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 relevant legislation provides the Council with protection from people making claims due to the Council's 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 hazards within their Council. Examples of these hazards include potholes, broken and raised pathways and footpaths.

The relevant legislation was discussed in the 2015 case of Nightingale v Blacktown City Council [2015] NSW 423. In Nightingale, a man suffered injury as a result of tripping on an uneven 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 the defect. In accordance with 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 find out whether the Council had “actual knowledge”?

Ardent Lawyers may be able to assist you to investigate your claim against the Council on a “no win no fee” basis. This means that if we investigate your claim 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.

If we are successful in your claim, we may be able to claim compensation for you for:

• pain and suffering

• past and future treatment expenses

• past and future wage loss

• past and future domestic care and assistance

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 2009 (NSW). This request will force the Council to provide us with the information we request about the hazard. This request will give us an initial idea as to whether we are able to assist you with a claim against the Council.

Ardent Lawyers are personal injury / compensation law experts. If you have suffered an injury on Council property, and you would like to know more information about a potential claim against the Council, contact our law firm on (02) 4444 6808 or by email at contact@ardentlawyers.com.au.