Part 5

The respondent suffered injuries when he crashed his motorcycle into a median strip in an intersection and, in suing the appellant, asserted negligence in the design of the intersection. The appellant relied on s 43A.

The Court noted that it would have been appropriate for the appellant to identify how it fell within the phrase “public or other authority” as referred to in s 43A(1) and defined in s 41. [17]

The Murray Darling Basin Authority (‘the Authority’) was established as a body corporate by the Water Act 2007 (Cth), the stated object of which was “to enable the Commonwealth, in conjunction with the Basin Sates, to manage the Basin water resources in the national interest”. A Ministerial Council on which NSW is represented gives directions to the Authority. The Authority’s staff are appointed as Commonwealth employees. While some of its functions are funded solely by the Commonwealth, others are funded in part by NSW. Representative plaintiffs sued the Authority in negligence. The Authority relied in its defence on Part 5 of the Civil Liability Act, which would only apply if the Authority or its delegates were a “public or other authority” within the meaning of s

41. The Authority relied in particular on pars (e) and (e1). A separate question was referred to the Court of Appeal to determine whether the Authority or its delegates met that definition. The Court held that they did not.

On s 41: The conventions governing reference to other statutes, found in ss 65 and 66 of the Interpretations Act 1987 (NSW), indicate that ‘Act’ in s 41(e) means ‘NSW Act’: [73]. That the Water Act is in part supported by a referral of power by NSW under s 51(xxxvii) of the Constitution does not alter its status as a Commonwealth law, thus excluding the Authority from the scope of s 41(e).

Section 41(e1) is directed towards the nature of relevant functions rather than the status of a person or body. The use of “person” contrasts with the words “person or body” in paragraphs (f) and

(g). The bracketed words concerning employment status suggest that s 41(e1) is confined to natural persons, as it is unlikely that those words would denote an attribute which cannot be held by certain members of the group to which they apply: [76]-[78].

Section 41(e1) was enacted in response to a specific judicial decision concerning psychiatrists in private practice who also worked for a “public or other authority” such as an Area Health Service.

That context speaks against an intention to provide special defences to the emanations of other polities for conduct that is merely governed by NSW law: [79]-[82]. Delegates of the Authority exercise functions under the Commonwealth Water Act and not public official functions of NSW: [83].

NSW’s role in the Ministerial Council and its funding of the Authority do not make the Authority’s functions public official functions of NSW. Nor do permits granted to the Authority under NSW legislation for certain of its operations change the nature of the relevant functions: [84]- [87].

The respondent fell when descending the steps of a rotunda and sued the owner and occupier of the park, Bathurst City Council Crown Reserves Reserve Trust (the Trust), of whom the trustee was the appellant council (the council). The primary judge held that the Trust was not a public authority under the meaning of s 41. Therefore, the principles under s 42 were not applicable. The

council argued that the Trust was not a separate legal entity and that, therefore, the true defendant was the council (which would then fall under the s 41 definition).

The Court dismissed this argument as no submission had been made at trial as to the lack of separate legal personality of the Trust, nor evidence provided as to the legal relationship between the Trust and the council. It would have been necessary, if the Trust were a separate legal entity, to consider whether the Trust were the “crown” or a “public or local authority” for the purposes of s 41. [40]-[41], [45]

A fire started in a tip near Walla Walla. It spread quickly, and in about an hour, reached a town 11km away, Gerogery. There, it destroyed the plaintiff’s home and personal possessions. She commenced representative proceedings in the Supreme Court against the Council which operated the tip, claiming damages for loss and damage to property as a result of the fire, and for personal injury (including psychiatric injury) as a result of the fire. The trial judge found that the Council owed the plaintiff a duty of care to take reasonable steps to prevent unintended fires at the tip, and breached it by failing to undertake certain precautions. However, his Honour dismissed the proceedings on the basis that the plaintiff had failed to show factual causation within the meaning of s 5D of the Civil Liability Act 2002 (NSW), as he found that she had not established a sole probable cause of the fire. The plaintiff appealed, arguing that though a sole cause had not been established, all the likely causes were within the control of the Council and could have been averted had reasonable precautions been taken, and therefore submitting that the primary judge erred in finding that the plaintiff had failed to establish causation. By notice of contention, the respondent Council challenged the primary judge’s findings that it owed the plaintiff a duty of care and that it had breached that duty, and asserted that the primary judge had erred in his consideration of the relevance of ss 42 and 43A of the Civil Liability Act 2002 (NSW) to the questions of duty and breach. The appeal was allowed.

On s 42:

• the drafting of s 42(a) is awkward, but it is the resources available for the exercise of functions which are limited, not the functions themselves: [59].

• in determining whether it would be reasonable to require the taking of additional precautions, the court must apply as a principle the assumed fact that such financial and other sources as are reasonably available are ‘limited’. A court can, however, find that an additional allocation of resources was reasonably required to meet the risk of harm, so long as the broader inquiry, extending beyond the circumstances of the plaintiff’s case, is undertaken in accordance with s 5C(a): [97].

• the reference to ‘functions required to be exercised by the authority’ in s 42(a) is to be understood as referring to functions which may involve similar risks of harm, so as to operate coherently with s 5C(a). The phrase ‘the broad range of its activities’ in s 42(c) would not, in this case, require reference to the activities of the Council that bore no direct relationship to the operation of waste management sites: [98].

• a court is not permitted to allow a plaintiff to ‘challenge’ the general allocation of ‘those resources’, that is, the resources reasonably available for the exercise of the functions identified in s 42(a), as understood in accordance with the broad range of activities in s 42(c). The point here is that a court may not reach the conclusion that additional resources should have been made available although they had been allocated to the exercise of other functions at the relevant time. A court can conclude, however, that more unallocated resources should have been provided: [99]- [100].

High Court decisions cited in discussion:

Sutherland Shire Council v Heyman (1985) 157 CLR 424; [1985] HCA 41

Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29

NSWCA decisions cited in discussion:

Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Ltd (2009) 77 NSWLR 360; [2009] NSWCA 263

Bathurst Regional Council as Trustee for the Bathurst City Council Crown Reserve Trust v Thompson [2012] NSWCA 340; 191 LGERA 182

Holroyd City Council v Zaiter [2014] NSWCA 109; 199 LGERA 319

The appellant’s application for development approval was initially rejected by the respondent council because of the council’s failure to make certain calculations accurately. The appellant sought damages for economic loss alleging the council had breached a common law duty of care and that, but for the council’s error, development approval would have been granted in a timely manner.

Section 43 is inapplicable to a common law duty of care. [92] (per Macfarlan JA, in dissent on whether the council owed a duty of care)

Ms Cullen attended an Invasion Day rally as a spectator. Police were present at the rally. During the rally, an attendee was giving a speech and stated that he intended to burn an Australian flag. Burning an Australian flag was contrary to the conditions attached to the permission granted for the rally. The speech was emotive but the crowd was calm. After hearing this, but before the flag was ignited, the police rushed into the crowd without warning with more than one fire extinguisher. A number of people were knocked over and trampled. Mx Williams noticed a police officer recording the scene with a video camera.

They approached the officer and knocked the camera out of the officer’s hand then retreated into the crowd. Sgt Livermore attempted to apprehend Mx Williams and in the course of the physical contact, both Mx Williams and Sgt Livermore fell to the floor and knocked over the plaintiff who struck her head on the ground and suffered serious injury. The plaintiff commenced proceedings on the basis that the police owed her a duty of care and that the police were in breach of that duty and negligent. The police, relevantly, defended the claim on the basis that the plaintiff did not meet the standard required by s 43A(3) of the Civil Liability Act. The Supreme Court found in favour of the plaintiff.

On s 5B

In relation to s 5B of the Civil Liability Act, a risk of harm consequent upon rushing unannounced into the crowd with fire extinguishers operating is plain. The risk was not insignificant, and a reasonable person would have taken precautions to avoid the risk. Simply announcing their arrival to the crowd would probably have sufficed. A single officer with a fire extinguisher walking through the crowd to arrive at the scene of the possibly impending ignition would have been sufficienct: [134].

A risk of harm of colliding with persons when taking physical action within a small crowd is foreseeable and not insignificant. Precautions were available, including attempting a verbal arrest or an arrest not involving a forceful grabbing: [172].

On s 43A

Given that the police force is a public authority, in deciding breach both s 5B and s 43A are relevant: [136]. There was no evidence to explain why the police rushed into the crowd without warning and discharge their fire extinguishers, all to extinguish a fire that did not exist: [137]. Therefore, the conclusion that the officers acted recklessly or unreasonably in the terms of s 43A(3) is easily reached: [138]-[141]. However, s 43A has no part to play in deciding if the arrest was lawful: [153].

Sgt Livermore’s conduct was reckless because it ignored the strong potential of harm to persons close by, to a degree “that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of… its power”: [173].

On s 5D

Regarding causation, Mx Williams assaulting Sgt Lowe did not constitute an intervening act which broke the chain of causation because the panic created by the officers initiated the actions of Mx Williams and there may be more than one causative act. The police moving through the crowd was for the purpose of preventing the lighting of the flag not to arrest Mx Williams. The need for their arrest arose from their reaction to the police. In other words, but for the police intervention no issue would have arisen with Mx Williams: [143]-[149].

High Court decisions referred to in discussion:

Strong v Woolworths Limited [2012] HCA 5

March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506

The respondent, Ms Lorenzato, agreed to purchase a residential property from Mr Della Franca. The contract included a planning certificate (“the Certificate”) issued by Burwood Council (“the Council”) under s 149 of the Environmental Planning and Assessment Act 1979 (NSW). The purchase was competed on 12 August 2011. The property was subject to ongoing stormwater issues and in 2002, the Council resolved to acquire a drainage easement over an underground stormwater pipe located on the property (“the Resolution”). The existence of the Resolution was not disclosed in either the Certificate or in the answer to requisitions made to the vendor’s solicitors. Ms Lorenzato commenced proceedings against both the vendor and the Council, claiming damages for negligent misstatement. The primary judge found in favour of Ms Lorenzato. Judgment was given against each of the defendants for about

$1,200,000 with interest. The Court of Appeal allowed both appeals.

On s 43A: Section 43A, concerning proceedings against public authorities exercising statutory powers, is not a statutory defence, but rather specifies the standard of care in place of that specified by s 5B of the Civil Liability Act: [8].

Section 43A of the CLA does not apply only when the public authority was exercising a discretionary power, but also when it was performing a duty: [19]. The standard of care imported by s 43A(3) was applicable to the issuing of the Certificate under s 149(2) and (5) of the Environmental Planning and Assessment Act 1979 (NSW). The Council could not incur liability in issuing the Certificate unless its act or omission was in the circumstances so unreasonable that no council could properly have considered it to be a reasonable exercise of the power in question: [21], [26]-[28], [147], [151].

NSWCA decisions cited in discussion:

Queensland Bulk Water Supply Authority t/as Seqwater v Rodriguez & Sons Pty Ltd [2021] NSWCA 206

Mr Cox piloted a light aircraft that collided with a Ferris wheel erected in the splay of the landing strip at the Old Bar Airstrip for the Old Bar Festival. A passenger in the Ferris wheel, Ms Arndell, sued the Mid-Coast Council (‘the Council’) and Mr Cox for negligence in relation to the collision. Mr Cox also sued the Council for negligence. The Old Bar Airstrip was operated by the Council through an Airstrip Committee, and organisers of the Old Bar Festival had to apply to the Council to use the land adjacent to the airstrip for the event. The operator of the Ferris wheel made a separate application to the Council for the operation of the Ferris wheel at the festival. The Council’s liability to each plaintiff was potentially limited by the application of Part 5 of the Civil Liability Act, and its liability to Mr Cox was potentially additionally limited by the application of s 5L of the Civil Liability Act. The Court gave judgment for Ms Arndell against the Council, apportioning liability for the incident to Mr Cox as to 35%, and gave judgment for the Council against Mr Cox.

The owners were not present at the August controlled fire or at the 5 September fire. No steps were taken to establish that there was no risk of the fire reigniting on Doran in the unusual weather conditions of 5 September, either by the owners or the RFS. The appellant also did not go to Myack to take any precautions after becoming aware of the high fire risk prevailing on 5 September.

The appellant sought damages in negligence and nuisance from the respondents, claiming that they owed him a non-delegable duty of care to prevent the foreseeable risk of harm which arose from the potential spread of fire from Doran to Myack, which was breached when the controlled fire was not properly extinguished and later reignited. The respondents denied the claims and alleged contributory negligence on the appellant’s part.

On s 43A: Section 43A(2) defines a “special statutory power” as a power conferred under statute that is of a kind that persons who are not statutory authorities are generally unable to exercise. Thus to the extent that the Council might have exercised powers derived from its status as occupier of the airstrip, those powers may not be special statutory powers. However, permissions granted for the operation of the Festival and of the Ferris wheel were approvals under the Local Government Act 1993 (NSW) and therefore involved the exercise of a special statutory power and so attracted the application of s 43A: [275]- [279]. However, the standard set out in s 43A was nonetheless breached by the Council as no reasonable Council, armed with the information that it had, would have allowed the use of the airstrip and/or the erection of the Ferris wheel in the relevant location: [318]-[321].

The appellant’s farm, “Myack”, was extensively damaged by fire in September 2012. The appellant claimed that the fire started on the adjoining property, “Doran”, resulting from a controlled burn conducted there in August 2012 at the request of the owners, the respondents. The respondents acknowledged that they would remain responsible for preventing the spread or escape of the fire and ensuring that it was properly extinguished, and for notifying adjoining landowners of the burn, which they did not do. The RFS identified that a tree on the boundary of Doran was the source of the 5 September fire, reigniting after not having been fully extinguished after the controlled fire.

The owners were not present at the August controlled fire or at the 5 September fire. No steps were taken to establish that there was no risk of the fire reigniting on Doran in the unusual weather conditions of 5 September, either by the owners or the RFS. The appellant also did not go to Myack to take any precautions after becoming aware of the high fire risk prevailing on 5 September.

The appellant sought damages in negligence and nuisance from the respondents, claiming that they owed him a non-delegable duty of care to prevent the foreseeable risk of harm which arose from the potential spread of fire from Doran to Myack, which was breached when the controlled fire was not properly extinguished and later reignited. The respondents denied the claims and alleged contributory negligence on the appellant’s part.

On s 43A: The RFS was excluded from liability for the loss or damaged it caused to the appellant under this section: [221].

The respondent slipped and fell on a patch of water on a concrete footpath and sued the applicant council. The council, seeking leave to appeal, raised a defence under s 45.

The precautions a reasonable person in the council’s position would have taken to avoid the risk of harm fell under the definition of “traffic control facility” and, as such, did not fall within the meaning of “road work” under the Roads Act 1993 (NSW). They therefore did not fall within the meaning of “carrying out roadwork” for the purposes of s 45(3).

Actual knowledge of the particular risk that resulted in harm to the respondent may be evidenced by formal complaints made to the council. [48]-[49]

The appellant suffered a fall when he stepped onto a sunken area of a public footpath and subsequently sued the respondent council. The council raised a defence under s 45, and submitted that as a “roads authority” lacking actual knowledge of the particular risk the materialisation of which resulted in the harm, they were not liable.

Section 45 can only be addressed by identifying the officers who have the delegated or statutory authority, responsibility or function of carrying out roadwork or of considering carrying out roadwork, being the persons whose actual knowledge of a risk is relevant for s 45. [16]-[17]

The “particular risk” which materialised must be identified and it is not sufficient to just identify a type or kind of risk. Whilst the immunity does not extend to misfeasance as opposed to non- feasance, the impugned failure was the failure to rectify the unevenness and not a failure to take reasonable care in repairing the footpath. [40]- [41], [45]-[46], [49]-[52], [83].

Note: Special Leave to Appeal to the High Court was refused.

NSW Court of Appeal cases cited in discussion:

North Sydney Council v Roman [2007] NSWCA 27; (2007) 69 NSWLR 240

Blacktown City Council v Hocking [2008] Aust Torts Reports 91-956

The appellant was injured when she rode her bicycle over a bridge and the front wheel of her bicycle became stuck in a gap between the wooden planks. She sued the respondent council for negligence which had care, control and management of the bridge. The council claimed a defence under s 45, submitting they had no actual knowledge.

A finding of actual knowledge can be made by inference. As the inference was available and the roads authority called no evidence to rebut it, the Court could more comfortably find actual knowledge. “[P]articular risk” in s 45 is the same as the s 5B(1) risk of harm. [158]-[160], [164]

High Court cases cited in discussion:

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR

298

NSW Court of Appeal cases cited in discussion:

North Sydney Council v Roman [2007] NSWCA 27; (2007) 69 NSWLR 240

Leichhardt Council v Serratore [2005] NSWCA 406 Council of the City of Liverpool v Turano [2008] NSWCA 270; (2008) 164 LGERA 16

Botany Bay City Council v Latham [2013] NSWCA 363; (2013) 197 LGERA 211

A woman fell in a car park after her trolley hit a pothole, on land acquired by the respondent council, and subsequently sued the council. The council argued that s 45 applied, and that as a roads authority without actual knowledge it was immune from liability for failure to carry out road works.

Section 45 only applies where the council is a roads authority with respect to the area in question and if the place of the accident was part of a “public road” as defined in the Roads Act 1993. Because the area was not a public road under the Roads Act, the council was not a “roads authority” under s 45, and the statutory defence did not apply. [6], [36], [52]

A property owner sued the respondent council for nuisance, alleging that the council’s consent to the construction of drains and stormwater outlets in order to preserve a habitat for a colony of frogs, and the council’s failure to maintain certain drains, resulted in drainage problems and a diminution of the value of the land. The council argued that, as a “roads authority”, it was not liable under s 45 for carrying out “road work” without actual knowledge under s 45.

Because the construction of the drains were not “road works” as defined under the Roads Act 1993 (NSW), s 45 did not apply. Even if the construction did constitute “road works”, s 45 only extends to road works carried out in the capacity of the council as a roads authority, not as a drainage authority, and statutory immunity, such as that conferred by s 45, must be construed strictly.

Section 45 is only concerned with non-feasance, rather than misfeasance and therefore would not apply in any case. [193], [194], [283]

High Court cases cited in discussion:

Australian National Airlines Commission v Newman  (1987) 162 CLR 466

NSW Court of Appeal cases cited in discussion:

North Sydney Council v Roman [2007] NSWCA 27; (2007) 69 NSWLR 240

The respondent tripped on an uneven paver and fell near a tree close to an intersection, and sued the appellant council. The council argued that, as a “roads authority”, it was not liable under s 45 for failure to carry out road works where it had no actual knowledge of the “particular risk” the materialisation of which resulted in the harm.

The “particular risk” referred to in s 45 is of the same level of generality as the reference to the “particular harm” in s 5D. The actual knowledge required was actual knowledge of the particular risk posed by the unevenness of the very paver that caused her to trip and fall. It was not sufficient for the council to know of a general risk that someone might trip and fall in an area of irregular pavers. In the absence of evidence of the council possessing such knowledge of the particular risk of the particular harm that eventuated, the s 45 defence would apply. [45]-

[49] (observed as obiter)