Prior complaints not sufficient to establish Council was aware of “particular risk”

06 July 2021

In the recent decision of Ricky Eddy v Goulburn Mulwaree Council and Golden Star Import & Export Pty Ltd [2021] NSWDC 150, a public authority was afforded protection in respect of a claim brought by a pedestrian who fell on a temporary ramp on the road, despite receiving prior complaints about the ramps being unsafe.

In Issue

  • The relevant issue for determination by the court was whether section 45 of the Civil Liability Act 2002 (NSW) (CLA) applied as a defence to the claim. The court was required to consider whether the first defendant had actual knowledge of the particular risk of harm, the materialisation of which resulted in the alleged harm to the plaintiff. This preliminary issue was heard before the commencement of the trial.

The background

The plaintiff sought damages, interest and costs from the first defendant, Goulburn Mulwaree Council (the Council) and the second defendant, Golden Star Import & Export Pty Ltd (Golden Star), on the basis that the plaintiff sustained injuries on 27 April 2017 at approximately 5:45pm when he fell on a ramp outside a shopping centre on Auburn Street in Goulburn in the State of New South Wales (the centre). The plaintiff’s claim against Golden Star was resolved before the hearing.

The plaintiff alleged that the Council had the care, control and management of certain roads, footpaths and associated works situated in the City of Goulburn. The Council entered into a contract with Golden Star for the paving of Auburn Street. Part of the works involved the repaving or paving outside the centre. In the course of that work there were temporary yellow ramps to allow entry and egress from the centre. The plaintiff’s evidence was that when he was walking across the ramp at the entrance to the centre, he noticed that there was work being carried out and that the old walkway had been pulled up. As he proceeded to walk across the ramp, it moved and the plaintiff fell down. The plaintiff gave evidence that he had been to the centre on previous occasions and had noticed that the work had been going on for some time.

Responsibility for securing the ramps rested with the Council in accordance with the contract. The Council had a system whereby a representative of the Council would check the works twice daily. An inspection of the works area was conducted on 27 April 2017 at about 7:20pm and nothing untoward was found with any of the ramps. This was approximately 95 minutes after the plaintiff alleged that he fell. When the area was inspected the following morning, it was noted that a new ramp was placed at the relevant location by persons unknown and was unsecure. The contractors denied placing the ramp on the kerb as it would be unnecessary to do so because there was a disabled ramp easily accessible adjacent to it. The plaintiff gave evidence that there were in fact 2 ramps at the point at which he fell.

Prior to the plaintiff’s fall on 27 April 2017, there had been 2 previous complaints made to the Council with regard to temporary ramps at the centre in that they were unsafe for use by people in wheelchairs.

The decision at trial

The judge was not satisfied that the ramp the plaintiff fell on was the same ramp that the previous complaints pertained to, based on evidence that an additional ramp was discovered by a Council representative on the day after the incident.

The judge found that the particular risk of which the Council ought to have had actual knowledge, was the risk of the ramp being susceptible to movement because it was not properly installed or secured. Although the judge accepted that the prior notifications made to the Council could be construed as giving the Council actual knowledge of the risk posed to people in wheelchairs using the ramps, the judge was not satisfied that these were the same ramps the plaintiff fell on. Alternatively, even it was the same ramp, it was not accepted that the notifications were sufficient to import to the Council actual knowledge of the risk particularised by the plaintiff in his pleadings - that is, the risk of a person using the ramps sustaining a physical injury because the ramps were not properly installed or secured and were therefore susceptible to movement. In the circumstances, the judge was not satisfied that the plaintiff had proven that the Council was aware of that specific risk. The plaintiff’s claim failed as the court found that the Council was entitled to the immunity provided by s 45 of the CLA.

Implications for you

When it comes to special non-feasance protection for local authorities, each case turns on its own facts. However, this judgment demonstrates that courts in New South Wales are still prepared to adopt a strict construction of “actual knowledge” when considering whether a public authority was aware of a specific risk of harm. The decision is also a reminder that the plaintiff bears the onus of proving, on the balance of probabilities, that a public authority had actual knowledge of a particular risk.

Ricky Eddy v Goulburn Mulwaree Council and Golden Star Import & Export Pty Ltd [2021] NSWDC 150

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