Roads authorities shielded by Roman, but for how long?
Individuals who intend to sue roads authorities for negligence at common law face a significant legal hurdle. Section 45 of the Civil Liability Act 2002 (NSW) (“CLA”) provides an immunity for roads authorities (such as local Councils) who have a general duty of care to members of the public to prevent against a risk of harm. The section provides that roads authorities are not liable for harm arising from their failure to carry out road work, or to consider carrying out road work, unless they had ‘actual knowledge’ of the defect and the risk the defect posed. The Court of Appeal decisions of North Sydney Council v Roman  NSWCA 27 (“Roman“) and Nightingale v Blacktown City Council  NSWCA 423 (“Nightingale“) have both addressed the meaning of ‘actual knowledge’.
At common law, roads authorities owed a general duty of care to members of the public to ensure roads were maintained in reasonable working order and did not give rise to a risk of harm. Schedule 1  of the Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW) introduced section 45 into the CLA on 6 December 2002. The provision was enacted in order to restrict the circumstances where roads authorities could be held liable for failing to undertake remedial work. The purpose of the provision was to balance societal expectations that authorities will uphold their duty to the public, and the revenue implications that may arise if authorities are held to an unreasonable standard.
Section 45 provides:
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.
The Court of Appeal decision of Roman addressed the concept of ‘actual knowledge’ in section 45, and how it should be interpreted. On 16 October 2001, Mrs Roman stepped into a pothole on a road in North Sydney, falling heavily and injuring her left ankle. She commenced proceedings in the District Court against the Council, arguing that Council street sweepers who regularly swept the street within the vicinity of the pothole, would have known, or ought to have known, of its existence and had an obligation to report any hazards they identified. The Plaintiff argued that the probable knowledge of the street sweepers was attributable to that of the Council, and the trial judge found in her favour.
Council successfully appealed the decision. The majority judgment of Bryson JA and Basten JA held that the statutory immunity prevailed and that the trial judge had erred in her interpretation of the evidence and by inferring that the Council had knowledge. Bryson JA stated:
“ 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… The knowledge of others without such responsibility will not, relevantly for purposes of the provision, constitute ‘actual knowledge’ of the roads authority itself…”
McColl JA in her dissenting opinion stated:
“ 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. …
 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 …”
The application and interpretation of section 45 was revisited in the Court of Appeal decision of Nightingale. On 27 February 2011 Mr Nightingale suffered an injury to his right foot after stepping into a depression on a public footpath. He commenced proceedings against the Council arguing that Council had breached their duty of care by failing to repair the footpath and for not having an adequate system of maintenance in place. The Plaintiff established that even though regular inspections had been conducted by Council employees preceding his injury, the hazardous footpath had not been identified, nor acted upon. The trial judge applied the principles of Roman and found in favour of the Defendant, noting that ‘actual knowledge’ of the risk on their part had not been established. The Court granted the Plaintiff leave to appeal the decision and a bench of five judges was convened in order to review the majority judgment of Roman.
Two issues arose on appeal. The first was whether the majority view in Roman was correct in their interpretation of ‘actual knowledge’. Contextually, the High Court had previously granted special leave to review the decision in Roman, but it had settled prior to hearing and before the opportunity could arise. The dissenting opinion of Justice McColl in Roman had also gained momentum in subsequent cases. The second issue was whether the Council should be held liable in circumstances where it had conducted inspections of the footpath, but had done so negligently.
The majority judgment and specifically the judgment of Basten JA in Nightingale held that while there was some merit to the dissenting opinion of McColl JA in Roman, the case was not an appropriate vehicle in which to embark on a reformulation. This was because the facts of each case were distinguishable. Council employees in Nightingale did not have any knowledge of the footpath and therefore the Council itself could not be said to have had ‘actual knowledge’ of the risk, unlike in Roman where Council employees arguably had an inferred knowledge of the pothole. The majority upheld the decision of the trial judge, stating that the Appellant’s injury arose out of Council’s inability to maintain the footpath (attracting the immunity of section 45), and not from the negligent inspections they carried out.
The meaning of ‘actual knowledge’ within section 45 is not a settled area of law. It appears likely that, in coming years, the issue will be agitated again. Specifically whether the restrictive approach of Roman should prevail, or perhaps whether a more liberal interpretation should apply. As the law presently stands, Plaintiffs face an almost insurmountable hurdle in overcoming the immunity applied to roads authorities and establishing their liability.