Section 45 Civil Liability Act: Non-Feasance Immunity For Roads Authorities

Angel v Hawkesbury City Council [2008] NSWCA 130, Blacktown City Council v Hocking [2008] NSWCA 144

The NSW Court of Appeal constituted a bench of five judges to hear the appeals in Angel and Hocking as in both matters the defendant councils raised a defence based on s45 of the Civil Liability Act 2002 (NSW) ('the CLA').

The councils relied upon the majority judgments of Basten and Bryson JJA in North City Sydney Council v Roman [2007] NSWCA 27 and submitted that the plaintiff in each appeal would fail. This prompted applications by the plaintiffs for leave to argue that Roman was wrongly decided and that the court should adopt the dissenting judgment of McColl JA.

In Roman the court of Appeal held that roads authorities are immune from liability for injuries arising from their failure to carry out road work, unless an officer within that authority who is authorised to carry out the necessary road work has actual knowledge of the particular risk that resulted in