Orange City Council v Willis

1. [1]

   BELL CJ: I agree with Payne JA.

2. [2]

   PAYNE JA: On 9 July 2020, the respondent, Mr Peter Willis was walking in Byng Street in 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 before, but it had been removed, leaving the hole. The hole was not apparent, as grass had grown over it following the removal of the sign. Mr Willis put out his arms to break his fall. He injured his right shoulder. The appellant, Orange City Council (the “Council”) was the local government authority in the city. It had control over and responsibility for the road, the footpath, and the grass verge in Byng Street.

3. [3]

   On 4 July 2023, the respondent filed a Statement of Claim in the District Court, alleging negligence and seeking damages. The Council disputed the existence of any duty of care, and any breach of duty. The Council also raised “defences” pursuant to ss 43A and 45 of the Civil Liability Act 2002 (NSW). The proceedings were heard by Russell SC DCJ on 19, 20, 21 and 24 March 2025.

4. [4]

   On 12 June 2025, the primary judge delivered reasons for making the following orders (Willis v Orange City Council [2025] NSWDC 208):

Decision of the primary judge

1. [5]

   The primary judge found that a parking sign fixed to a pole was placed at some time in the past by the Council on a grass verge in Byng Street near a coffee shop called “Coco’s” using the standard practice of digging a hole 600mm deep and 300mm wide and filling the hole with 20kg of rapid set concrete.

2. [6]

   Important evidence was given by two shop proprietors whose premises were close to the place where the parking sign had been installed.

3. [7]

   The first, Ms Rachel Bastik, was the owner of Coco’s café, which was situated close to where the respondent fell. The primary judge accepted Ms Bastik’s evidence that she saw a parking sign attached to a pole with a “concrete ball” on the other end of the pole lying on the grass verge on Byng Street, Orange. [1] The parking sign laid there during the Christmas/New Year shutdown period in 2019–2020 “for a short time” before it was removed. His Honour found that Ms Susan Noon, who was employed by Ms Bastik as a cook, had fallen into a hole in the grass verge during the period the parking sign was lying on the grass verge. In cross-examination, Ms Bastik said that she did not look for the hole but assumed that the hole was there because she saw that the sign (with a concrete ball attached on the end) was out of the ground.

4. [8]

   The second important witness was Mr Craig Ostini, a funeral director and manager of a funeral home in William Street (near the intersection with Byng Street where the parking sign had been erected). The business was formerly operated by Mr Norman Penhall together with Mr Ostini. Mr Penhall had passed away prior to the trial. Although Senior Counsel for the appellant originally objected to Mr Ostini giving evidence of what he heard Mr Penhall say, that objection was withdrawn by the time the evidence was concluded. Mr Ostini gave evidence in chief that Mr Penhall had said “he had spoken to council and getting them to get rid of the sign, or to let them know the sign was out”. In cross-examination, Mr Ostini was adamant that he was told by Mr Penhall that “he had spoken to council to get them to remove the sign and fix the hole” (emphasis added). His Honour found that Mr Ostini was “absolutely certain” about his evidence concerning Mr Penhall reporting the matter to Council.

5. [9]

   The primary judge accepted the evidence of Mr Ostini and, in particular, his evidence that Mr Penhall was “not a person to let Council issues go through to the keeper… he had an invariable practice of referring matters to the Council when he noticed them”.

6. [10]

   The primary judge found, based on witness testimony and satellite image maps, that the parking sign was out of the ground and lying on the grass verge between about 20 December 2019 and 3 January 2020. The primary judge found that the fallen sign was removed from Byng Street within a short period of time after Mr Penhall made his complaint to the Council about the sign. His Honour concluded that it was the Council which took the fallen sign away.

7. [11]

   The primary judge accepted the respondent’s evidence about falling into a hole on 9 July 2020 in the grass verge on Byng Street near the intersection of William Street, Orange, and the effects of the fall upon him. The primary judge also found the respondent’s partner, Ms Beach, who gave evidence about essentially the same issues, to be a reliable and credible witness. The respondent reported his fall to the Council.

8. [12]

   Mr Whitton, an employee of the Council responsible (with a Mr Costello) in 2020 for replacing street signs, gave evidence that “I do remember replacing a sign” in Byng Street near Coco’s café on 12 July 2020. Mr Whitton gave evidence that he got a phone call to go there on that date. He and Mr Costello put up a new sign on a pole. Mr Whitton had no knowledge of a sign previously at that location. Mr Whitton explained that street signs were regularly brought to the depot where Mr Whitton and Mr Costello worked, including by other Council employees such as street sweepers. He gave evidence that if a sign had been dropped off by another Council employee, no marking was made on the sign and it “sometimes is difficult” to determine where the sign came from. This was because no record was kept at that time of anything that was dropped off at the depot. Mr Whitton and Mr Costello had been on leave in the period between 20 December 2019 and 3 January 2020.

9. [13]

   Ms Maureen McPherson, an employee of the Council, was nominated by Mr Ostini as a person Mr Penhall often communicated with about Council matters. Ms McPherson did not recall speaking with Mr Penhall about a sign which had fallen out of the ground. She accepted in cross-examination that it was “quite possible” that Mr Penhall had called her between 20 December 2019 and 3 January 2020 to discuss the street sign which was lying on the verge on Byng Street. She also accepted that she might not have remembered to put Mr Penhall’s complaint into the Council’s electronic customer reporting management system as she “might have been busy dealing with other matters”.

10. [14]

    The primary judge summarised the relevant documentary evidence as being:

    1. (1)

       pre-incident photographs showing the sign in Byng Street before the incident, visibly leaning;

    2. (2)

       photographs taken on day of the incident, showing the hole visible in the grass;

    3. (3)

       an Incident Report Form resulting from Mr Willis’ and Ms Beach’s oral report made at the offices of the appellant on the day of the incident;

    4. (4)

       post-incident photographs of the sign when it was replaced; and

    5. (5)

       other Council documents, being Customer Relationship Management system (“CRM”) records, Government Information Public Access (“GIPA”) documents, CRM inquiries, and documents concerning the appellant’s inspection regime, all of which the primary judge noted were uncontroversial.

11. [15]

    The primary judge also referred to the expert report tendered by the respondent, by Mr Denis Cauduro, a qualified ergonomist and safety professional. Mr Cauduro said that Mr Willis suffered a fall injury when his foot collapsed into a visually indistinct hole in a turfed nature strip. He said that the cost to fill the hole with soil would have been no more than $50 and would have taken no longer than 15 minutes.

12. [16]

    The primary judge set out his findings of fact as follows:

13. [17]

    On the question of liability, the primary judge considered that the relevant risk of harm was the hole in the grass verge that Mr Willis tripped on. The parties on the appeal accepted this as the correct identification of the risk of harm. The primary judge found that the risk of harm was foreseeable. Section 5B(1)(a) of the Civil Liability Act was therefore satisfied.

14. [18]

    The primary judge found that the “risk posed by a hole in the grass verge, which became covered by grass and which became invisible, created a risk which was not insignificant.” The primary judge also referred to the evidence that somebody had already tripped in the hole long before Mr Willis did — that is, Ms Noon. Section 5B(1)(b) of the Civil Liability Act was thus satisfied.

15. [19]

    Having regard to the factors in s 5B(2) of the Civil Liability Act, the primary judge held:

16. [20]

    The primary judge found that the appellant was negligent, taking into account the general principles set out in s 5B of the Civil Liability Act.

17. [21]

    The primary judge found that s 5D(1)(b) of the Civil Liability Act was satisfied. Factual causation was established by the appellant’s negligence in failing to take appropriate steps to fill in the hole, or to warn pedestrians of the existence of the hole. This was a necessary condition of the occurrence of the harm. The scope of the appellant’s liability extended to the harm so caused. The appellant was the local government authority responsible for the land where the incident occurred.

18. [22]

    As to s 45 of the Civil Liability Act, after setting out the text of the section, the primary judge reasoned:

19. [23]

    As to s 43A of the Civil Liability Act, after setting out the text of the section, the primary judge reasoned:

20. [24]

    Damages of $133,751 were awarded. As damages formed no part of the appeal, no more need be said about the subject.

Notice of Appeal and Notice of Contention

1. [25]

   On 12 September 2025, the appellant filed a Notice of Appeal. The appeal is brought under s 127 of the District Court Act 1973 (NSW). The Notice of Appeal challenges the primary judgment in relation to liability only.

2. [26]

   The grounds of appeal are:

3. [27]

   On 6 November 2025, the respondent filed a Notice of Contention which provided the following “Details of Contention”:

4. [28]

   The Notice of Contention advanced the following ground:

Submissions — Grounds One, Two, Three, Four and Five — Facts, section 45 immunity and negligence

1. [29]

   Mr Priestley SC, who appeared for the appellant, described the appeal as turning on the outcome of factual challenges:

2. [30]

   Mr Priestley SC dealt with those factual challenges compendiously as dispositive of grounds 1–5 and I propose to address the case in the same way. The appellant challenged only three factual findings, namely that:

   1. (1)

      Mr Norman Penhall rang the Council and reported that the sign had come out of the ground and was lying on the ground (described by the appellant as “Fact 1”);

   2. (2)

      the report by Mr Penhall that a Council sign was lying on the ground logically also informed the Council that there was a hole created in the grass verge (described by the appellant as “Fact 2”); and

   3. (3)

      the primary judge was entitled to infer “because of this sequence of events, that it was the Council who took the fallen sign away. Removal occurred very shortly after Mr Penhall made his report to the Council” (described by the appellant as “Fact 3”).

3. [31]

   The appellant did not dispute the finding of the primary judge that the particular risk was the hole in the grass verge left by the sign which had fallen out, but submitted that no proper basis existed in the evidence for the conclusion that the appellant had actual knowledge of the particular risk.

4. [32]

   The appellant submitted that the “critical finding for the purposes both of the application of the s 45 immunity and for liability generally, was that the appellant had been relevantly notified and was aware of the particular risk of harm before the respondent’s accident” (Facts 1 and 2).

5. [33]

   The appellant submitted that this Court should not conclude that Mr Ostini was “confident” that Mr Penhall had called the Council, when in cross-examination it was put to him that Mr Penhall may have said he was going to call the Council but did not “get around to doing it”. It is to be noted at this stage that Mr Ostini emphatically rejected this suggestion.

6. [34]

   The appellant submitted that the Council’s records, taken together, provided little support for the “invariable practice” of Mr Penhall referring matters of concern to it. This paucity of evidence was submitted to undermine his Honour’s conclusions reflected in Facts 1–3.

7. [35]

   The difficulties, the appellant submitted, with the primary judge’s finding that the appellant had actual knowledge of the particular risk of harm were:

   1. (1)

      the evidence that Mr Penhall had apparently notified Ms McPherson was problematic, because she did not recall Mr Penhall’s complaint and had made no note of it;

   2. (2)

      the finding that Mr Penhall may have instead notified someone else at Council had the difficulty that Ms McPherson was the usual person he apparently spoke to at Council because he knew her, and there was no record in the Council’s system of any such complaint;

   3. (3)

      it was true that the absence of a record was not reliable proof of the fact that no complaint had been made, because sometimes matters were not recorded. However, that did not make the lack of record irrelevant in the analysis, particularly as his Honour accepted that Ms McPherson was a conscientious officer. The onus was on the respondent to establish the facts underpinning actual knowledge, in this case by some report;

   4. (4)

      Mr Ostini’s evidence involved overheard conversation or conversations of events many years before he gave evidence, and the confidence he expressed in his evidence did not necessarily prove that Mr Penhall had done anything in particular;

   5. (5)

      very little is known about what, if anything, Mr Penhall said to any Council officer;

   6. (6)

      there was no satisfactory basis to conclude that Mr Penhall advised the appellant of the existence of a hole, or of the risk of harm of someone stepping in a hole;

   7. (7)

      the evidence did not establish that a sign could not come out and be lying on the ground without creating a hole;

   8. (8)

      it was not proven that that a large ball of concrete necessarily came out with the sign;

   9. (9)

      even if Ms McPherson was advised of the issue, she was an administrative assistant and not in the roadworks department, and was not necessarily an officer responsible for exercising the power to mitigate the harm, by repair. Accordingly, by reason of this Court’s decisions in North Sydney Council v Roman (2007) 69 NSWLR 240; [2007] NSWCA 27 at [130], [156]-[157] and Nightingale v Blacktown City Council (2015) 91 NSWLR 556; [2015] NSWCA 423 at [45]-[48], [64], the appellant was entitled to succeed; and

   10. (10)

       the primary judge did not infer knowledge, and it would not be reasonable to do so simply from inspections, where the hole was said to be difficult to discern.

8. [36]

   The appellant had called as witnesses Mr Whitton and Mr Costello, the workers who were specifically responsible for collecting and replacing signage. It was submitted that the sign may have been collected by other Council workers who, having regard to their roles, would have had “no reason” to report the sign’s position or a possible tripping hazard.

9. [37]

   In the appellant’s submission, the finding that the appellant had probably picked up the sign was not adequately supported. This conclusion “rested heavily” on the impugned finding that Mr Penhall had notified the appellant. There was evidence of regular vandalism of signs by unknown persons. There was no evidence of such a sign being left in the appellant’s yard.

10. [38]

    The appellant submitted that even a finding that an unidentified Council worker had picked up the sign could not translate to actual knowledge for the purposes of s 45.

11. [39]

    The respondent submitted that the primary judge was correct, for essentially the reasons he gave. His Honour’s factual findings were clearly open to him and it would be inconsistent with principle for an appellate court to overturn those factual findings.

12. [40]

    The respondent submitted that there were abundant unchallenged factual findings made by the primary judge which supported the findings of Facts 1–3 and the ultimate conclusions reached by the primary judge.

13. [41]

    The appellant accepted that if it could not overturn the factual findings addressed above, it could not succeed under s 45 of the Civil Liability Act. If those findings were reversed, the appellant submitted that s 45 provided statutory immunity to it for any failure to carry out road work, or to consider carrying out road work, unless at the time of the alleged failure it had actual knowledge of the particular risk the materialisation of which resulted in the harm.

14. [42]

    The appellant submitted that if it succeeded in overturning the factual findings, a legal issue arose on the notice of contention as to whether the work that it was said the appellant should have done as a reasonable precaution against the risk of harm was properly characterised as “road work” within the definition of that term under the Roads Act 1993 (NSW), or whether it was exempted from that definition because it rather involved work related to a “traffic control facility”.

15. [43]

    Both parties accepted that the sign constituted a “traffic control facility” for the purposes of the Roads Act. However, the appellant submitted that work done in relation to replacing the sign (or failing to replace the sign) was not relevant as irrespective of how work to replace the sign was characterised, the critical omission was a failure to fill in a hole which was “road work” and did not itself relate to a traffic control facility. Any decision by the appellant to restore parking signage in the area did not alleviate the risk of harm created by the hole. It was submitted that the failure to fill in the hole was an omission to complete “road work”. Thus, it was submitted, s 45 applied.

16. [44]

    The respondent accepted that if it succeeded on the actual knowledge point, this point need not be decided. The respondent submitted, however, that the work which should have been done to fill in the hole was work in connection with a “traffic control facility” and thus exempt from the definition of “road work”. If it were necessary to decide the point, the respondent submitted that the work was exempted from that definition because it rather involved work in connection with a “traffic control facility”.

Submissions — Grounds Six and Seven — Section 43A Civil Liability Act

1. [45]

   The appellant accepted that if it could not overturn the factual findings addressed above, it could not succeed under s 43A of the Civil Liability Act. If those findings were reversed, the appellant submitted that there was here an act or omission involving the exercise of a special statutory power. The appellant, as the relevant roads authority, was empowered to carry out road work, including filling holes in footpaths (or, it was submitted, verges): see s 71 and the definition of “road work” in the Roads Act.

2. [46]

   It was submitted that the general public were not permitted to carry out “road work” under ss 71 and 138(1) of the Roads Act. It followed, so the argument went, that the appellant could only fill in the hole in the verge in Byng Street by the exercise of a Roads Act power.

3. [47]

   On the question of whether the liability asserted was based on the appellant’s exercise of, or failure to exercise, that statutory power, the appellant asserted that the respondent relied on the appellant’s omission to carry out “road work”, thus satisfying s 43A(1) and engaging s 43A(3). However, in the appellant’s submission, any failure by the appellant to take the relevant precautions was not sufficiently unreasonable. Removing the assumption that the appellant was advised about the hole, this duty of care was not proven to have been breached.

4. [48]

   The appellant submitted that there was no basis to conclude that the appellant’s inspection system was inadequate or unreasonable by the standard of rural city councils. The evidence said nothing as to whether the inspections were carried out adequately. It appears that the sign came out of the ground in a window between inspections.

5. [49]

   The respondent accepted that if it succeeded on the actual knowledge point the s 43A point need not be decided. If it were necessary to decide, however, the respondent submitted that it had not been established by the appellant that:

   1. (1)

      the liability upon which the Council was sued was “based on” the exercise of a statutory power conferred on the defendant: s 43A(1); and (in any event)

   2. (2)

      any power identified by the Council was a “special statutory power” being a power “of a kind that persons generally are not authorised to exercise without specific statutory authority”: s 43A(2)(a) and (b) respectively.

Consideration — Grounds 1, 2, 3, 4 and 5 — Facts, s 45 immunity and negligence

1. [50]

   The primary judge’s conclusions were not suggested to be in the face of “incontrovertible facts or uncontested testimony”: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [28]. In Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 the plurality explained:

2. [51]

   And, as Gleeson CJ, Gummow and Kirby JJ observed in Fox v Percy:

3. [52]

   Even where demeanour is not expressly relied upon, if credit findings are clearly in issue it is unlikely that presentation in the witness box was not keenly observed and taken into account. In Davey v Want [2026] NSWCA 12, Stern JA said (Bell CJ and Griffiths AJA agreeing):

4. [53]

   The appellant’s submissions dealt with the three impugned facts essentially as an amalgam without identifying why each particular finding was incorrect. When evaluating findings of fact made following a trial involving oral evidence and cross-examination of key witnesses, an appellate court should be mindful of the advantages enjoyed by a primary judge of the kind described in the passage from Davey v Want quoted immediately above.

5. [54]

   As I have explained, the assessment of the credibility or reliability of witnesses includes findings about secondary facts, which are based on a combination of these impressions and other inferences from primary facts. They are all aspects of the primary judge’s advantage. So much was accepted by the appellant in this case:

6. [55]

   The findings of fact which are challenged accord with the other findings of fact which are unchallenged, in particular that:

7. [56]

   Whilst it is clear that the appellant challenges the making of a complaint to council by Mr Penhall, it is common ground that no written record was made:

8. [57]

   It was an unchallenged fact that:

9. [58]

   The next group of unchallenged findings relates to the time the sign was on the ground:

10. [59]

    These unchallenged findings, particularly the finding that Mr Penhall told Mr Jaeger that he should be careful when mowing the verge as there was a hole in the ground left by the sign, strongly supported the primary judge’s finding of the fact of a conversation between Mr Penhall and the Council about the very thing he had been talking about all day and the content of that, namely that during that call he had informed the Council about the hole in the verge.

11. [60]

    In addition to these unchallenged findings, the context in which the three challenged facts were found is important. Ms Bastik’s evidence was important and essentially unchallenged. Ms Bastik saw a parking sign attached to a pole with a “concrete ball” on the other end of the pole lying on the grass verge on Byng Street, Orange during the Christmas/New Year shutdown period in 2019–2020 “for a short time” before it was removed. Ms Susan Noon, who was employed by Ms Bastik as a cook, had fallen into a hole in the grass verge during the period the parking sign was lying on the grass verge.

12. [61]

    Regarding the finding of fact that Mr Penhall rang the Council “within a short period of time” before it was removed and reported that the sign had come out of the ground, the evidence relied upon by the primary judge must be considered in context with Mr Ostini’s evidence as a whole. Mr Ostini was called in the respondent’s case but had no interest in the outcome of the proceedings. There was no suggestion that Mr Ostini had any connection with the respondent. Reading the transcript of his evidence, I was impressed with his honesty and clarity. The primary judge, who had a considerable advantage in observing the evidence, accepted it. His Honour found that Mr Ostini was “absolutely certain” about his evidence concerning Mr Penhall reporting the matter to Council. No error was shown in that conclusion.

13. [62]

    It is clear that the fact that the sign was out of the ground came to Mr Ostini’s attention because he heard Mr Penhall say he had called the Council, he heard Mr Penhall talking about the sign, at some length, and Mr Penhall specifically told him about the sign. Mr Ostini shortly thereafter personally observed the sign out of the ground. Mr Ostini heard Mr Penhall telling the gardener responsible for mowing the verge, Mr Jaeger, that there was a hole in the verge he should avoid. These matters provide a compelling basis to find that Mr Penhall rang the Council and reported that the sign had come out of the ground and was lying on the ground and that in this report Mr Penhall also informed the appellant that there was a hole created in the grass verge.

14. [63]

    Mr Ostini was challenged about the clarity of his memory. Mr Ostini properly conceded that his memory was imperfect, but on the critical issue his evidence was clear and compelling:

15. [64]

    The surrounding evidence also supports the findings of the primary judge. Ms McPherson accepted that she may have received a phone call from Mr Penhall about the street sign that she did not remember and may not have recorded.

16. [65]

    No error has been shown in the conclusion of the primary judge that the very short time between the making of the complaint to the Council by Mr Penhall and the collection of the sign makes it sufficiently likely that it was collected by the Council as a result of Mr Penhall’s complaint. I draw the same conclusion. Senior Counsel for the appellant properly accepted that the conclusion I have drawn was open:

17. [66]

    The primary judge was correct to conclude that Mr Penhall actually reported to the Council that the sign had come out of the ground and was lying on the ground. The finding accorded with the weight of available evidence. Considering all of the evidence under s 75A of the Supreme Court Act 1970 (NSW), I make the same finding.

18. [67]

    The evidence before the primary judge also supported the finding that Mr Penhall told the Council that a sign had come out of the ground and was lying on the ground. This report logically also informed the Council that there was a hole created in the grass verge. This conclusion follows from a combination of the finding that Mr Penhall made the report and the objective evidence of the state of the sign and the grass verge.

19. [68]

    It was obvious that a sign which had fallen out, to which a concrete bulb remained attached, would leave a hole in the verge. The Council well understood that the sign was fixed in place in the verge with concrete. Ms Bastik observed there was a concrete ball attached to the pole when it was lying on the ground. The Council tendered photographs of what is typically found when a street sign is pulled out, demonstrating a sizeable hole. The photos were labelled “Calare School – Frost Street – example of what is found when a sign has been pulled out”, “[p]rovided by Brad Whitton”:

20. [69]

    These photographs, provided by the Council, make it quite obvious what the verge looks like when a sign has come out of the ground. When a road sign comes out of the ground with concrete attached, there is necessarily a hole left behind.

21. [70]

    The competing inferences advanced by the appellant are unlikely. If a vandal had removed the sign shortly after Mr Penhall’s complaint to the Council seeking to have the sign removed, this would have been a remarkable and quite unlikely coincidence. The primary judge made an unchallenged finding that “[t]he more likely reason for the sign coming out of the ground is that someone pulled it out”. This bears on the evidence the appellant relies on about vandalism and stealing signs. There may well have been vandalism in terms of pulling the sign out of the ground, but if pulling the sign out of the ground was an act of vandalism, one knows that it was left there by the vandal. It was not actually taken at the time of it being pulled out of the ground.

22. [71]

    The appellant’s challenge to facts in ground 1 fails.

23. [72]

    As to ground 2, the finding of negligence, Senior Counsel for the appellant acknowledged at the hearing that:

24. [73]

    I agree.

25. [74]

    Ground 2 should be dismissed.

26. [75]

    Section 45 of the Civil Liability Act provides:

27. [76]

    It is clear that the relevant knowledge for the purposes of s 45 must exist in an officer responsible for exercising the power of the authority to mitigate the harm: North Sydney Council v Roman at [157] (Basten JA, Bryson JA agreeing). This principle does not avail the Council here. As the primary judge found:

28. [77]

    The case was conducted on both sides on the basis that if the complaint by Mr Penhall to the Council was made, which it undoubtedly was, then actual knowledge would be established. The relevant knowledge did exist in an officer responsible for exercising the power of the authority to mitigate the harm by causing the Council to collect the sign, even if that collection was by street sweepers as the Council suggested at one point as a possibility. A Council officer with authority to cause the Council to collect the sign was told by Mr Penhall of the existence of the hole. Once the sign with a concrete bulb attached was collected by the Council, the fact that a hole had been left where the sign had been fixed would also be plain and obvious from the circumstances to any level of Council officer conducting the collection. Mr Whitton’s evidence about the absence of a system at the depot for recording where signs deposited had been collected from and the absence of any written record of Mr Penhall’s complaint explains how the Council failed to act on the knowledge it undoubtedly possessed, if such an explanation is necessary. No error has been shown in the conclusion of the primary judge about the knowledge of the Council.

29. [78]

    As I have explained, Senior Counsel for the appellant accepted that if his client could not overturn the factual findings of actual knowledge the subject of ground 1 of the appeal, it could not succeed under s 45 of the Civil Liability Act. This is because “at the time of the alleged failure the [Council] had actual knowledge of the particular risk the materialisation of which resulted in the harm”. For the reasons given in relation to ground 1 of the appeal, no error has been shown in the decision of the primary judge on this issue. Accordingly, grounds 3–5 must also be dismissed.

30. [79]

    If it were necessary to do so (see Kuru v State of New South Wales (2008) 236 CLR 1; [2008] HCA 26 at [12] and Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49 at [8]), I would uphold the Notice of Contention point relating to s 45 of the Civil Liability Act for the following reasons.

31. [80]

    It was common ground between the parties that the Council was a “roads authority” within the meaning of s 7 of the Roads Act. What was in dispute was whether the putative failure to address the risk caused by the hole remaining after the sign was removed was within the definition of “a failure of the authority to carry out road work”, that would enliven the qualified protection in s 45.

32. [81]

    Section 45(3) of the Civil Liability Act provides that “carry out road work” means “carry out any activity in connection with the construction, erection, installation, maintenance, inspection, repair, removal or replacement of a road work within the meaning of the Roads Act 1993” (emphasis added).

33. [82]

    As at the date of the respondent’s injury, the Roads Act defined “road work” and “carry out road work” as follows:

34. [83]

    As at the date of the respondent’s injury, the Dictionary to the Roads Act also defined “traffic control facility” as:

35. [84]

    It was common ground between the parties that the relevant parking sign constituted a “traffic control facility” within the meaning of the Roads Act. In oral submissions the Council accepted that, as a matter of construction of the Roads Act, work in connection with, relevantly, removal or replacement of a traffic control facility, was not “road work”. It is well established that a “traffic control facility” is not a “road work” within the Roads Act definition: Colavon Pty Ltd v Bellingen Shire Council [2008] NSWCA 355 at [103] (Campbell JA, Beazley JA and Handley AJA agreeing); Collins v Clarence Valley Council (No 3) [2013] NSWSC 1682 at [133] (Beech-Jones J).

36. [85]

    The expression “in connection with” generally means that a broad connection, not a causal one, is sufficient. However, the degree of connection required is determined by the context in which the words appear: Perry Herzfeld and Thomas Prince, Interpretation (3rd ed, 2024, Thomson Reuters) at [4.420] and the authorities cited therein. In Grain Growers Ltd v Chief Commissioner of State Revenue (NSW) (2016) 93 NSWLR 415; [2016] NSWCA 359, Beazley P considered the words “in connection with” (Bathurst CJ and Leeming JA agreeing):

37. [86]

    The appellant’s submission that any work to address the presence of the hole in the verge was properly characterised as “road work” is a strained construction. It involves artificially severing the clear connection with the “traffic control facility” (the sign itself), removal of which created the hole, and the task of filling in the hole as an incident of removing or replacing the sign.

38. [87]

    I have concluded that, once the sign was removed, work to remediate the area was “traffic control work” within the definition of that term under the Roads Act because it was an “activity in connection with” the sign’s removal or replacement. Absent the removal of the traffic control facility which had come out of the ground with a concrete bulb attached, there would be no need for the work to occur. Addressing the hole and the risk created by the hole was therefore an activity in connection with the traffic control facility.

39. [88]

    The work it was said the appellant should have done as a reasonable precaution against the risk of harm was exempted from the definition of “road work”, as it rather involved work relating to a “traffic control facility” under the Roads Act. If it were otherwise necessary to decide, the Council would not have been entitled to immunity under s 45 of the Civil Liability Act.

40. [89]

    Grounds 3–5 should be dismissed.

Consideration — Grounds 6 and 7

1. [90]

   Section 43A of the Civil Liability Act provides:

2. [91]

   The appellant accepted that if it could not overturn the factual findings addressed above, it could not succeed under s 43A of the Civil Liability Act. For the reasons given in relation to ground 1, the appeal in relation to s 43A fails and grounds 6 and 7 must be dismissed.

3. [92]

   Even if that conclusion were not correct, I would nevertheless not uphold the appeal based on s 43A of the Civil Liability Act. Basten JA stated in Curtis v Harden Shire Council (2014) 88 NSWLR 10; [2014] NSWCA 314 (Bathurst CJ agreeing, Beazley P not deciding):

4. [93]

   Concerning the first stage, the liability upon which the Council was sued was not “based on” the exercise of a statutory power. The risk of harm was the hole in the grass verge that Mr Willis tripped on. The precautions to protect against the risk of harm included filling the hole with dirt, applying contrasting paint, or putting a traffic cone or other cover over the hole. None of these steps requires the exercise of a statutory power. The Council, as the body responsible for the verge, was entitled to take those steps without relying on a special Roads Act power.

5. [94]

   Concerning the second stage, if a member of the public were to fill in the hole or put paint or a traffic cone over the hole, they would be able to do so without any specific statutory authority. Indeed, while the Council was the body responsible for the grass verge, it was mowed and maintained at the relevant time by Mr Jaeger, who was employed by Mr Penhall.

6. [95]

   If it were necessary to decide, the Council would fail on both limbs of s 43A of the Civil Liability Act. Grounds 6–7 should be dismissed.

Conclusion and proposed orders

1. [96]

   For the foregoing reasons I propose the following orders:

   1. (1)

      Appeal dismissed.

   2. (2)

      Appellant to pay the respondent’s costs.

2. [97]

   STERN JA: I agree with Payne JA.