Injury in Council Car Park Results in Significant Compensation
Published 11 Aug 2015
In the recent decision of Cavric v Willoughby City Council  NSWCA 182, the Court of Appeal had to determine whether or not a car park was a public road to determine whether the defendant was exempt from liability.
On 6 June 2011, Mrs Cavric was wheeling a shopping trolley that her child was also sitting in through Northrbidge Plaza car park when the front wheel of the trolley hit a pothole in the ground causing the trolley to tilt to the side. Mrs Cavric tried to stop the trolley from tipping over in order to protect her young child. In doing so, she fell heavily to the floor sustaining significant injuries. Mrs Cavric sued the Council for its negligent maintenance of the car park.
In the trial decision, the judge concluded that the car park was a public road and that this exempted the Council from liability under section 45 of the Civil Liability Act 2002 (NSW). For this reason, the judge dismissed Mrs Cavric’s claim. Mrs Cavric appealed the decision and argued that the car park should not be regarded as a public road.
In the appeal decision, the Court of Appeal had to determine whether the Council was exempt from liability under section 45.
Section 45(1) of the Civil Liability Act 2003 (NSW) states that:
“A roads authority is not liable…for harm arising from the failure of the authority to carry 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.”
The court accepted that the Council was the roads authority connected to the car park as section 7(4) of the Roads Act 1993 (NSW) states that the Council of a local government area is the roads authority for all “public roads” within the area.
The court then had to determine whether or not the car park was a public road. The court looked to Part 2 of the Roads Act 1993 (NSW) but found that the Council had not opened, dedicated or declared the road to be a public road, as they had not registered a plan or published a notice declaring the road a public road.
The court then looked at section 249 of the Roads Act 1993 (NSW). The trial judge interpreted this section to mean that evidence that a place is used as a public road can be used to conclude that the place is a public road. The trial judge accepted the Council’s argument that the car park became a public road in 1964 when the land was first transferred to the council as the transfer document contained a condition that the land be used solely for the purpose of public car parking and a public baby health centre. The Court of Appeal dismissed the trial judge’s decision.
The Court of Appeal instead found that section 349 of the Roads Act is subject to section 178 of the Conveyancing Act 1919 (NSW) and that the trial judge had failed to consider this section. Section 178 states that no grant of way shall be established against persons holding lands in trust for any public purposes by reason only of user. The court found that the Council held the car park on a statutory trust for a public purpose. Furthermore, the court found that the Council had relied solely on evidence of the use of the car park by members of the public as a thoroughfare and that section 178 prevented the Council from relying on this evidence to prove the area was a public road. The court also found that the trial judge was incorrect to use section 249 as a separate criteria to determine whether an area was a public road.
The court therefore accepted Mrs Cavric’s argument and ordered the Council to pay $285,915.00 in compensation.