In Willis v Orange City Council [2025] NSWDC 208, the New South Wales District Court awarded over $133,000 in damages to a 76-year-old retiree who suffered injury after tripping in a concealed hole on a grass verge maintained by the Council. The decision provides a practical example of the Court’s application of sections 43A and 45 of the Civil Liability Act 2002 (NSW) and illustrates the evidentiary threshold for proving actual knowledge of a risk in claims against public authorities.
Facts
On 9 July 2020, the plaintiff, Mr Peter Willis, was walking along Byng Street in Orange when he stepped onto the grassy verge between the kerb and footpath, intending to cross the street. His foot became caught in a hole which had previously housed a parking sign. The sign had been removed in or around 2016. Over time, the hole had partially filled with soil and been covered with grass, making it difficult to detect visually.
Mr Willis fell heavily, suffering a significant right shoulder injury. He required surgery and ongoing treatment, and his mobility and independence were affected. He subsequently brought proceedings against Orange City Council, alleging negligence in failing to properly remediate or make safe the hazard.
Council’s Defence
The Council denied liability and raised defences under:
- Section 43A of the Civil Liability Act 2002, which provides immunity for the exercise of “special statutory powers” unless the act or omission was so unreasonable that no reasonable authority could properly consider it a reasonable exercise of power; and
- Section 45, which prevents liability where a plaintiff seeks to rely on an “omission to exercise a function” unless the authority had actual knowledge of the particular risk in question.
The Council submitted that it did not have actual knowledge of the hazard, and that its inspection and maintenance regime was reasonable in the circumstances.
Decision
Judge Russell SC rejected the Council’s defences and found in favour of Mr Willis.
Key findings included:
- Actual Knowledge: The Court accepted that the Council had actual knowledge of the existence of the hole, as its employees had removed the sign and conducted works at the site. It was not necessary that the Council be aware of the precise appearance of the hole on the day of the incident.
- Reasonable Precautions: The risk of harm was held to be foreseeable and not insignificant. A reasonable person in the position of the Council would have taken steps to remediate or clearly mark the hazard. The failure to do so constituted a breach of duty.
- Rejection of Section 43A Defence: The Council’s conduct was not protected by section 43A, as this was not a case involving discretionary statutory powers of the kind contemplated by that section.
Damages
Mr Willis was awarded a total of $133,751.12 in damages, comprising:
- $60,000 for non-economic loss (pain and suffering),
- Over $10,000 for past out-of-pocket expenses,
- Over $15,000 for future medical costs and expenses,
- $48,000 for future domestic assistance (15 hours per week), and
- Minor allowances for travel and other contingencies.
The Council was also ordered to pay Mr Willis’s costs.
Takeaways for Local Authorities and Injured Plaintiffs
This decision reinforces that councils may be found liable for injuries arising from hazards on public land where they have actual knowledge of the risk and fail to take reasonable steps to prevent harm. Importantly, actual knowledge does not require contemporaneous complaints or reports — historical involvement in creating or leaving the hazard may suffice.
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