the footpath and the kerb. It was accepted by the Court that a parking sign had been installed in the verge many years prior, but had been removed, leaving a hole which grass had then grown over. The Council denied liability generally and also sought to defend the matter by way of:
- section 43A of the CLA which prevents liability in circumstances where there is an exercise of special statutory power, except in circumstances where it is so unreasonable that no other authority would consider it proper, and
- section 45 of the CLA which prevents liability except in circumstances where an authority had actual knowledge of the risk.
During the trial, the plaintiff called several witnesses, the effect of which confirmed to the trial judge the existence of the hole and that the Council was on notice of the hole.
Interestingly, the Court found the Council was on notice of the hole (despite the Council having no record of a complaint or notification) based on testimony from Mr Ostini, a funeral home manager, who stated that his late employer, Mr Penhall, had discussed the fallen sign and his intention to report it to Council. Mr Ostini described Mr Penhall as diligent in reporting public safety issues and said he had warned others about the hole – which the Court accepted. The Court corroborated this with the fact the Council had a documented history of Mr Penhall having reported other issues to the Council in the past.
Other witnesses confirmed the pole had fallen around Christmas 2019 and was soon removed. Council records showed no complaint from Mr Penhall. Under cross-examination, Council officer Ms McPherson who regularly dealt with Mr Penhall conceded that she did not recall other complaints made by Mr Penhall and admitted it was a possibility she may not have logged the complaint due to being busy during the holiday period.
Other Council witnesses gave evidence that inspections focused on roads and footpaths, not adjacent grass verges, though issues noticed would be reported. They also noted that street signs were often stolen or collected by street sweepers.
The decision at trial
At trial His Honour made the following findings based on the witness evidence put forward by the parties:
- Mr Penhall rang the Council and reported that the sign had come out of the ground and was lying on the ground.
- The report made by Mr Penhall was an oral report and was not recorded in the written records kept by the Council.
- The report by Mr Penhall that a Council sign was lying on the ground logically also informed the Council that there was a hole created in the grass verge.
- That it was the Council that took the fallen sign away, this was inferred because removal occurred shortly after Mr Penhall made his report to the Council.
- No steps were taken by the Council to fill in or cover the hole.
His Honour briefly touched on section 43A, only to say that the conduct of Council was not a case of involving discretionary statutory power.
Although the Council had no record of the sign’s removal or a report of the hole, the Court accepted the plaintiff’s witness evidence. His Honour found that the Council had actual knowledge of the hazard through Mr Penhall’s report and the removal of the sign. As a result, the immunity under section 45 did not apply.
Implications for you
This case underscores the Council’s duty to take reasonable precautions upon risk notification and the importance of maintaining accurate records. It also highlights the impact strong lay witness evidence can have on a case, and how such evidence can be a turning point for a court to make an inference which may ultimately lead to either a successful or failed defence.
Updated on 20 April 2026: On 14 April 2026, the NSW Court of Appeal dismissed the Council’s appeal challenging the factual findings by the primary judge. The Court of Appeal held that the factual findings about the Council’s actual knowledge were supported by the evidence of witnesses. In those circumstances the Council was not entitled to rely on a s 45 CLA defence. In addition, if it had been necessary, the Court of Appeal would have upheld Mr Willis’s Notice of Contention – s 45 no longer protected the Council after the sign was removed because from that point, work to fix the area was not read work but traffic control work because it was an activity connected with the removal of the sign.
