In a recent decision of Oberlechner v Hornsby Shire Council [2017] NSWSC 23, the Supreme Court of NSW has awarded damages of $380,640 in finding that Hornsby Shire Council (Council) was negligent when a resident fell into an unfenced culvert on a public road and suffered substantial injuries.
A Council will often find that it is protected from liability from defects in footpaths and roads as a result of the statutory protection provided to roads authorities by section section 45 of the Civil Liability Act 2002 (NSW) (CLA). Section 45 of the CLA reads:
(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.
In this particular case however, Council was unable to rely on the protection afforded by this section because Council failed to take action to address a risk of harm of which it had actual knowledge.
The evidence indicated that there were multiple people in the Council that had “actual knowledge” of the risk posed by the culvert over a period of 30 years since when it was built and us such could not rely on section 45. Council were therefore ultimately held to be negligent.
MatthewsFolbigg Lawyers, Parramatta, are specialist environmental lawyers who are able to advise in relation to all matters relating to governance, planning and environmental law. Call an expert environmental lawyer today on 1800 300 308.
