Actual knowledge of a particular risk - a stringent test revisited

19 July 2022

The decision of Ricky Eddy v Goulburn Mulwaree Council and Golden Star Import & Export Pty Ltd [2021] NSWDC 150, has been overturned on appeal with the Court of Appeal holding that prior complaints were sufficient to establish actual knowledge of a particular risk.

In Issue

  • The key issue that arose in the appeal was how the criterion of ‘actual knowledge of a particular risk’ under section 45 of the Civil Liability Act 2002 (NSW)(Act) was to be understood and applied, especially as regards to the level of particularity required.
  • Section 45 of the Act1 states road authorities are not liable for a failure to carry out road work, or to consider carrying out road work unless the authority had actual knowledge of the particular risk (at the time of the alleged failure) the materialisation of which resulted in harm. The legislative intent of section 45 of the Act, was to strike a balance between the community’s legitimate expectation, that public roads will be reasonably safe to traverse, and the extreme consequences which would flow, in revenue terms, if roads authority could be found prima facie liable for injuries arising from risks of which it only had constructive knowledge.2

The background

Repaving works were being completed immediately outside the shopping centre in Goulburn (Centre) in around April 2017. Two different ramps were put in place (one large and one small) around the various entrance points to assist customers gain access to the Centre, so that they could avoid the repaving works. The ramps would be removed when works needed to be completed and then put back into place once the works were finished.

On 27 April 2017, Mr Eddy (Appellant) was attending the Centre when he unfortunately fell and injured himself when the ramp he was walking on slipped out from underneath him (Accident).

Prior to the Accident, Goulburn Mulwaree Council (Respondent) received two notifications regarding the stability and safety of the ramps. The Respondent inspected the ramps following each notification, however, was not able to discern which particular ramp was in issue.

The Respondent sought to rely on the immunity in section 45 of the Act in defence of the claim. Specifically, it had no actual knowledge of the particular risk involved in causing the harm to the Appellant.

The decision at trial

The trial judge found in favour of the Respondent. For details, see here for an earlier published Insight. In arriving at its decision, the court found the ramp encountered by the Appellant was of a different type to those the subject of the two prior notifications and the Appellant had not proven the Respondent had actual knowledge of the particular risk that materialised.

The decision on appeal

The appeal was successful. In arriving at its decision, the Court of Appeal found the second notification received by the Respondent related to the same kind of ramp as the ramp on which the Appellant fell (smaller of the two ramps). Therefore, the Respondent had actual knowledge that the smaller, portable ramps being used at the Centre were unstable, creating a risk of injury, unless secured.

In this case, the Respondent had actual knowledge of a very specific risk in a very specific location. As a result, the Court of Appeal found it did have actual knowledge of the particular risk the materialisation of which resulted in the harm within the meaning of s 45. The Court of Appeal further found the Respondent did not need to hold knowledge of every aspect of the precise causal pathway that led to the Appellant suffering harm.

The matter was remitted to the District Court for determination.

Implications for you

The use of the word “particular” in s 45 of the Act arguably imports a greater level of specificity than arises from other provisions referencing risk in the Act. Specifically, it suggests a focus on the very risk that came home to cause the injury. However, as illustrated in this case, section 45 of the Act should not be understood to require such a high degree of specificity as to make it generally impossible for plaintiffs to satisfy the criterion.

Eddy v Goulburn Mulwaree Council [2022] NSWCA 87

1Which also has analogous equivalents in other jurisdictions – see, for example, section 5Z of the Civil Liability Act 2002 (WA)) and section 37 of the Civil Liability Act 2003 (Qld)
2North Sydney Council v Roman (2007) 69 NSWLR 240.

Ask us how we can help

Receive our latest news, insights and events
Barry Nilsson acknowledges the traditional owners of the land on which we conduct our business, and pays respect to their Elders past, present and emerging.
Liability limited by a scheme approved under Professional Standards Legislation