By: Lesley Woodmore, Sam McNally and Tenielle Corcoran

Willis v Orange City Council [2025] NSWDC 208

Note: Wotton Kearney has prepared this as part of our Statewide Mutual Risks Conference 2025 coverage – be sure to visit us in Sydney. For more insights like this, explore our Local Government hub.

Overview

On 9 July 2020, Peter Willis (the Plaintiff), aged 76 years, was walking in Byng Street in Orange, NSW, when he tripped on a hole in the grass verge between the footpath and the kerb. This hole had previously been filled by a parking sign in the grass verge, which had been removed. The hole was not obvious, as grass had grown over it. The Defendant, Orange City Council (Orange City Council) was the local government authority in control of Byng Street. (Willis v Orange City Council [2025] NSWDC 208, 1.)

The Plaintiff sustained a serious right shoulder injury requiring surgery and ongoing care, which significantly impacted his mobility and independence. He sued Orange City Council for negligence and sought damages for his injuries, disabilities, loss and expenses pursuant to the Civil Liability Act 2002 (NSW) (CLA). Both liability and quantum were in dispute (Ibid 2.).

Court Findings: Discussion of Council’s Statutory Defences

Orange City Council originally pleaded defences under sections:

• 42 – Principles concerning resources, responsibilities etc of public or other authorities,
• 43A – Proceedings against public or other authorities for the exercise of special statutory powers,
• 45 – Special non-feasance protection for roads authorities,

of the CLA. However, the section 42 defence originally pleaded but was subsequently discarded in final submissions (Ibid.).

Foreseeability and Breach of Duty

The Court found:

• the risk of injury was foreseeable and not insignificant – especially given the hole’s concealment, and
• a reasonable council would have either fixed the hole or clearly marked the hazard. Failure to do so was a breach of duty.

Section 42 Defence – Principles concerning resources, responsibilities etc of public or other authorities

Abandoned.

Section 43A Defence – Proceedings against public or other authorities for the exercise of special statutory powers

Section 43A of the CLA provides immunity for the exercise of “special statutory powers” unless the act or omission was so unreasonable that no authority with that statutory power could reasonably consider it a proper exercise of that power.

The Court found s 43A of the CLA did not apply as:

• the Council’s witnesses thought that, if a concealed hole in the grass verge was known to Council, steps should have been taken to exercise their power to guard against the risks posed by the hole, and
• there was nothing in the case to suggest the omission of the Council to take steps in relation to the concealed hole was so unreasonable that no authority could properly consider such omission to be a reasonable failure to exercise their power to take appropriate precautions against the risk of harm (Ibid 174.).

Section 45 Defence – Special non-feasance protection for roads authorities

Section 45 of the CLA relates to special non-feasance protection for Roads Authorities. The effect of s 45 is that it protects a roads authority (e.g., local councils, RMS) against liability for harm resulting from their failure to perform road work (or even their failure to consider such work) unless they had actual knowledge of the specific risk which caused the harm.

To successfully claim against a roads authority under s 45 of the CLA, a plaintiff must demonstrate the authority had actual, specific knowledge of the particular risk which materialized and caused the injury, not just general knowledge of a hazard.

In the present case, Orange City Council argued it was protected under s 45, asserting it did not have actual knowledge of the hole in the verge and had maintained a reasonable inspection and maintenance regime.

The Court rejected Council’s s 45 defence. It held Orange City Council did in fact have actual knowledge of the hole. The justification was simple but important: the Council’s employees had removed the parking sign which left the hole and had conducted works at that very spot. The Court determined this constituted actual knowledge of the risk, even though the Council might not have known exactly how the hole appeared on the day of the incident.

Outcome

The Court:

• rejected both statutory defences and found in favour of the Plaintiff,
• held Orange City Council was negligent and found it liable in damages for harm suffered to the Plaintiff, (Ibid 169.)
• awarded the Plaintiff $133,751.12 in damages plus costs – payable by Orange City Council (Ibid 192.).

Key takeaways: Council’s POV

• “Actual knowledge” does not require a contemporaneous report or direct observation of the hazard at the moment of injury, Council’s prior involvement at the site can be sufficient to meet the threshold under s 45.
• Historical actions including removal of signage or maintenance works can be pivotal in establishing actual knowledge by a public authority – thereby undermining statutory defences (Ibid 151(30).)
• Routine inspections and prompt remediation, even of seemingly minor or concealed hazards, are crucial.

Essential Risk Management Strategies for Councils

Promptly Remediate or Clearly Mark Hazards

Ensure any hazards resulting from works (for example, holes after sign removals) are immediately addressed or, if remediation is delayed, clearly signposted to warn the public.

Maintain Comprehensive Records

Keep detailed documentation of all site works, including photographs and dates, to support evidence of risk management and knowledge.

Enhance Inspection Protocols

Increase the frequency and thoroughness of inspections, with particular attention to concealed or less obvious hazards in high pedestrian traffic areas.

Acknowledge Actual Knowledge Through Prior Involvement

Recognize courts can interpret previous site engagement as ‘actual knowledge’ of hazards, making it imperative to proactively manage risks.

Provide Targeted Staff Training

Equip maintenance and inspection teams with clear understanding of legal obligations and encourage prompt reporting and recording of hazards.

Conduct Audits of Past Worksites

Review and remediate any residual risks from prior maintenance or removal activities to prevent future incidents.