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Council Liability as Roads Authority – Case Note: Oberlechner v Hornsby Shire Council [2017] NSWSC 23

Background

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.
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