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The Public Authority Immunity Defence Was Overturned on Appeal

Case Overview
  • The appellant fell and was injured when the ramp on which he was walking slipped from under him.
  • The ramp had been placed over repaving work outside a council property area and they relied on s 45 of the Civil Liability Act (NSW).
  • Public authority immunity defence was overturned on appeal.

The appellant fell and was injured when the ramp on which he was walking slipped from under him. The ramp had been placed over repaving work outside a shopping centre. The area was council property.

At first instance, the council relied on s 45 of the Civil Liability Act (NSW) and was successful before Strathdee J. s 45 provides a defence for ‘road authorities’ to liability for harm arising from a failure to carry out 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 council argued that s 45 was not satisfied because it did not know that this particular ramp, placed wherever it was at 5.45pm, was unsecured. It argued that the fact that there was a known type of risk does not suffice; rather, there needs to have been actual knowledge of the precise danger, constituted here by the ramp at issue being in a particular place at the relevant time whilst being unsecured.

The appellant argued that there were two prior notifications to Council that the ramps in use at the site were unsafe for use by people in wheelchairs. They further submitted that it was sufficient that the Council had actual knowledge that “there was a risk that this ramp was not properly secured”, in the sense that it knew that these types of ramps were being used in this particular area outside the Centro Centre, that they could be unstable and dangerous unless secured, and that they were not always secured.

“The Court held that the level of specificity submitted by the Council went beyond the requirements of s45. The Council had actual knowledge of a very specific risk in a very specific area and, therefore, could not rely on the immunity of s45.”


Gerard Dias
Our Approach

This decision is significant because it widens the scope for what can be argued by Plaintiffs to represent “actual knowledge” by Council or a road authority in cases where a person is injured because of a failure by the Council to complete work or maintain a safe environment for the public. This is a complex area of law and it is important to speak to the specialist public liability lawyers at Gerard Malouf and Partners about the details of your case on 1800 004 878.

The Result

In a recent public liability NSW Court of Appeal case, the public authority immunity defence was overturned on appeal.

Gerard Dias

Solicitor
Justice is truth in action – Benjamin Disraeli
Frequently Asked Questions

More Information

Public liability refers to the responsibilities owners or occupants of a public space have to protect anyone who enters. If the owners or occupants fall short of these responsibilities, resulting in an injury, a case for compensation can be made.

Some of the most common incidents covered by public liability law include:

  • The food or drink from a restaurant makes you sick: The most common example of this type of public liability is food poisoning, however improperly disclosed allergens could also lead to litigation.
  • A slip and fall accident caused by negligence: Slip and fall incidents are especially common in busy public places such as playgrounds, schools, shopping centres, common walkways in buildings and outdoor event venues. They can result from negligent behaviour if poorly lit, uneven, unmarked or slippery surfaces are involved, amongst other reasons.
  • Injury caused by poor workmanship: If a product used by a space fails mechanically and causes an injury, a public liability claim can often be made. Examples include exploding gas bottles, poorly constructed furnishings and inadequate building structures. These cases may also be eligible for product liability litigation, if you decide to pursue both the property owner and the product manufacturer.
  • An attack by an animal while in a space: If the owners or occupants of a space fail to keep an animal, whether domestic or wild, contained as a result of negligence, you may have a potential case.

Following an initial meeting, the first task will be to establish the general facts of the case. This will include your medical diagnosis, which will need to be confirmed and documented by a doctor; and proof that the person or company at fault owed you a duty of care, which will need to be demonstrated. Together, this will show that your injury occurred when they breached that duty of care.

From there a further investigation will proceed—contacting and interviewing witnesses, speaking with expert consultants, and more—all in order to bolster the strength of your case even further. Only once this process is complete, and your claim can be demonstrated and proven in full, will the process move on to the next step.

Public liability claims enable you to recoup the financial and emotional costs of suffering an injury due to someone else’s negligence. Defendants regularly offer monetary settlements to claimants, particularly if they acknowledge liability and believe they would lose in court.

But should you accept the settlement or proceed to the later stages of litigation instead, where a judge will have the final decision? Every case is different, but here are some of the factors you may wish to consider before making your choice:

  1. The size of the settlement
  2. The strength of your case
  3. Your patience levels
  4. Your lawyer’s advice
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