Central Coast lady is one of the first to suffer from recent interpretation of Council’s Immunity against personal injury claims

Published 12 Apr 2016

Ms AR was a very fit and healthy businesswoman. She operated a health food store in Erina on the Central Coast. She resided near a beach and it was common for her to walk her dogs in or around the beach area.

She would normally take a certain path, however, on the date of her accident, she was short for time and decided to go up a path that led to a set of stairs that would lead to her home in a shorter route. Although AR had gone down these stairs before, on this occasion there was something different. A step had been washed away just as the handrails commence. This meant that AR had to raise her leg to a height which was not normal in the negotiation of stairs.

As a consequence, she tripped and fell forward fracturing her right elbow.

The incident was immediately reported to Gosford City Council and repairs to the stairs were undertaken immediately the next day.

As a consequence of AR's injuries, she suffered a frozen elbow which impacted upon every facet of her activities of daily living as well as her business.

The impact upon her life was so great that her then partner left her and the business had to be sold.

A lot of investigative work needed to be conducted in this matter so as to overcome the difficulties faced with by litigants pursuing against councils under the Civil Liability Act. Through our investigations, we had obtained what we believe to be sufficient evidence to overcome the then leading case of Sydney Council v Roman, in that we had sufficient evidence to indicate that the council ought to have had knowledge of the repairs that were required to the steps.

In December 2015, arrangements were made for an informal settlement conference to take place in February. The informal settlement conference could not take place any sooner due to people taking annual leave around that time.

On 23 December 2015, in the New South Wales Court of Appeals, a decision was entered in the matter of Nightingale v Blacktown City Council. The decision had an overwhelming effects on AR’s claim. The decision further narrowed the immunity provided under Section 45 of the Civil Liability Act, where an immunity would arise for the Council if the person who has the authority to rectify an area had "actual knowledge", the immunity would apply.

By the time the matter came to its allotted informal settlement conference, the decision had already become the leading case.

There was no alternative but to accept a verdict for the defendant in this matter as AR had assets which could then be liquidated to meet any cost orders that a Court may impose.

Despite the disappointing outcome, AR was still very happy with the manner that we prosecuted her claim leaving no stone unturned to arrive at a result in her favour.