Nightingale v Blacktown City Council

[2015] NSWCA 423

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Nightingale v Blacktown City Council [2015] NSWCA 423

Hearing dates:

3 September 2015

Decision date:

23 December 2015

Before:

Beazley P at [1];
Basten JA at [13];
Macfarlan JA at [57];
Meagher JA at [85];
Simpson JA at [86]

Decision:

Appeal dismissed with costs.

Catchwords:

TORTS – negligence – injury suffered after fall caused by sunken area of footpath – whether Council liable for failure to repair

 

TORTS – Civil Liability Act 2002 (NSW), s 45 – whether Council had “actual knowledge” of the particular risk the materialisation of which resulted in harm

 

STATUTORY INTERPRETATION – Civil Liability Act 2002 (NSW), s 45 – meaning of “actual knowledge” of Council – whether required knowledge of particular class of persons – whether knowledge of those with authority to conduct repairs required – sufficiency of knowledge of those involved in system of inspection

 

STATUTORY INTERPRETATION – Civil Liability Act 2002 (NSW), s 45 – whether protection extends to inspections carried out negligently

  COURTS – principles relating to departure from prior authority

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 5B, 5G, 5M, 45
Interpretation Act 1987 (NSW), s 33

Cases Cited:

Blacktown City Council v Hocking [2008] NSWCA 144; 144 Aust Torts Rep 81-956
Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512; [2001] HCA 29
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297
Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86
Gett v Tabet [2009] NSWCA 76; 254 ALR 504
Gumana v Northern Territory (2007) 158 FCR 349; [2007] FCAFC 23
Kuhl v Zurich Financial Services [2011] HCA 11; 243 CLR 361
Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290; [2001] HCA 14
North Sydney Council v Roman HCA [2007]; NSWCA 27; 69 NSWLR 240
Potter v Minahan (1908) 7 CLR 277
RJE v Secretary to the Department of Justice [2008] VSCA 265; 192 A Crim R 156
Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; [2007] HCA 42
Roman v North Sydney Council [2007] HCATrans 405
Strong v Woolworths [2012] HCA 5; 246 CLR 182
Tabet v Gett (2010) 240 CLR 537; 210 HCA 12

Texts Cited:

Antonin Scalia and Bryan A Garner, Reading Law: The Interpretation of Legal Texts (Thomson/West, 2012) at 318

 

Brendan Lim, “The Normativity of the Principle of Legality” (2013) 37 Melb U L Rev 372 at 384

 

Dan Meagher, “The Common Law Principle of Legality in the Age of Rights” (2011) 35 Melb U L Rev 449 and “The Principle of Legality as Clear Statement Rule: Significance and Problems” (2014) 36 Syd L Rev 413

 

Matthew Groves and Greg Weeks, “Substantive (Procedural) Review in Australia” in Hanna Wilberg and Mark Elliott, The Scope and Intensity of Substantive Review (Hart Publishing, 2015) 133 at 152-159

  P B Maxwell, On the Interpretation of Statutes (Sweet & Maxwell, 4th ed, 1905) at 121-122

Category:

Principal judgment

Parties:

Jason Leslie Nightingale (Appellant)
Blacktown City Council (Respondent)

Representation:

Counsel:
M Daley (Appellant)
J E Sexton SC/D Priestley (Respondent)

  Solicitors:
Brydens Lawyers (Appellant)
McCulloch & Buggy (Respondent)

File Number(s):

2014/297061

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

New South Wales

Date of Decision:

18 September 2014

Before:

Curtis DCJ

File Number(s):

2013/182167

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant sustained injuries to his foot and ankle as a result of a fall that occurred when he stepped onto a sunken area of footpath in the early hours of 27 February 2011. He contended that his injuries were caused by the negligence of the respondent Council in failing to repair the footpath, adequately light the footpath, warn him of the danger, or barricade the area, and by the Council’s failure to have in place an adequate system of repair and maintenance.

The effect of the Civil Liability Act 2002, s 45 was that the Council, as a “roads authority”, was not liable for any failure to conduct repairs or other roadworks unless, at the time of the injury, it had “actual knowledge” of the particular risk the materialisation of which resulted in the harm to the appellant. In North Sydney Council v Roman [2007] NSWCA 27; 69 NSWLR 240 it was held, by majority, that s 45 required that the relevant “actual knowledge” be that of an officer within the roads authority having the authority to carry out the necessary repairs. McColl JA, in dissent, held that the knowledge of those who are involved in a system of inspection and who have a duty to report their knowledge of a risk or a responsibility for repairs would be sufficient.

The trial judge, Curtis DCJ, gave judgment for the Council on the basis that it was immune from suit by reason of s 45. The appeal raised three issues. The first was the interpretation of “actual knowledge” in s 45 and, particularly, whether the majority view in Roman was in error. The second was whether, on the facts of the present case, “actual knowledge” should be imputed to the Council. The third was whether the Council was nonetheless liable to the appellant because it had conducted inspections but had done so negligently.

Held, dismissing the appeal with costs by majority:

As to the interpretation of “actual knowledge” in s 45:

(1)   The principle of restraint in departing from previous authority is such that Roman should remain binding. [38] (Basten JA); [62]-[65] (Macfarlan JA); [85] (Meagher JA).

North Sydney Council v Roman [2007] NSWCA 27; 69 NSWLR 240; Blacktown City Council v Hocking [2008] NSWCA 144; 144 Aust Torts Rep 81-956; Gett v Tabet [2009] NSWCA 76; 254 ALR 504

(2)   The minority view in Roman has a number of difficulties, including a reliance on an unexplained presumption of a system of inspection and a reversal of the usual approach to statutory construction, and it would result in a criterion which would be uncertain and too broad having regard to the content of the knowledge to which s 45 refers. [25]-[29]; [47] (Basten JA).

North Sydney Council v Roman [2007] NSWCA 27; 69 NSWLR 240; Blacktown City Council v Hocking [2008] NSWCA 144

(3)   The decision of the majority in Roman is plainly wrong such that it should not be followed. The omission of the legislature to specify, in s 45, those officers whose knowledge is to be taken to be that of the authority must be taken to be deliberate and there is no ground upon which such specification may be inserted into the statutory language. The question of “actual knowledge” must be addressed on a case by case basis. [101]-[116] (Simpson JA, dissenting).

Gett v Tabet [2009] NSWCA 76; 254 ALR 504; North Sydney Council v Roman [2007] NSWCA 27; 69 NSWLR 240; Wentworth Securities Ltd v Jones [1980] AC 74; Inco Europe Ltd v First Choice Distribution (a firm) [2000] 1 WLR 586; [2000] 2 All ER 109; Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; 147 CLR 297; Tokyo Mart Pty Ltd v Campbell (1988) 15 NSWLR 275; Bermingham v Corrective Services Commission (NSW) (1988) 15 NSWLR 292; Taylor v The Owners – Strata Plan 11564 [2014] HCA 9; 253 CLR 531; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355

(4) The formulation of a category of persons who are the repository of the relevant knowledge for the purposes of s 45 should be avoided. The section requires, in any given case, a determination of whether a roads authority had actual knowledge of the particular risk the materialisation of which resulted in the harm suffered by the plaintiff. [3]-[4] (Beazley P, dissenting on this point).

North Sydney Council v Roman [2007] NSWCA 27; 69 NSWLR 240; Blacktown City Council v Hocking [2008] NSWCA 144

As to the “actual knowledge” of the Council:

(5)   There was no basis upon which to draw the inference that any of the officers of the Council about whom evidence was led and whose knowledge was relevant for the purposes of the Roman test had “actual knowledge” of the relevant risk. [55] (Basten JA); [77]-[81] (Macfarlan JA); [85] (Meagher JA); [120] (Simpson JA).

Kuhl vZurichFinancial Services [2011] HCA 11; 243 CLR 361

(6)   Were Roman to be overruled, different questions as to the Council’s “actual knowledge” would arise and different evidence would need to be led such that the appeal should be allowed and a new trial ordered. [123], [128] (Simpson JA, dissenting).

As to the Council’s liability for negligent inspections:

(7) The immunity under s 45 applies because the immediate cause of the appellant’s injury was a failure to repair the footpath. [52] (Basten JA); [82]-[83] (Macfarlan JA); [85] (Meagher JA).

(8) A construction of s 45 by which a roads authority’s negligent inspection would preclude it from relying on the immunity undermines the purpose of the provision and should not be accepted. [51] (Basten JA); [85] (Meagher JA).

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297

(9) It is not necessary to finally determine the application of s 45 to negligent inspection by roads authorities as, in the present case, the appellant failed to establish such negligence. [9]-[11] (Beazley P, dissenting on this point).

(10) The negligent carrying out of inspections would not be subject to the s 45 immunity and could result in a finding of liability in the Council, subject to questions of causation. As findings on those questions have not been made, the appeal should be allowed and a new trial ordered. [125]-[128] (Simpson JA, dissenting).

Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182; Wallace v Kam [2013] HCA 19; 250 CLR 375

Judgment

1. BEAZLEY P: I have had the advantage of reading in draft the reasons of Basten JA and of Macfarlan JA. Subsequent to preparing my own reasons, I have also had the advantage of reading in draft the reasons of Simpson JA. I adopt for the purposes of these reasons the statement of facts as found by the trial judge as recorded by Macfarlan JA at [5].

2. Essentially, two matters arose for consideration on the appeal. First, whether leave should be granted to re-argue North Sydney Council v Roman [2007] NSWCA 27; 69 NSWLR 240. Secondly, whether, and in any event, the Civil Liability Act 2002 (NSW), s 45 had any application to the facts of the case.

3. Basten JA has analysed the views expressed in the majority and the minority judgments in North Sydney Council v Roman: see at [16]-[19], and has also referred to the observation of Tobias JA in Blacktown City Council v Hocking [2008] NSWCA 144 at [223]: see at [30] and [39] below. Whilst, like Basten JA, I consider that the criteria suggested by Tobias JA in Blacktown City Council v Hocking has an attractiveness, I would prefer to avoid any formulation as to the category of persons who are the repository of the relevant knowledge for the purposes of the section.

4. Rather, I consider that s 45 requires, in any given case, a determination of whether a roads authority had actual knowledge of the particular risk the materialisation of which resulted in the harm suffered by the plaintiff. Different road authorities will organise the arrangements whereby they carry out their statutory and other responsibilities in varying ways. The question to be determined under s 45 will be whether, depending upon its corporate organisational structure, the roads authority had that knowledge.

5. A further issue which arose on the appeal was whether the Council was nonetheless liable because it conducted its inspections negligently. The trial judge did not determine that question. It will be necessary to return to that question later in these reasons.

6. The appellant accepted that a plaintiff could not complain that a council had failed to inspect or had failed to institute a reasonable system of inspection. He contended, however, that the Council in this case had carried out inspections of its roads and footpaths but had done so negligently. He submitted that the Council’s liability was therefore not excluded by s 45.

7. This raises a difficult question as to the proper construction and application of s 45 where there are two possible causes of a person’s injury, the first being the negligent carrying out of roadworks, which does not fall within the protection afforded by s 45(1); and the second being a failure to carry out roadworks of which it had no knowledge. For the purposes of causation, the existence of a non-negligent cause does not preclude a plaintiff succeeding if there is also a negligent cause of the harm suffered: Strong v Woolworths [2012] HCA 5; 246 CLR 182.

8. The difficulty that the question raises is particularly acute in a case such as this, where the roadworks that were alleged to have been carried out negligently were inspections of the Balmoral Street footpath. “Inspection” falls within the definition of “roadworks” in s 45(3).

9. However, as I am not satisfied on the facts of this case that the appellant established that the inspection of its roads, including Balmoral Street, was negligent, it is not necessary to finally determine that matter. The negligence alleged was:

“… Failing to inspect or regularly inspect the area given the high pedestrian volume, the closeness to the Blacktown central business district, the presence of trees and the absence of lighting.

… Failing to have any adequate system of inspection, repair and maintenance of footpaths.”

10. Contrary to the pleaded allegations, there was a system of inspection, of which Mr Brancato, the Council’s asset inspector at the time of the accident, gave evidence. There is also the difficulty that the appellant accepted that a failure to institute a reasonable system of inspection would fall within the immunity for which s 45 provides. As to the actual system of inspection, Mr Brancato said that a main road, such as Balmoral Street, would be inspected about three times a year. Mr Brancato had inspected Balmoral Street by driving along the road, but from his position in the car did not observe any defect in the footpath. As the cross-examination proceeded, it was put that the defect was so obvious that Mr Brancato must have been able to see it. The suggested inference was that if he did not, he must have been negligent in his carrying out of the inspection.

11. In my opinion, that does not necessarily follow. Nor did it follow that the manner in which the inspection was carried out was not adequate. Neither of the other two witnesses called by the Council, Mr Clark, a civil works inspector, and Mr Barglik, a civil engineer, had responsibility either for devising or implementing a system of inspection. There was no evidence as to what an adequate system of inspection involved. In short, there was insufficient evidence adduced, or attempted to be adduced, to enable such a case to succeed, should it be available.

12. I agree with the orders proposed by Macfarlan JA.

13. BASTEN JA: In the early hours of 27 February 2011, the appellant, Jason Nightingale, lost his footing and twisted his ankle when he stepped into a depression in the footpath on Balmoral Street, Blacktown. The depression appears to have occurred at the junction of two concrete slabs. The variation from the level was described as a drop of approximately 70-100mm, with each side sloping back to the level over what appeared from photographs to be a little under one metre in one direction and something in the order of 1.5 metres in the other direction, although no measurements were taken.

14. The trial judge dismissed the plaintiff’s claim against the Council on the basis that he had failed to prove that the Council, as the relevant “roads authority”, had “actual knowledge of the particular risk the materialisation of which resulted in the harm.” In those circumstances, s 45 of the Civil Liability Act 2002 (NSW) stated that the roads authority was “not liable” for such harm if it arose from “a failure of the authority to carry out road work, or to consider carrying out road work”.

Issues on appeal

15. There was an issue on the appeal as to whether the alleged liability in negligence was in fact based on a failure to carry out road work, an issue which will be addressed shortly. The principal issue sought to be raised on the appeal concerned the evidence which might be sufficient to establish actual knowledge of the particular risk on the part of the Council.

16. In North Sydney Council v Roman [1] Bryson JA stated:

“Whether there was a failure to carry out roadwork or to consider carrying out roadwork, in the case of the Council as of any other roads authority which is incorporated, can only be addressed by examining the Council's organisation and identifying persons who in fact have the function of carrying out roadwork, or of considering carrying out roadwork. In the workings of s 45(1), those are the persons whose actual knowledge of a particular risk is relevant.”

1. (2007) 69 NSWLR 240; [2007] NSWCA 27 at [130].

17. I expressed the view in Roman that it was necessary to distinguish between “the state of mind of a person said to constitute the company for a particular purpose and the state of mind of a person for whose acts the company is vicariously liable.”[2] Having sought to analyse the historical context in which s 45 was enacted, I expressed the view, consistently with the reasons of Bryson JA, that “it would seem that actual knowledge must be found in the mind of an officer within the council having delegated (or statutory) authority to carry out the necessary repairs.”[3]

    2. Roman at [149].

    3. Roman at [156].

18. McColl JA, dissenting on this point, stated:[4]

“In my view, for the purposes of s 45, the knowledge of those persons who, acting within the scope of their duties, learn of the particular risk under an obligation to report it as part of the roads authority’s system of maintaining the roads under its jurisdiction, should be attributed to the roads authority. On the facts of this case, such people were sufficiently ‘relevantly connected’ with discharging the appellant’s responsibility for carrying out road work to hold it prima facie liable in tort where it can be found, whether by direct proof, or inference, that they had actual knowledge of the particular risk which materialised in harm to the plaintiff.”

4. Roman at [60].

19. The reference to holding the authority “prima facie liable in tort” involved an elision: a finding that a roads authority had actual knowledge of the particular risk does not give rise to liability, but merely removes an immunity.

20. The appellant sought leave to challenge the correctness of the reasoning of the majority in Roman. A five judge bench was convened to consider that application.

21. There are several factors which favour a reconsideration of the construction of the legislation upheld in Roman. First, the High Court granted special leave to appeal from the decision in Roman, although the claim was settled before the matter came on for hearing. [5] Secondly, one other member of the Court (Tobias JA) has favoured reconsidering the decision and preferring the minority opinion. [6] Thirdly, the facts in Roman were in any event distinguishable. North Sydney Council had a somewhat informal system whereby street sweepers were required to report potholes in the street requiring repair. It was inferred that a street sweeper probably observed the pothole. In the present case, Blacktown City Council had a more formal system of inspection. It was arguable that the distinction drawn in Roman might require reconsideration on the different factual situation revealed in the evidence in this case.

    5. Roman v North Sydney Council [2007] HCA Trans 405; Hasler v Singtel Optus Pty Ltd [2014] NSWCA 266 at [62] (Leeming JA), Gleeson JA agreeing at [7].

    6. Blacktown City Council v Hocking [2008] NSWCA 144; Aust Torts Rep 81-956 at [223].

22. The primary arguments against reconsideration are twofold. First, because the alternative approaches revealed in Roman were finely balanced, it could not be said that the majority view was clearly wrong (a test not addressed in Hocking), in which case the authority should be allowed to stand. Secondly, because the evidence did not establish that those with the specific function of carrying out inspections of roadways had actual knowledge of the particular defect, this case presented an inappropriate vehicle for reconsidering the approach adopted in Roman.

Criteria for reconsidering earlier authority

23. The principles to be applied by this Court in considering whether to depart from its own earlier authority were given careful consideration in Gett v Tabet. [7] In particular, the Court accepted the approach adopted by Gleeson CJ with respect to a question of statutory construction in Clutha Developments Pty Ltd v Barry [8] that “it is generally accepted that before it is appropriate for an appellate court to overrule one of its own earlier decision[s] it must entertain a strong conviction as to the incorrectness of the earlier decision.”[9] The Court did not favour the criterion of the decision being “plainly wrong” which “tends to focus attention on the jurisprudential nature and character of the error … or the conviction as to the existence of the error.”[10] There being a broader range of relevant considerations, including those of certainty, predictability and transparency of the law, the Court preferred the broader language adopted by Nettle JA in RJE v Secretary to the Department of Justice [11] that there must be “compelling reasons” for departure from an earlier authority. (No issue was raised concerning the appropriateness of this approach when the matter went to the High Court, the appeal being dismissed. [12] )

Reconsidering Roman

7. [2009] NSWCA 76; 254 ALR 504 at [261]-[301].

8. (1989) 18 NSWLR 86 at 100G.

9. Gett at [284].

10. Gett at [301].

11. [2008] VSCA 265; 192 A Crim R 156 at [104].

12. Tabet v Gett (2010) 240 CLR 537; [2010] 210 HCA 12.

24. In Roman, McColl JA stated:

“[55] It is a reasonable inference that s 45 was intended to prevent roads authorities from being held liable in Brodie [13] circumstances merely for failing to take reasonable steps to look for such risks as might reasonably be expected to arise. On the other hand, s 45 presupposes a system of inspection by which a roads authority can acquire actual knowledge of particular risks. That system of inspection must exist as an essential adjunct to the roads authority’s obligation to keep roads in a reasonable state of repair at least implicit, if not expressed, in its function of carrying out road work.

[56] Section 45, in my view, indicates a legislative intent 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 a roads authority could be found prima facie liable for injuries arising from risks of which it had only constructive knowledge. So much, at least, is evident from the structure of the provision and the Second Reading Speech.

[57] Nothing in s 45, in my view, precludes the conclusion that the actual knowledge which will be attributed to the roads authority will at least be that of those relevantly involved in the authority’s system of inspecting roads who have a duty to report their knowledge of a particular risk and/or who have a responsibility for repairing the road, or to consider repairing the road, if such a risk is brought to their attention.”

13. Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512; [2001] HCA 29 (“Brodie”) (citation added).

25. There are difficulties with that approach. First, the reasoning at [55] accepts that s 45 provides immunity for a road authority from liability “merely for failing to take reasonable steps to look for such risks as might reasonably be expected to arise.” That is, there will be no liability for a negligent failure to inspect or for carrying out an inspection negligently so that a risk is not identified. The next sentence states that “s 45 presupposes a system of inspection”. The source of that assumption is not identified in the language of s 45. Rather the obligation to inspect appears to be derived from the function of undertaking road work under the Roads Act 1993 (NSW). Whereas there is undoubtedly a statutory power to undertake road work, the translation of that power into a statutory obligation to carry out inspections is not explained. Nor is it a duty which can lightly be assumed. No argument was presented in the present case to justify the existence of such a statutory duty, nor its scope.

26. In fact there is a reference to “inspection” in s 45: it appears in the definition of the term “carry out work” in s 45(3), a point relied on by the appellant for a separate argument addressed below. A failure to inspect thus falls within the scope of the immunity, which might be thought inconsistent with a presupposition of a “system of inspection”.

27. Secondly, the “balance” identified at [56] may be accepted, but it is not clear that it assists in resolving the specific question as to the attribution of actual knowledge within a roads authority.

28. Thirdly, the reasoning at [57] reverses the usual approach to statutory construction: the conventional approach is to identify the ordinary meaning of the text, read in its statutory and historical context. That approach does not commence with an assumption that a particular result is to be preferred, in the absence of language which “precludes” that conclusion. (It will be necessary to return to possible justifications for such an approach.)

29. Fourthly, the criterion then adopted is stated to be a minimum (it will “at least” include…); it does not identify persons with a function of carrying out inspections, but refers, somewhat more imprecisely, to those “relevantly involved in the authority’s system of inspecting roads”, albeit limited by reference to a “duty to report their knowledge of a particular risk”. (The final categories of officers identified fall within the scope of the majority approach.)

30. Some of the uncertainties just noted are removed by the test proposed by Tobias JA in Hocking where he rephrased the criteria adopted by McColl JA in Roman to read: [14]

“…the actual knowledge required by s 45(1) must be that of those officers of the authority whose responsibility it is to inspect roads and who have the duty to report their knowledge of the particular risk to those responsible for repairing the road or to consider repairing the road when such a risk is brought to their attention.”

14.    Hocking at [223(j)].

31. However, Tobias JA appeared to accept the negative approach to construction adopted by McColl JA. Thus, whilst finding that both constructions identified in Roman were “consistent with the language of [s 45(1)]”, [15] he nevertheless rejected the majority approach because “the language of s 45(1) does not mandate such a construction.” [16] Accordingly, it is necessary to consider further the principled basis upon which such a negative approach to the question of construction may be justified.

    15.    Hocking at [223(f)].

    16.    Hocking at [223(g)].

32. The reason given was that the “narrow” approach was one which “would unnecessarily and unjustifiably place a premium on ignorance which the language of the section does not require”. [17] However, the criterion of immunity identified by the section is indeed “ignorance”, or lack of “actual knowledge of the particular risk”. As acknowledged by McColl JA in Roman, it is precisely the failure of a roads authority to identify risks of which it ought to be aware for which immunity is granted.

    17.    Hocking at [223(j)].

33. An alternative approach, which the appellant implicitly sought to derive from the comments of Kirby J during the High Court special leave application in Roman, is that sometimes described as the principle of derogation (that is that statutes which derogate from the common law should be strictly construed) [18] or, in more modern Australian parlance, the principle of legality. [19] The source in Australian jurisprudence is usually located in the judgment of O’Connor J in Potter v Minahan [20] quoting Maxwell on Statutes: [21]

“One of these presumptions is that the legislature does not intend to make any alteration in the law beyond what it explicitly declares …, either in express terms or by implication; or, in other words, beyond the immediate scope and object of the Statute. In all general matters beyond, the law remains undisturbed. It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used.”

18.    Antonin Scalia and Bryan A Garner, Reading Law: The Interpretation of Legal Texts (Thomson/West, 2012) at 318.

19.    See Dan Meagher, “The Common Law Principle of Legality in the Age of Rights” (2011) 35 Melb U L Rev 449 and “The Principle of Legality as Clear Statement Rule: Significance and Problems” (2014) 36 Syd L Rev 413; see also Matthew Groves and Greg Weeks, “Substantive (Procedural) Review in Australia” in Hanna Wilberg and Mark Elliott, The Scope and Intensity of Substantive Review (Hart Publishing, 2015) 133 at 152-159.

20. (1908) 7 CLR 277 at 304.

21.    P B Maxwell, On the Interpretation of Statutes (Sweet & Maxwell, 4th ed, 1905) at 121-122.

34. The application of the principle in Potter was in fact quite muted. The question was whether a person, once a member of the Australian community, who departed temporarily and sought to return, was an “immigrant” for the purposes of the Immigration Restriction Act 1901 (Cth). O’Connor J stated that “the meaning of the word ‘immigrant’ must not be extended beyond its ordinary signification if such interpretation would affect rights of Australian-born subjects to a greater extent than the scope and purpose of the Act require.” [22] There is an important distinction between reading down and not extending the ordinary meaning of a word.

    22.    Potter at 306.

35. Age and repetition have given the statement from Maxwell on Statutes a patina of authority which may not be warranted. It derived from a legal culture sceptical of the inroads being made by statute on judge-made law. [23] A more measured approach, adapted to modern times, was preferred by McHugh J in Malika Holdings Pty Ltd v Stretton. [24] McHugh J noted the need to be cautious in identifying “fundamental principles”, but more importantly adopted a different approach with respect to laws which “infringe rights”, noting that that was what Parliament commonly does. [25] He doubted the utility in the present age of such a clear statement rule of construction with respect to laws that “infringe rights, or depart from the general system of law”. McHugh J continued:[26]

“In those areas, the rule is fast becoming, if it is not already, an interpretative fiction. Such is the reach of the regulatory state that it is now difficult to assume that the legislature would not infringe rights or interfere with the general system of law.”

23. R v Janceski (2005) 64 NSWLR 10; [2005] NSWCCA 281at [62] (Spigelman CJ)

24. (2001) 204 CLR 290; [2001] HCA 14 at [27]-[30].

25.    Malika Holdings at [28]; see also Brendan Lim, “The Normativity of the Principle of Legality” (2013) 37 Melb U L Rev 372 at 384.

26. Malika Holdings at [29].

36. As noted by the Full Court of the Federal Court (French, Finn and Sundberg JJ) in Gumana v Northern Territory, [27] “[i]n this core area of fundamental rights and freedoms the interpretative presumption retains strength and vitality.” The Court then adopted from Malika McHugh J’s articulation of a “surer guide to the legislative intention in areas of legislation dealing with ordinary rights” being “to construe the language of the enactment in its natural and ordinary meaning, having regard to its context – which will include other provisions of the enactment, its history and the state of the law – as well as the purpose which the enactment seeks to achieve.”[28]

    27. (2007) 158 FCR 349; [2007] FCAFC 23 at [97].

    28. Malika Holdings at [30].

37. That approach should be adopted with respect to a law enacted in 2002 to deal with rights effectively created by a decision of the High Court in 2001, the sole purpose of s 45 being to contain and restrict the effect of the judgment in Brodie. In this context, judicial opinions as to the effect of economic incentives created by an expanded tortious liability cannot govern the construction of a statute self-evidently intended to limit that liability.

38. A further difficulty with the reasoning in Hocking is that in stating that the minority approach in Roman “is to be preferred” over that of the majority, Tobias JA did not approach the question of departure from existing authority in accordance with the principle of restraint referred to above. (Although Hocking pre-dated Gett, it did not pre-date most of the authorities discussed in Gett.)

39. Despite the foregoing criticisms, there is an attraction in the formulation adopted by Tobias JA and set out at [30] above. Within a body responsible for the maintenance of roads, it is to be expected that there will be a division of functions. One function is the identification of the need for repairs or reconstruction. Another is the identification of defects. The latter may be assigned to officers who do not have decision-making power in relation to the carrying out of road work. Both functions may involve a delegation of the authority’s powers in a manner which would justify the conclusion that the knowledge of any of those officers is the knowledge of the authority.

Actual knowledge of the particular risk

40. However, before adopting such an approach, it is necessary to address a further point of statutory construction not adequately considered in any of the judgments in Roman, or the subsequent cases. That is, the content of the “knowledge” to which the section refers. The point is significant because it will determine the scope of the factual inquiry to be undertaken on a case by case basis.

41. What is required is knowledge of “the particular risk” the materialisation of which resulted in the harm suffered by the plaintiff. The phrase “risk of harm” is to be found in many provisions of the Civil Liability Act, but in almost all cases it refers to a risk of which a person knew or ought to have known. [29] In some sections, reference is made to the “type or kind of risk”, rather than the particular risk,[30] and to the distinction between warnings in relation to a particular risk as compared with “a general warning of risks”. [31] The different statutory context of s 45 renders an exercise in seeking to achieve uniformity of meaning with other provisions unhelpful. What is clear is that for the purpose of s 45 it is necessary to identify the “particular risk” which materialised; it is not sufficient to identify a type or kind of risk. (That is not the same as requiring identification of the particular harm suffered; there may well be a variety of harms within the scope of a risk which has materialised.)

    29. See, eg, s 5B(1)(a) in Pt 1A of the Act.

    30. Section 5G(2) dealing with an “obvious risk”.

    31. Section 5M(5).

42. In relation to negligence, there will not usually be a need to distinguish between particular physical circumstances and the nature of the risk which they carry. In s 45, such a distinction may be critical.

43. Roads and footpaths tend to be divided by kerbing; pedestrian crossings are marked by white painted lines, and roadways have gutters. Each of these features involves a risk to the unwary pedestrian of tripping, slipping or misstepping. (Nor are the risks insignificant in an age where people walk with their eyes fixed on electronic devices.) Can it be said that the roads authority has “actual knowledge” of the particular risks involved with all such structures? In Brodie, the duty of a roads authority with respect to pedestrians was articulated in the following terms: [32]

“The formulation of the duty in terms which require that a road be safe not in all circumstances but for users exercising reasonable care for their own safety is even more important where, as in Ghantous, the plaintiff was a pedestrian. In general, such persons are more able to see and avoid imperfections in a road surface. It is the nature of walking in the outdoors that the ground may not be as even, flat or smooth as other surfaces. As Callinan J points out in his reasons in Ghantous, persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as uneven paving stones, tree roots or holes. Of course, some allowance must be made for inadvertence.”[33]

32.    Brodie at [163] (Gaudron, McHugh and Gummow JJ).

33. See also Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; [2007] HCA 42 at [46] and [47] (Gummow J).

44. Section 45 identifies circumstances in which a road authority is “not liable” for harm: it therefore operates only in circumstances where a duty of care arises. Consistently with the purpose of the provision (to confer a limited immunity on roads authorities) the “particular risk” of which the authority must have “actual knowledge” refers to an imperfection or unevenness in a surface rendering the surface unsafe for pedestrians exercising reasonable care for their own safety. Accordingly, whether a duty of care arises will depend upon an evaluative judgment as to the nature of the physical hazard in question.

45. Because the subject matter of the knowledge is so defined, it is doubtful that, in the circumstances revealed in Roman, such knowledge could properly be identified in a street sweeper. A roads authority will wish to know about all kinds of defects in its roadways and footpaths (and other infrastructure for which it is responsible): not all defects or features requiring maintenance will constitute “particular risks” for the purpose of s 45.

46. Absent the immunity, a plaintiff injured on a roadway would need to establish that (a) his or her injury was caused by a hazard of which the roads authority knew or ought to have known; (b) a reasonable roads authority knowing of the hazard would have appreciated that it created a risk of harm to a pedestrian exercising reasonable care for his or her own safety, and (c) identified precautions should have been taken to ameliorate the risk. By contrast, 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. On the facts of the present case, the plaintiff needed to establish, in order to disengage the immunity, not merely that the Council knew there was an unevenness in the pavement where the plaintiff lost his balance, but that the unevenness constituted a risk to a pedestrian exercising reasonable care for his or her safety.

47. That has two consequences in the present case. First, it would permit a variation in the category of persons whose knowledge is to be imputed to the Council. But that variation would not extend simply to persons whose function it is to inspect roads, looking for defects. It would only reformulate the category of officers beyond those responsible for authorising road works, to those responsible for identifying risks to safety. That is because not all defects constitute “particular risks” for the purposes of s 45. It follows that the criterion proposed by Tobias JA as locating relevant knowledge in any officer whose responsibility it is to inspect roads (and to report the results of the inspections) is too broad a criterion.

48. Secondly, it makes this an inappropriate vehicle for reconsideration of Roman, because the assumption on which the trial was run was that it was sufficient to identify actual knowledge in the roads authority of the particular physical feature of the pavement which caused the plaintiff to take a misstep. Thus, a potentially permissible variation in the established criterion was not addressed. In other words, the reconsideration of the operation of s 45 warranted by this analysis cannot assist the appellant because the factual inquiry, to the extent that it went beyond the formulation permitted by Roman, did not address a sufficiently precise issue.

Failure to exercise reasonable care in carrying out inspections

49. The second legal issue raised on the appeal denied that the appellant’s claim arose from “a failure of the authority to carry out road work”, as opposed to the negligent carrying out of road work. The point of statutory construction relied upon by the appellant involved two aspects of s 45. The first was that the immunity extended only to a failure of the authority to carry out road work, or to consider carrying out road work, namely, in the language of the general law, “non-feasance”. The immunity did not extend to a failure to exercise reasonable care in actually carrying out road work.

50. The second step in the argument relied upon the definition of the term “carry out road work” in s 45(3). The phrase is defined to mean “carry out any activity in connection with the construction, … maintenance, inspection, repair … of a road work within the meaning of the Roads Act 1993.” (Emphasis added.) The appellant relied upon the breadth of the connection phrase (in connection with) and the specific reference to “inspection” in the definition. He contended that the failure to exercise reasonable care in carrying out an inspection was not a failure to carry out road work, but was the negligent carrying out of road work.

51. The logic of the appellant’s argument may be accepted. Indeed, its legitimacy gains support from the fact that the definition is taken from the Dictionary to the Roads Act, but with the deliberate insertion of the additional term “inspection”. Nevertheless, faithful as the exercise is in importing the whole of the definition into the operative provision, the result cannot be accepted. If the construction of the section adopted by this Court in Roman is said to put a premium on ignorance, the proposed construction raises the premium to another level by discouraging any attempt to carry out inspection of roads. More importantly, by removing the immunity in a circumstance where the authority does not have actual knowledge, not because it has failed to carry out an inspection (which would be protected) but because it has carried out an inspection without reasonable care is to undermine the primary purpose of the provision. Such a construction does not “promote the purpose or object underlying” the section; a construction which would promote the statutory purpose is to be preferred. [34] The appellant’s construction should not be accepted.

    34. Interpretation Act 1987 (NSW), s 33; see also Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320-321 (Mason and Wilson JJ).

52. Put another way, as explained by Macfarlan JA, the failure of the authority which resulted in harm was not the failure to take reasonable care in inspecting the pavement, but the failure to rectify the unevenness in the pavement.

Conclusions

53. It follows that I would grant leave to the appellant to reargue the construction of s 45 of the Civil Liability Act adopted in Roman. However, to the extent that the characterisation of the officers within a roads authority whose knowledge may constitute the knowledge of the roads authority may require variation, this is not an appropriate case to embark on a reformulation. Any weakness in the reasoning in Roman derived from the failure to identify with sufficient precision the subject matter of the actual knowledge which would disengage the immunity.

54. Undertaking that exercise, the relevant state of mind must relate to a feature of a road work which would constitute a hazard to a person (relevantly for present purposes, a pedestrian) exercising reasonable care for his or her own safety. The nature of the exercise required to identify such a hazard is material to the identification of officers whose knowledge should be treated as that of the roads authority for the purposes of s 45. That issue was not addressed on the facts of the present case.

55. To the extent that the factual challenge raised by the appellant is not addressed above, I agree with the reasons of Macfarlan JA for rejecting the challenge.

56. I agree with Macfarlan JA that the appeal should be dismissed and that the appellant must pay the respondent’s costs in this Court.

57. MACFARLAN JA: At about 2.00am on 27 February 2011 Mr Jason Nightingale, the appellant, injured his right foot and ankle when he fell as a result of stepping into a sunken area of a public footpath at Balmoral Street, Blacktown. Two sections of the pavement, each around one metre in length, had sunk approximately eight to 10 centimetres at their junction. Mr Nightingale sued the respondent Council, being the authority having responsibility for the care, control and management of the footpath, for damages for its alleged negligence in failing to repair the footpath and to warn pedestrians about the sunken area.

58. On 18 September 2014, Curtis DCJ rejected the appellant’s claim and gave judgment for the Council. His Honour did so on the basis that the Council was immune from suit by reason of s 45 of the Civil Liability Act 2002 (NSW) (“the Act”) which is in the following terms:

“45    Special non-feasance protection for roads authorities

(1)   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.

(2)    This section does not operate:

(a)   to create a duty of care in respect of a risk merely because a roads authority has actual knowledge of the risk, or

(b)   to affect any standard of care that would otherwise be applicable in respect of a risk.

(3)   In this section:

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.

roads authority has the same meaning as in the Roads Act 1993.”

59. As his Honour was bound to do, the primary judge applied the decision of this Court in North Sydney Council v Roman [2007] NSWCA 27; 69 NSWLR 240 in which it was held, by majority, that for a Council to have the “actual knowledge” referred to in s 45(1) of the Act, “that actual knowledge must be found in the mind of an officer within the council having delegated (or statutory) authority to carry out the necessary repairs” (at [156] per Basten JA, Bryson JA concurring). In dissent, McColl JA held that, for the purposes of s 45(1):

“57   … the actual knowledge which will be attributed to the roads authority will at least be that of those relevantly involved in the authority’s system of inspecting roads who have a duty to report their knowledge of a particular risk and/or who have a responsibility for repairing the road, or to consider repairing the road, if such a risk is brought to their attention.”

60. The High Court granted special leave to appeal from the decision in Roman ([2007] HCATrans 405) but the appeal was settled before it was heard. In Blacktown City Council v Hocking [2008] NSWCA 144, Tobias JA, in obiter dicta, agreed with McColl JA’s conclusion in Roman (at [224]).

61. In the present case, Mr Nightingale appeals, in essence, on the following bases:

1. The Court should reconsider its decision in Roman and adopt McColl JA’s dissenting view expressed in that case.

2. Even if it does not, the appeal should be allowed because:

1. The primary judge should have found that the Roman test was satisfied on the evidence in the present case.

2. Alternatively, s 45 of the Act does not confer immunity upon the Council because the appellant’s injuries were caused by the Council negligently conducting inspections of the footpath and, as this amounted to the negligent performance of an activity that fell within the definition of “road work” in s 45, s 45(1) does not apply, it only being concerned with a failure to carry out road work.

SHOULD NORTH SYDNEY COUNCIL v ROMAN BE OVERRULED?

62. This Court will not depart from one of its earlier decisions unless it is demonstrated that the decision is plainly wrong. This requires the later Court to form a strong conviction “that the earlier judgment was erroneous and not merely the choice of an approach which was open, but no longer preferred” and that the “nature of the error … can be demonstrated with a degree of clarity by the application of correct legal analysis” (Gett v Tabet [2009] NSWCA 76; 254 ALR 504 at [294]).

63. It is unnecessary to examine in detail the two strands of judicial reasoning in relation to s 45 of the Act as I do not consider that, even if the views of McColl and Tobias JJA were preferred, it could be said that the majority’s reasoning in Roman was plainly wrong in the sense described in Gett v Tabet.

64. Basten JA’s reasoning in Roman was, effectively, that because s 45(1) of the Act confers immunity where a Council, as a “roads authority”, fails to carry out road work, the exception in respect of “actual knowledge” of the defect giving rise to a risk should logically only apply where an officer responsible for exercising the Council’s power to carry out the work had that knowledge. At the least, this is an arguably correct approach to the proper construction of that sub-section. In Hocking, Tobias JA accepted that this approach is not inconsistent with the language of the provision, although his Honour nevertheless preferred the alternative construction in light of other considerations.

65. In these circumstances, the appeal must be determined on the basis that Roman remains a binding authority.

DID A COUNCIL OFFICER WHO HAD AUTHORITY TO UNDERTAKE THE REPAIRS HAVE ACTUAL KNOWLEDGE OF THE RELEVANT RISK?

The evidence in the Court below

66. The appellant tendered the Council’s answers to particular interrogatories which indicated:

1. That Mr Tony Brancato, Mr John Clark, Mr Paul Farrager and Mr Paul Barglik were the Council employees “responsible for decisions concerning road and footpath repair” in the relevant area as at 27 February 2011.

2. That, in answer to a question as to whether those persons walked over the footpath in the vicinity of the place where the accident occurred, or drove on the adjacent roadway, in the six months prior to 27 February 2011, Mr Brancato and Mr Clark would have walked over the footpath and driven on the roadway in the performance of their duties, that Mr Farrager did not walk over the footpath but would have driven on the roadway, and that Mr Barglik was unable to recall walking on the footpath but may have driven on the roadway.

67. Mr Brancato’s oral evidence was as follows:

1. He was a maintenance inspector with the Council at the time of the appellant’s accident and was responsible for inspecting the area in which the relevant footpath was located.

2. He would usually inspect the footpaths by driving past in a car as slowly as he could. He was required to inspect 120 kilometres of roads and footpaths per month and each area would be inspected about three or four times a year.

3. It was conceivable that he might not have noticed a footpath defect such as that which caused the appellant’s fall because he was required both to inspect the footpath and the road, and to watch the traffic, whilst driving alone in the vehicle. Further, he said that people walking on the footpath or a truck on the road could have obscured his view.

4. Although he said at one stage of his evidence that he “issued the work to contractors”, when asked specifically whose decision it was for work to be done, Mr Brancato identified the overseer at the depot, Mr Col Brabham. Later, he said that it was his job to detect areas that might be unsafe and to report them, but not to have the repairs done.

5. He could not recall the last time prior to the appellant’s accident that he had walked over the relevant footpath.

6. He denied that he had any knowledge of the relevant defect prior to the appellant’s accident.

68. Mr Clark gave evidence that at the relevant time he was a civil works inspector with the Council and that he did not undertake any routine inspections of footpaths as part of his duties. Instead, when advised of a footpath defect, he would inspect it and then decide what repairs should be done.

69. He denied that he had walked over the relevant footpath in the six months prior to the accident and that he had any knowledge of the defect that caused the appellant’s fall. The appellant submitted that this evidence was inconsistent with the Council’s answers to interrogatories (see [66] above). However, those answers were ambiguous as to when Mr Clark (and also Mr Brancato) last walked over the relevant footpath as they did not clearly state that they had done so in the previous six months (or during any longer period in which it was shown that the defect existed). As a result, the appellant was left with no evidence from which a positive inference of the required knowledge could be drawn.

70. Mr Barglik gave evidence that he was a civil engineer with the Council and had authority to decide whether repair works should be undertaken once a defect was reported to him.

71. He said that he would not have walked over the relevant part of the footpath in the six months prior to the appellant’s accident but would probably have driven past it. He said that he certainly did not see the defect but when the cross-examiner asked him whether it was possible that he had, he said that he did not think that he had seen it but stated: “I don’t remember”.

72. The appellant tendered photographs from the Google Maps street view website, apparently taken in December 2009, showing the defective footpath substantially as it was on 27 February 2011.

73. Council records in evidence indicated that Balmoral Street (and therefore its footpaths also) was inspected on 9 December 2009, 1 April and 11 August 2010 and 10 January 2011. The notation “no comments” appearing in the records in relation to those inspections indicated that no defects were detected.

74. The appellant tendered internal Council emails dated 21 April 2011 and 17 May 2011. The first referred to photographs taken after the accident and said that “the evidence looks damning”. The second stated that Mr Brancato only noticed the defective footpath on about 20 April 2011. In a statement that was corrected in the answers to interrogatories, the email also stated that Mr Brancato would ordinarily drive to work along Balmoral Street. Mr Brancato confirmed in evidence that this was not correct.

The judgment at first instance

75. On the basis that Roman indicated that only the knowledge of the Council employees’ with the authority to authorise necessary repairs was relevant, the primary judge found that “the only relevant mind was that of Mr Barglik. Mr Barglik says that he did not know of the defect, and its obvious nature does not provide sufficient reason to disbelieve him” (Judgment [28]).

76. His Honour rejected the appellant’s alternative argument that the Council was liable, despite s 45(1) of the Act, if it performed inspections of the footpath negligently. He held that the appellant’s injury arose out of the Council’s failure to rectify the defective footpath and that s 45(1) therefore rendered it immune from suit.

Consideration

77. The effect of Mr Brancato’s evidence, when taken as a whole (see [67] above), was that his role was to identify and report defects but not to order their repair. The primary judge was accordingly correct to find that his knowledge was not relevant for the purposes of the Roman test. In any event, the evidence did not establish that he had knowledge of the relevant defect.

78. Mr Clark was however a relevant person for this purpose because he did have authority to approve repairs. The primary judge erred in not recognising this but because there was no basis for concluding that Mr Clark had actual knowledge of the relevant defect, the error is of no significance.

79. Mr Barglik was also a relevant person for this purpose, which his Honour recognised. However, there was again no basis for concluding that he had actual knowledge of the relevant defect. The appellant pointed out that, when pressed in cross-examination, Mr Barglik conceded that it was possible that he was aware of the defect, although he had no recollection of being aware of it (see [71] above). However, neither this, nor any other evidence, provided a basis for a positive inference that Mr Barglik was relevantly aware.

80. The appellant correctly submitted that the evidence suggested that there were other Council employees who could have authorised repairs, Mr Col Brabham, to whom Mr Brancato referred, being one (see [67(4)] above). However, there was no evidence that any such person had actual knowledge of the relevant defect and it was the appellant’s onus to demonstrate that a relevant Council officer had that knowledge.

81. Nor could the Council’s failure to call Mr Farrager, who was referred to in its answers to interrogatories, overcome the evidentiary deficiencies in the appellant’s case. The only evidence concerning Mr Farrager was that contained in the answers to interrogatories, namely that he would have driven over the adjacent roadway but did not walk over the relevant section of the footpath (see [66] above). In light of the obvious reasons to which Mr Brancato referred why a person driving on the roadway might not see the defect in the footpath (see [67(3)] above), there is no basis for an inference that Mr Farrager had any relevant knowledge. At most, the Council’s failure to call Mr Farrager could have enabled an inference as to his knowledge that was available on the evidence to be more confidently drawn but it could not be relied upon to establish that Mr Farrager had relevant knowledge when there was no other evidence that he did (Kuhl v Zurich Financial Services [2011] HCA 11; 243 CLR 361 at [63]–[64]).

NEGLIGENT INSPECTIONS

82. The appellant pointed out that the definition of “carry out road work” in s 45(3) of the Act includes the carrying out of any activity in connection with the inspection of a road work and submitted that the present case concerned negligent inspections, which constituted malfeasance, rather than a failure to undertake inspections or other road work which would have amounted to nonfeasance. He submitted that s 45(1) did not therefore afford the Council immunity because that sub-section was concerned only with nonfeasance.

83. The answer to this submission is that, whilst in one sense the appellant’s injuries were caused by the Council employees’ allegedly negligent inspections of the footpath and failure to report the defect in question to Council officers with the authority to repair it, they also, and more immediately, were caused by the Council’s failure to repair the footpath. This cause was clearly within the ambit of s 45(1) of the Act, thus attracting the immunity, in the absence of proof of any actual knowledge of the defect in a relevant Council employee. It does not matter that there might have been other causes which fell outside the ambit of s 45(1) because the falling within it of the immediate cause of the appellant’s injury is sufficient to attract the immunity.

ORDERS

84. As none of the appellant’s grounds of appeal have been established, the appeal should be dismissed with costs.

85. MEAGHER JA: Subject to one matter, I agree with Macfarlan JA and the orders his Honour proposes. That matter is the question whether s 45(1) has no application because of the Council's alleged failure to exercise reasonable care in inspecting the footpath. I agree with Basten JA that the appellant's argument should not be accepted. Notwithstanding that one way the appellant formulates his claim is to allege a negligent failure to inspect, the personal injury for which he seeks to make the Council liable answers the description in s 45(1) as “arising from a failure of the authority to carry out road work”. That was a failure to repair the sunken area of the footpath.

84. SIMPSON JA: The issues in this appeal are set out in the judgments of other members of the Court, as are the relevant facts. In that respect, therefore, I can be relatively brief.

85. The appellant was injured in the early hours of the morning of 27 February 2011. His injuries were caused when he was walking on a footpath in Balmoral Street, Blacktown. Blacktown City Council (“the Council”) had the care, control and management of the footpath.

86. A section of the concrete surface of the footpath was cracked and broken, causing a v-shaped depression. Photographic evidence shows that the depression was on the edge of the footpath, against a slightly raised kerbing, and adjacent to the roadway. (The precise location of the damaged section is of some significance.)

87. The appellant brought proceedings against the Council, alleging negligence. He particularised the negligence as breach of the Council’s duty of care by:

• failure to repair the footpath;

• construction of a footpath in such a place and such a way as (by reason of the proximity of trees) to be likely to subside;

• failure to light;

• failure to rope, barricade, or otherwise mark off the area to prevent persons walking over it;

• failure to warn of the danger;

• failure to inspect, or regularly inspect;

• failure to have any or any adequate system of inspection, repair and maintenance;

• failure to have any or any adequate system of reporting defects to enable timely repair of dangerous sections;

• inappropriate construction of the footpath such as to create a likelihood of subsidence and thereby danger.

(The particulars of inappropriate construction were not pursued at trial.)

90. The proceedings were heard in the District Court in August 2014 by Curtis DCJ, who, on 18 September 2014, delivered judgment in favour of the Council. Put shortly, he did so on the basis that the Council was, within the meaning of s 45 of the Civil Liability Act 2002 (NSW), a “roads authority” and that, by reason of the interpretation given to s 45 by this Court in North Sydney Council v Roman [2007] NSWCA 27; 69 NSWLR 240 (“Roman”), the appellant was not able to show that the Council had relevant knowledge of the damage to the pathway.

91. Section 45 exempts road authorities from civil liability for harm arising from failure on the part of the authority to carry out road work, or to consider carrying out road work, unless the authority had actual knowledge of the particular risk the materialisation of which resulted in the harm. By subs (3) “carry out road work” has an expanded meaning, and includes, relevantly, inspection and repair of road works.

92. In accordance with s 45, the appellant could not succeed on any of those particulars of negligence that asserted failure on the part of the Council to inspect or repair the footpath unless he could also establish relevant actual knowledge in the Council.

93. Three issues emerged in the appeal. The first concerned the construction given to s 45 of the Civil Liability Act by the majority in Roman. The second, which was heavily dependent upon the first, concerned the state of knowledge of the damage to the footpath in the Council. The third, which was independent of the first and second, concerned the adequacy of inspections of the footpaths undertaken by the Council.

The first issue

94. In Roman, a majority of this Court (Bryson and Basten JJA) held that, if the immunity given to a roads authority is to be avoided by the exception provided in s 45(1):

“… actual knowledge must be found in the mind of an officer within the council having delegated (or statutory) authority to carry out the necessary repairs.” (at [156])

95. Their Honours further held:

“157  … a purposive construction would require that the relevant knowledge exist in an officer responsible for exercising the power of the authority to mitigate the harm … the knowledge must exist at or above the level of the officer responsible for undertaking necessary repairs. The knowledge of others without such responsibility will not, relevantly for the purposes of the provision, constitute ‘actual knowledge’ of the roads authority itself; at best it could give rise to ‘constructive’ or imputed knowledge … even if a street sweeper having a duty to note and report defects, was aware of the pothole, the immunity is engaged absent proof on the balance of probabilities that the officer in charge of maintenance works received that information.”

96. McColl JA took a different view. Her Honour said:

“57 Nothing in s 45, in my view, precludes the conclusion that the actual knowledge which will be attributed to the roads authority will at least be that of those relevantly involved in the authority’s system of inspecting roads who have a duty to report their knowledge of a particular risk and/or who have a responsibility for repairing the road, or to consider repairing the road, if such a risk is brought to their attention.

…

60 In my view, for the purposes of s 45, the knowledge of those persons who, acting within the scope of their duties, learn of the particular risk under an obligation to report it as part of the roads authority’s system of maintaining the roads under its jurisdiction, should be attributed to the roads authority …”

97. In Blacktown City Council v Hocking [2008] NSWCA 144; Aust Torts Reports 81-956, in obiter remarks, Tobias JA expressed strong and reasoned support for the reasoning of McColl JA: see [221]-[226]. In doing so, his Honour acknowledged that the construction of s 45(1) adopted by the majority “was consistent with the language of that provision”, although not mandated by that language: [223](f).

98. On 3 August 2007 the plaintiff in Roman was granted special leave to appeal to the High Court: Roman v North Sydney Council [2007] HCATrans 405. However, before the appeal was heard, the case was settled.

99. The primary judge in the present case was bound by the decision of the majority in Roman. It was on that basis that he gave judgment for the Council.

100. Presumably because of the conflict of views in this Court, and the grant of special leave in Roman, the appellant in this case successfully sought that a five judge Bench be convened in order to reconsider the decision in Roman.

101. The principles upon which this Court will depart from its earlier decisions have been comprehensively stated in Gett v Tabet [2009] NSWCA 76; 254 ALR 504. Put simply and starkly, it will do so only where satisfied that the earlier decision is “plainly wrong”. I have (reluctantly and with great respect to the majority in Roman) come to the view that the decision in Roman falls within that description.

102. The words of s 45(1) are:

“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.”

103. Nowhere in s 45, or elsewhere in the Civil Liability Act, has the legislature made any attempt to specify or define those officers or employees of a roads authority whose knowledge is to be taken to be that of the authority. It would have been a simple legislative exercise to have done so, had that been Parliament’s intention. The omission must be taken to have been deliberate.

104. There is nothing in s 45 (or elsewhere in the Civil Liability Act) that indicates that it was the intention of Parliament to confine the class or category of employees in the way it has been confined as a result of the decision in Roman. The requirement that “actual knowledge” of a roads authority in s 45 must be the knowledge of a specific class or category of persons, that is, those having delegated or statutory authority to carry out the necessary repairs is, at the least, a gloss on the words of the subsection.

105. Until 2014, it had long been accepted that, where three conditions are met, a court may read into legislation words that the legislature did not enact: Wentworth Securities Ltd v Jones [1980] AC 74; Inco Europe Ltd v First Choice Distribution (a firm) [2000] 1 WLR 586; [2000] 2 All ER 109; Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; 147 CLR 297; Tokyo Mart Pty Ltd v Campbell (1988) 15 NSWLR 275; Bermingham v Corrective Services Commission (NSW) (1988) 15 NSWLR 292.

106. In Bermingham, McHugh JA (as he then was), applying the formulation of Lord Diplock in Wentworth Securities, and adopted in Tokyo Mart, stated the three conditions as:

(i) that the court knows the mischief with which the Act is dealing;

(ii) that the court is satisfied that, by inadvertence, Parliament has overlooked an eventuality which must be dealt with if the purpose of the Act is to be achieved;

(iii)  that the court is able to state with certainty what words Parliament would have used to overcome the omission had its attention been drawn to the defect (p 302).

107. I interpolate here that I am far from satisfied in this case that the conditions (ii) or (iii) have been met. However, that may be beside the point. The issue of the extent to which the words of a statute may be curially enhanced came before the High Court in Taylor v The Owners – Strata Plan 11564; [2014] HCA 9; 253 CLR 531. The legislation there in question was s 12(2) of the Civil Liability Act, which limits the quantum of an award of damages for financial loss in cases of injury or death; it does so by reference to “the claimant’s” gross weekly earnings. The claim in question was brought under the Compensation to Relatives Act 1897 (NSW), arising out of the death of the plaintiff’s husband. In this Court, it was held, by majority, that in order to reflect the intention of the legislature, s 12(2) ought to be read as though it provided “… the claimant’s [that is, the plaintiff’s] or the deceased person’s gross weekly earnings”. “or the deceased person’s” were the words notionally inserted by this Court.

108. In the High Court, French CJ, Crennan and Bell JJ, in a joint judgment, found it unnecessary to decide whether the three conditions drawn from Wentworth Securities were “always, or even usually, necessary and sufficient” to justify the insertion into a statute of words not enacted by Parliament. That was because:

“…the task remains the construction of the words the legislature has enacted.”

Their Honours went on to say:

“39  … In this respect it may not be sufficient that ‘the modified construction is reasonably open having regard to the statutory scheme’ because any modified meaning must be consistent with the language in fact used by the legislature … ”

109. Finally, at [40], their Honours said:

“… In Inco Europe Lord Nicholls of Birkenhead observed that even when Lord Diplock’s conditions [as stated in Wentworth Securities] are met, the court may be inhibited from interpreting a provision in accordance with what it is satisfied was the underlying intention of Parliament: the alteration to the language of the provision in such a case may be ‘too far-reaching’.” (internal citations omitted)

110. Gageler and Keane JJ, in a separate judgment, said:

“65  … Ungrammatical legal meaning sometimes involves reading statutory text as containing implicit words. Implicit words are sometimes words of limitation. They are sometimes words of extension. But they are always words of explanation. The constructional task remains throughout to expound the meaning of the statutory text, not to divine unexpressed legislative intention or to remedy perceived legislative inattention. Construction is not speculation, and it is not repair.” (italics added, internal citation omitted)

111. The words the legislature has enacted in s 45 do not include specification of the officers or employees whose knowledge is to be attributed to a roads authority. For myself, as indicated above, I am far from satisfied that, by inadvertence, Parliament overlooked the inclusion of such specification. I am equally far from able to state with certainly what words Parliament would have used to overcome the omission (if there were an inadvertent omission) had its attention been drawn to the defect. Indeed, I am far from satisfied that the omission of specification was a defect.

112. In my opinion, the intention of Parliament in enacting s 45 in the language it did can adequately, and fairly, be met by the approach to the question of “actual knowledge” on a case by case basis, depending on the evidence of the particular roads authority’s internal organisational arrangements, any actual knowledge in any officer or employee, the level of seniority of that person or those persons, the particular circumstances of the risk of harm in question, and the measures necessary or available to alleviate the risk. There may, in a particular case, be other factors. Courts are practised in undertaking exercises of this kind. There is no basis for addition to, or refinement of, the words in the section. That appears to me to be consonant with the view expressed by the President in [3] and [4] of her judgment.

113. I accept, of course, that actual knowledge of “an officer with delegated (or statutory) authority to carry out [or authorise] the necessary repairs” would be sufficient to satisfy the “actual knowledge” test. What I do not accept is that the “actual knowledge” test can never be satisfied by proof of knowledge of any person who does not come within that category. My departure from the decision in Roman lies in the requirement of knowledge in such a person as a necessary, or minimum, condition of proof of actual knowledge in the roads authority.

114. In Roman, at [152], Basten JA acknowledged:

“To the extent that the potential for financial liability may be an incentive to act, and the absence of such liability a disincentive to act, it could be argued that s 45 places a premium on ignorance. However, that consideration cannot affect the proper construction of the provision, nor lead to some diminution of the requirement of actual knowledge as a precondition to liability for ‘non-feasance’.”

115. While I accept that the potential consequence of a particular construction of s 45 cannot be used to diminish the requirement of “actual knowledge” (to the exclusion of imputed or constructive knowledge), I do not accept that potential consequences are entirely irrelevant to the task of statutory construction. In my opinion, where there is doubt about construction, or competing constructions are available, potential consequences can cast light on the determination of the intention of the legislature: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355, at [78], [80].

116. For these reasons I am unable to agree with the approach taken by Macfarlan JA at [62]-[64]. In my respectful opinion, this Court should declare that Roman was wrongly decided.

The second issue

117. In this case there was evidence from Mr Brancato. Mr Brancato’s evidence was relevant to both the second and third issues identified above. Mr Brancato was an “assets inspector”. His duties, he said, “were many and varied” (Black 53S) and included driveway and street inspections, maintenance of roads, footpaths, kerbs and gutters and the like. He gave evidence of the nature of the inspections, which were conducted on a “cycle” – that is (as I understand it) on a periodic rotation – from a car. His practice was to drive slowly past the inspection site, and make a note of anything that he observed that called for repair (Black 54G). The evidence showed that inspections of Balmoral Street had taken place on 9 December 2009, 1 April 2010, 11 August 2010 and 10 January 2011 (Blue 155). Mr Brancato explained why he had not seen the damage to the footpath. When it was put to him that if driving past and keeping a proper lookout, he would have seen the damage to the footpath, he said:

“That’s wrong, can I explain it to you? Because the footpath is right against the kerb, and you’re driving on the driver’s side, and you’re going up that lane, that slip lane, and you’re watching the traffic as well, because the traffic can stop in front of you at any moment; and that edge, that trip edge, is right up against the kerb, you can’t see it.” (Black 68M-O)

118. Mr Brancato undertook an inspection of the area, after the appellant’s fall, on 20 April 2011. He said that, initially when he drove past, he did not see the damage, and had to park the car to walk to the footpath (Black 63F-G). He said:

“If I’d seen it, I would’ve surely done something about it, that’s my job. And I take particular pride in my job.” (Black 69H-I)

119. Mr Brancato also gave evidence that, when his inspection did reveal a need for repair:

“I would issue the work down to the overseer down at the depot, who would then prioritise the work.” (Black 56O-P)

He said that the decision as to whether the work was to be done or not done lay with the overseer at the depot, a Mr Brabham. However, he also said of his post injury inspection:

“Well, I went out there, had a look at it, took some photos of it and went reported back to the engineer, and straight away issued some works to have it made serviceable as soon as possible.” (Black 57P-Q)

120. I accept, as Macfarlan JA has found, that the evidence did not identify any employee or officer within the Roman category who had actual knowledge of the state of the footpath. That includes Mr Brancato. If Roman applies, that concludes the appellant’s case on failure to repair.

121. That leaves open a question as to the outcome of the appeal in the event that it was held that Roman was wrongly decided. The presentation of the appellant’s case was constrained by the binding authority of Roman. He did not attempt, and would not have been permitted, to explore the knowledge of the damaged footpath of any Council employees or officers other than those in the Roman category. In particular, by reason of the concluding passages of [157], he would not have been able to investigate, or adduce evidence of, such knowledge in street sweepers or other employees even if they were under a duty to report defects.

122. Before the trial, the solicitors for the appellant administered interrogatories to the Council (Blue 105-110). These were plainly formulated on the basis of the law as stated in Roman. They sought information concerning “persons employed or engaged by the [council] as at 27 February 2011 responsible for decisions concerning road and footpath repair”, and specific information about Mr Brancato.

123. If the approach I take to s 45 were to prevail, if could be expected that the Council would be interrogated more broadly. Different issues would arise. I am not therefore, able to conclude that, notwithstanding that the evidence in the trial that took place did not identify any officer or employee in a Roman category who had actual knowledge of the defect, the appeal should be dismissed. The presentation of the appellant’s case was circumscribed, as it had to be, by the binding authority of Roman. I would therefore allow the appeal on this basis.

The third issue

124. The appellant also relied on what he asserted was negligent inspection, and the evidence of Mr Brancato was capable of supporting that claim. It is arguable that a system of instruction that involved an officer driving past, on a public road, in traffic, observing (but hardly inspecting), in circumstances in which part of the subject of the purported inspection is obscured, fails to meet requisite standards. The primary judge did not give any consideration to this question, merely concluding that the Council was immune from liability for negligent inspection.

125. He stated (Red 52N-O):

“34  A road authority is immune from liability to carry out road works even if it conducts inspections carelessly.”

Apparently as authority for that proposition, he extracted the passage from [152] of the judgment of Basten JA in Roman (set out above). That passage does not support the proposition. I would allow the appeal on this basis also.

126. Further, I am unable to agree with the proposition in the judgment of Macfarlan JA (at [*27*]) that, if a failure to repair, which itself would (absent actual knowledge in the Council) attract the s 45 immunity, was the consequence of an antecedent negligent inspection, the Council nevertheless would retain the benefit of the immunity. Such a case would or may call for consideration of complex issues of causation, including the issues posed by s 5D of the Civil Liability Act and see Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182; Wallace v Kam [2013] HCA 19; 250 CLR 375. That exercise has not been undertaken. There has been no finding, for the reasons set out above, as to whether the inspection was negligently performed.

127. In my opinion, if it can be shown that a negligent inspection is the first step in a chain of events (or omissions) that results in injury, the issue of causation would arise for determination. This has not been the subject of consideration in this case.

128. Because:

• in my opinion, the decision at first instance was made in reliance upon a decision that ought to be overruled; and

• the decision failed to consider whether the inspections were negligently carried out, and, if they were, any causative effect of that negligence:

the appeal ought to be allowed, with costs, and the matter remitted to the District Court for a new trial.

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Endnotes

Amendments

02 February 2016 - Minor typographical errors corrected at [11], [33], [37] and [115]

Decision last updated: 02 February 2016