Case notes: extensive liability protection for councils under the Civil Liability Act

Mansfield v Great Lakes Council [2016] NSWCA 204

On 1 January 2010, John Mansfield drove his truck along a single lane track when he ran over a culvert (open drain). The embankment gave way causing his truck to roll over into the watercourse. Mansfield was injured in the accident.

Proceedings were commenced in the District Court of NSW against Great Lakes Council as the road authority responsible for the care and maintenance.

The trial judge held Mansfield failed to establish liability on Council’s part due to the immunities provided under Sections 43A and 45 of the Civil Liability Act 2002 (NSW).

Mansfield appealed to the NSW Court of Appeal.

Issues on appeal

The issues on appeal pertained to:

  • whether a failure to carry out the road works was “so unreasonable” that no roads authority would consider the omission to be a proper exercise of, or failure to exercise its statutory powers, further to Section 43A of the Civil Liability Act 2002 (NSW); and
  • whether council was immune from liability for a failure to carry out road works in the absence of “actual knowledge” of its officers as to the particular risk, the materialisation of which caused the harm, further to Section 45A of the Civil Liability Act 2002 (NSW).

Court of Appeal decisions

Section 43A
It wasn’t in issue that Council was empowered to carry out “road work” pursuant to Section 71 of the Roads Act 1993. This was based on Mansfield’s claim Council failed to build a sufficiently large culvert with head walls, which would have prevented the erosion and collapse of the embankment.

The Court of Appeal felt Mansfield needed to establish that the inspections carried out by Council’s engineer were so manifestly defective no roads authority could have properly considered them adequate. The Court of Appeal found the cross-examination of the engineer failed to elicit any concession that his conduct was inadequate, let alone grossly inadequate.

The court found Mansfield’s expert evidence went no further than to state that from an engineering point of view, the result was “foreseeable”. No opinion was expressed to support a conclusion of manifest unreasonableness.

Accordingly, the court agreed with the trial judge the evidence didn’t satisfy the court that Council’s failure to undertake the road work was so unreasonable it was sufficient to avoid the application of this immunity.

Section 45
The court noted this section had given rise to differing views as to the relevant officer(s) within a roads authority who must have “actual knowledge”. However, this issue wasn’t addressed in the present case as it only involved two officers who had actual knowledge of any risks: Council’s officer who worked at the front desk and Council’s engineer.

While the front desk officer had allegedly received complaints about the embankment, the court considered that even on the broadest view of the class of officers whose knowledge might constitute knowledge of the authority she would not qualify. Even if this officer had passed on the complaint, the “lack of particularity” was unsatisfactory to establish actual knowledge.

In relation to the engineer, it was deemed insufficient that he had prepared an inspection report prior to the accident which identified the culvert as defective as he stated this was not a “safety issue”. It was also found the cross-examination of him failed to establish a basis upon which such an inference as to actual knowledge could be drawn. The court agreed Section 45 was engaged.

Implications

This case highlights the extensive liability protection afforded to councils under the Civil Liability Act and the difficulties faced by plaintiffs in circumventing these defences without compelling evidence.