Judges have announced their decisions on two public liability cases that went before the Court of Appeal early in 2015, and the rulings provided an early Christmas present for one of the claimants but not the other.


Both individuals pursued separate public liability claims against local authorities after they fell over in council-governed areas and suffered serious injuries. However, while one plaintiff’s successful claim was upheld on appeal, the other was unable to overturn a previously rejected case.

So why did they come away with different results after the Court of Appeal hearings? Before exploring these two cases in more detail, let’s examine the claims and appeals processes for accidents that occur when you’re on publicly owned land.

Civil liability claims

Anyone who comes to harm in a public place may be eligible for compensation under the Civil Liability Act 2002. Claims are typically split between public liability and occupiers’ liability.

The former refers to accidents that occur in public places, such as council car parks or footpaths, while the latter covers incidents that happen on other people’s premises. Occupiers’ liability would include injuries sustained in restaurants, shops or private residences, for example.

Successful claims could result in damages across a range of economic and non-economic factors, including:

Past and future loss of earnings
Past and future loss of superannuation
Past and future medical expenses and treatments
Out of pocket costs
Miscellaneous requirements, such as home modifications and aids
Pain and suffering
With the right legal advice, claimants can have the best chance of their public liability case providing them with a financial safety net when injuries cause physical and/or psychological problems.

The appeals process

Every case is unique and civil liability legislation has various nuances that could swing a verdict in either direction. Therefore, it is not uncommon for plaintiffs or defendants to appeal the first decision if it does not go in their favour.

This is why it’s crucial to enlist the services of an expert NSW compensation lawyer. They will not only gather key evidence and argue your claim in the first instance but also compile a strong enough case to win an appeal.

To see how the appeals process works in practice, we’ll return to the two public liability claims cited earlier in the article and examine how they played out in court.

public liability

Appeals for public liability claims. The appeals process is available to plaintiffs and defendants who disagree with the original ruling.

Hornsby Shire Council v Viscardi

The first case saw Hornsby Shire Council launch an appeal against a claimant who had received $117,436.80 after falling over a triangular-shaped depression of bitumen in a car park and injuring his right shoulder.

Both parties in the original case acknowledged that the patch was the result of restoration work to cover a previously opened section of ground. The trial judge ruled the council was responsible for the project and had been negligent in carrying it out.

On appeal, the council argued that its maintenance team did not do the restoration and instead claimed it was either a rogue party, such as an independent plumber, or the Water Board. The local authority also contended that the accident was the result of negligence.

The Water Board was quickly dismissed during proceedings as a candidate, due to the fact the organisation had not applied for a road closure, which would have been a requirement. The appellate judges also ruled that a rogue party was unlikely due to the project making use of hot mix bituminous asphalt and saw cutting, both of which are regularly utilised by the council’s maintenance team.

The Court of Appeal dismissed the council’s case on all counts, with the local authority required to bear the additional costs. The claimant retained his award for damages.

Nightingale v Blacktown City Council

Unfortunately, the appeals process does not always go your way, as the appellant discovered following an unsuccessful attempt to overturn a previous decision.

The man sustained injuries to his foot and ankle when he stepped into a sunken area of footpath. He claimed the council had been negligent in failing to repair the path, warn people of the danger, light the area and have a proper maintenance system in place.

However, the trial judge ruled the council was not liable for the accident due to Section 45 of the Civil Liability Act. The section states that a ‘road authority’ was not liable for failing to carry out repairs if it does not have ‘actual knowledge’ that maintenance is required.

Precedent set in North Sydney Council v Roman showed officers with the power to conduct repairs must be the ones in possession of this information.

The appellant was unable to provide on appeal that the relevant individuals at Blacktown City Council had knowledge of the footpath’s deterioration, with a majority of the appellate judges deciding to reject his appeal.

These two cases highlight some of the challenges you may encounter during the appeals process for civil liability claims. Nevertheless, expert personal injury lawyers can guide you through your options and build the strongest case possible for you to succeed.