Nightingale v Blacktown City Council

The plaintiff, Nightingale, brought proceedings against Blacktown City Council (the Council) in negligence following injuries sustained from a fall caused by a sunken area of footpath. The primary dispute concerned whether the Council was liable for the plaintiff's injuries. The matter was heard by the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the Council had "actual knowledge" of the particular risk that materialised, as required by section 45 of the *Civil Liability Act 2002* (NSW), and the proper interpretation of this statutory provision. Specifically, the Court considered whether "actual knowledge" necessitated knowledge of a particular class of persons at risk, or knowledge held by those with the authority to conduct repairs, or if knowledge held by those involved in the Council's system of inspection was sufficient. The Court also considered whether the protection afforded by section 45 extended to situations where inspections were carried out negligently.

The Court of Appeal, in dismissing the appeal, reasoned that section 45 of the *Civil Liability Act 2002* (NSW) requires actual knowledge of the specific risk. It was held that knowledge of the general risk of uneven footpaths or the existence of a system of inspection was not sufficient to establish actual knowledge of the particular risk that caused the plaintiff's fall. The Court found that the knowledge possessed by the Council's employees involved in the inspection system did not amount to the "actual knowledge" contemplated by the statute, particularly in relation to the specific defect that caused the injury. The protection under section 45 was not intended to cover situations where inspections were conducted negligently, but rather to shield public authorities from liability where they lacked actual knowledge of a specific risk.

The appeal was dismissed with costs.