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In a recent decision, the Supreme Court of NSW has awarded damages of $380,640 in finding that Hornsby Shire Council’s (Council) was negligent when a resident fell into an unfenced culvert on a public road and suffered substantial injuries.

In 2011, the Plaintiff, Mr Oberlechner was walking his dogs at night on a poorly lit suburban street in the Council’s LGA when he stepped into what appeared to him to be bushes or overgrown weeds. He stepped into what was in fact actually an unfenced culvert and fell three meters into the drain below. As a result of the accident, the Plaintiff suffered various injuries including the exacerbation of a long-standing psychiatric illness which was pre-existing prior to the accident.

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 43A and section 45 of the Civil Liability Act 2002 (NSW) (CLA). In this particular case however, Council was unable to rely on the protection afforded by these sections because Council failed to take action to address a risk of harm of which it had actual knowledge.

Councils should always be aware that sections 43A and 45 of the CLA will not provide a complete protection from liability and there are circumstances where Council will be liable as outlined below in this particular case.

Special non-feasance protection for roads authorities

The Court considered whether the protection afforded by section 45 of the CLA was provided to Council in this particular factual matrix. Section 45(1) of the CLA provides the following:

(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.

The Court found that the Council is a roads authority and that the phrase “carry out road work” includes erecting a fence around the culvert. The key issue that was before the Court to determine was whether or not the Council “had actual knowledge of the particular risk the materialisation of which resulted in the harm”.

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. The Court pointed to a number of specific instances where “actual knowledge” was present.  Actual knowledge was held to be actual knowledge in the following instances:

  • Inspections in 2000 and 2007 which concerned the physical state of the culvert where the “mere physical description of its location was, of itself, actual knowledge”;
  • When the culvert was built in 1979, Council was informed of engineering works that were undertaken and as a result, at this point Council has actual knowledge.

As such, the Court found that Council was unable to rely on the protection afforded under section 45 of the CLA because it had actual knowledge of the risk posed.

Exercise of special statutory powers

The Court also needed to determine whether section 43A of the CLA would afford protection to Council. Section 43A(3) reads:

“any act or omission involving an exercise of, or failure to exercise, a special statutory power does not give rise to civil liability unless the act or omission was in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power.”

The Court needed to consider whether Council’s failure to erect a fence was so unreasonable in the circumstances that no authority could properly consider Council’s failure it to be a reasonable exercise of its power.

This is a high threshold to be met but it was held by the Court that Council’s action not to erect a fence was in fact so unreasonable that no authority could consider it to be a reasonable exercise of power. The Court pointed to evidence of a consultant engineer who provided evidence to the Court it had been common practice for a number of decades for Councils to erect fences at the top of culverts and that Councils were commonly aware of this fact.

As such, the Court held that the protection of section 43A also did not apply to Council in the particular factual matrix.


In light of this decision, Councils should ensure that it always undertakes any curative action for defects and risks on any roads for which it is the roads authority if it has actual knowledge of those defects or risks. If no action is taken it may expose Council to potential liability in negligence. If a particular practice is widespread amongst Councils such as erecting fences at the top of culverts, Council should ensure that it has undertaken these steps to protect itself from liability.