Orange City Council v Peter Warren Willis

2025/00242124

TORTS (negligence) – on 9 July 2020, the respondent, Mr Peter Willis, was walking along Byng Street in the city of Orange when he tripped on a hole in the grass verge between the footpath and the kerb – a parking sign had been installed in the grass verge many years earlier, but it had since been removed, leaving the hole – Mr Willis injured his right shoulder – the appellant, Orange City Council (the Council), had control over and responsibility for the roadway, footpath, and grass verge in Byng Street – Mr Willis sued the Council for negligence, seeking damages for his injuries, disabilities, losses, and expenses – the Council raised protections, which apply to public authorities, under ss 43A and 45 of the Civil Liability Act 2002 (NSW) (the CLA) – the primary judge held that: (1) the Council’s negligence caused the harm suffered by Mr Willis; (2) the Council was liable in damages to Mr Willis; (3) the “special non-feasance protection” in s 45 of the CLA did not provide immunity to the Council, as the Council had actual knowledge of the particular risk; and (4) s 43A of the CLA provided no protection, as there was nothing in the case to suggest that the Council’s omission to take steps in relation to the concealed hole was so unreasonable that no authority could properly consider such omission to be a reasonable failure to exercise its power to take appropriate precautions against the risk of harm – whether the primary judge erred in specific factual findings – whether the primary judge erred in finding that the Council was negligent – whether the primary judge erred in failing to find that the liability alleged by Mr Willis arose from a failure of the Council to carry out road work for the purposes of s 45 of the CLA – whether the primary judge erred in finding that the Council had actual knowledge of the particular risk which resulted in the harm – whether the primary judge erred in failing to find that Mr Willis’ claim relied upon an omission by the Council which involved a failure to exercise a special statutory power, for the purposes of s 43A of the CLA – whether the primary judge should have held that the Council was not liable to Mr Willis, because the omission relied upon was not so unreasonable that no authority having the special statutory power in question could properly consider the omission to be a reasonable failure to exercise its power.

Willis v Orange City Council [2025] NSWDC 208