Have you suffered injury as a result of a trip and fall whilst on Council property? Do you believe the Council has been negligent? Personal injury claims against government bodies such as the Council are difficult to win. This is because the law gives the Council protection from people making claims due to their supposed budgetary and time constraints.
There are certain sections within the Civil Liability Act 2002 (NSW) which protect Councils from claims against injured people for failing to fix issues within their Council. Examples include potholes, broken pathways and footpaths.
The legislation was discussed in the 2015 case of Nightingale v Blacktown City Council  NSW 423. In Nightingale, a man suffered injury as a result of tripping on an uneven surface on a Council pathway. The pathway had sunken about 8-10cm at the join, causing a trip hazard. Mr Nightingale claimed that the Council was negligent in that it failed to repair the footpath and ensure the footpath was adequately lit at night.
The District Court of NSW found that the Council was not negligent because the people within the Council who were responsible for ensuring the maintenance and repair of the footpath were unaware of any defect that needed repair. As per the legislation within the Civil Liability Act, if the people responsible for the maintenance and repair of the pathway who work within the Council are unaware of the defect then they cannot be found negligent for someone who suffers injury as a result of that defect.
Mr Nightingale appealed the decision of the District Court of NSW and his appeal was heard by the Court of Appeal. The Court of Appeal dismissed Mr Nightingale’s case and said that for the Council to be found negligent, Mr Nightingale must have been able to prove “actual knowledge must be found in the mind of an officer within the Council having delegated (or statutory) authority to carry out the necessary repairs”. Unfortunately Mr Nightingale was not able to prove the Council’s knowledge of the particular defect in the footpath where he suffered his injury and as a result he was not able to obtain compensation for his injuries.
What does this mean for my case and how can I see whether the Council had “actual knowledge”?
Our specialist accredited personal injury lawyers can assist you in investigating your case against the Council on a “no win no fee” basis. This means, if we investigate your case and find that the Council did not have actual knowledge relating to the defect that caused your injuries, you do not have to pay us for the work that we have done.
There are a number of ways we can investigate whether the Council had actual knowledge of the defect. The first and most important thing we will undertake is a request for information under the GIPA (Government Information Public Access) Act. This request will force the Council to provide us with the information we request about the defect. This request will give us an initial idea as to whether we are able to assist you with a claim against the Council.