*The contents in this blog relates to legislation in New South Wales.
On the evening of 27 April 2017, Mr Eddy was going to the Centro Centre (“Centre”) in Goulburn to do some grocery shopping.
For some time, there had been repaving works conducted by the Mulwaree Council on the footpath outside the Centre. The Council entered into an agreement with a contractor for the repaving and paving works. During the works, temporary ramps were placed over portions of the work to allow customers’ access to the Centre. The Council accepted that it had responsibility for securing the ramps in accordance with the contract.
When Mr Eddy was walking across a ramp in front of the Centre, the ramp slipped out from under him, causing him to fall heavily to the ground and suffer significant injuries. He sued the Council for negligence for failing to secure the relevant type of ramp being used in the particular area outside the Centre.
The Council was notified of two prior incidents involving ramps at the Centre. One incident occurred on 3 April 2017 where a wheelchair user had almost fallen because of the steepness of one of the larger ramps with handrails. The second incident occurred on 20 April 2017 when another wheelchair user advised the ramps were unstable and asked for someone to investigate and look at securing the ramps.
The Council invoked special non-feasance protection in s 45 Civil Liability Act 2002 (NSW) (“CLA“), which limits liability of public authorities such as Local Council’s for liability arising from incidents like this unless they have actual knowledge of the particular danger prior to the incident.
The primary judge found that section 45 applied and dismissed the claim because:
- The ramp encountered by Mr Eddy was a different type to those which were the subject of the two prior notifications to the Council;
- The Council did not have actual knowledge of the type of risk that materialised.
Mr Eddy was unsuccessful in the first instance in his negligence claim against the Council, because the District Court held that Council was entitled to the immunity provided by s 45 of the CLA.
On appeal the Court was concerned with the issue whether prior notification to the Council of earlier issues with ramps was sufficient to constitute knowledge of the particular risk in the sense employed in s 45 of the CLA.
The Court addressed the question of whether the ramp encountered by Mr Eddy was a different type to those which were the subject of the two prior notifications. It examined the evidence of the prior notifications and concluded that the second notification more likely than not related to the same type of ramp as that on which Mr Eddy fell as it involved the same type of problem as that complained about by Mr Eddy, namely instability.
Then, the Court addressed the nature of the requirements for ‘actual knowledge of the particular risk the materialisation of which resulted in the harm’ in s 45 by scrutinising the text, context and purpose of s 45 and provided a useful analysis regarding the characterisation exercise of the risk and the level of specificity required by s 45. It suggested that although this provision provides a stringent test, it should not be understood to require such a high degree of specificity as to make it generally impossible for injured claimants to satisfy the criterion of actual knowledge of the Council of the particular danger.
Kirk JA held (with which Bell CJ and Gleeson JA agreed) that the Council had actual knowledge that there was a risk that the smaller, portable ramps used at the work site were unstable, creating a risk of injury, unless secured. Consequently, the section 45 immunity did not apply.
Mr Eddy was successful on appeal with the claim being remitted to the District Court for a new trial.
You can access the decision of the Court of Appeal here: Eddy v Goulburn Mulwaree Council  NSWCA 87 *
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*The case of Eddy v Goulburn Mulwaree Council is not a Turner Freeman case.