Statutory defences: evidence gathering for public or other authorities

By Rachael Arnold and Clare Campbell

Reliance on the defences available to public and other authorities[1] under Part 5 of the Civil Liability Act 2002 (NSW) (CLA)[2] requires a forensic approach to evidence gathering. As demonstrated in the following cases, public and other authorities may be required to produce sensitive and otherwise confidential information to support defences including financial data, internal communications and internal policies. In this regard, the evidentiary burden of establishing a Part 5 Defence should not be underestimated.

Hodgson v Sydney Water Corporation [2016] NSWDC 361


The Plaintiff sued Sydney Water Corporation (SWC) in relation to a fall that occurred when the Plaintiff was crossing a drain owned by SWC. The Plaintiff claimed that the drain was slippery and dangerous at the time. SWC alleged that the risk of injury was an obvious risk under section 5F of the CLA and relied on the statutory defences under sections 42 and 43A of the CLA.


SWC relied on the following evidence:

  • oral evidence as to its financial limitations;
  • briefing material to SWC’s engineering firm in relation to the drain;
  • evidence arising from a public meeting called by SWC surrounding the drain in question;
  • evidence from an employee of SWC as to SWC’s activities/responsibilities; and
  • evidence of a warning sign constructed in the area.

The Court considered that the oral evidence of the financial limitations of SWC’s business was insufficient under section 42. The Court also considered the interim measures taken by SWC and determined that they were insufficient to attract the protection of section 43A. SWC’s actions in taking years to respond to the risk were so unreasonable that no public authority having the special statutory power in question could properly consider the omission to take action to be a reasonable failure to exercise its powers[4].


The Court found that SWC was in breach of its duty of care. Sections 42 and 43A did not operate to excuse the liability of SWC.

Bankstown City Council v Zraika (by his tutor Zraika) and Others AND Roads and Maritime Services v Zraika (by his tutor Zraika) and Others [2016] NSWCA 51


The Plaintiff was being carried in utero by his mother, who was a passenger in a car driven by the Plaintiff’s father. The Plaintiff’s car collided at an intersection with another vehicle. The Plaintiff sued the other driver and owner of the vehicle, RMS and Bankstown City Council. At trial, the primary judge found that both the Council and RMS were in breach of their respective duties of care and that the driver and the owner of the vehicle were also liable. On appeal, the Court of Appeal overturned the primary judge’s decision and found that the Council and RMS were not liable by virtue of the public authority defences.


The Council tendered the following evidence in successfully relying on section 44 and 43A defences:

  • development applications made in respect of intersection;
  • internal council documents in relation to intersection;
  • traffic engineer memorandums;
  • letters from local police expressing concern over intersection exits; and
  • agreements and bank guarantees relating to maintenance of proposed alternations to intersection.

RMS expressly abandoned a section 44 defence at trial, and was not entitled to raise it on appeal. It was entitled to rely on section 43A, for which their Honours considered:

  • crash data for the intersection;
  • traffic studies at the intersection; and
  • interim measures taken by the RMS with respect to the intersection


Their Honours found that the Council did not breach its duty of care by virtue of section 44 and 43A. Their Honours also found that RMS did not breach their duty of care on the basis of section 43A as the conduct of the RMS was not so unreasonable that another public authority would consider it an improper exercise of power.

Mansfield v Great Lakes Council [2016] NSWCA 204


The Appellant drove his fully laden water truck along a single lane track of a roadway. On crossing over a culvert, the left-hand side of the bank gave way, resulting in his truck rolling over into the water course.

Great Lakes Council (GLC) was the roads authority responsible for the care and maintenance of the road. The Appellant claimed that the harm suffered was a result of the negligence of the GLC in failing to build a sufficiently large culvert with head walls which could have prevented the erosion and collapse of the embankment. GLC relied on sections 43A and 45 of the Act as defences.

The primary judge held that the Appellant failed to establish liability on the on the part of the council. The Appellant appealed on the basis that GLC’s conduct was not such that it could attract the protection of sections 43A and 45. On appeal, their Honours upheld their decision that GLC was not liable as it successfully made out defences under section 43A and 45 on the basis of evidence served.


GLC pleaded sections 43A and 45 as defences to the negligence claim. It relied on:

  • oral evidence by an employee as to the maintenance work conducted by it;
  • oral evidence by an employee as to complaints system maintained by it;
  • oral evidence of the complaints made about the culvert;
  • evidence of rainfall in the area of the culvert; and
  • evidence of ancillary roads inspection in relation to the culvert.

Their Honours were receptive to this evidence in concluding that the failure of GLC to replace the culvert with a larger pipe and head wall was not a failure attracting liability under section 43A. Their Honours referred to the complaints made about the culvert in determining whether GLC has actual knowledge of GLC for the purposes of section 45.


Their Honours found that there was no failure on the part of GLC to exercise a statutory power within the meaning of section 43A. The actions of GLC were not so unreasonable that no roads authority could properly consider the omission to be a reasonable failure to exercise its statutory powers.

Their Honours found that GLC did not have actual knowledge of the particular risk posed by the culvert, therefore was excused from liability under section 45.

Kempsey Shire Council v Five Star Medical Centre Pty Ltd [2018] NSWCA 308


The Plaintiff flew an aircraft from Port Macquarie to Kempsey Aerodrome. On landing at Kempsey Aerodrome, the aircraft collided with a kangaroo. The Plaintiff brought proceedings against Kempsey Shire Council in negligence for costs of repairing the aircraft.

At first instance, the primary judge found Kempsey Shire Council breached its duty of care for failing to warn the Plaintiff and failing to erect a kangaroo-proof fence. The primary judge found that the principles in section 42(a) did not apply to the Council as the operation of the Aerodrome were not required by law.


On appeal, the Council successfully relied on the section 42 defence. In doing so, it had relied at trial on the following evidence:

  • oral and written statements by the Council’s Director of Infrastructure Services as to the profit and losses of the airport’s operations and the Council generally;
  • extracts of the Council’s financial accounts; and
  • oral and written statements by the Council’s Director of Infrastructure Services as to the number of motor vehicle accidents versus the number of plane movements at the Aerodrome.

Their Honours held the protection in section 42(a) is not limited to functions that public authorities are legally required to exercise. In the case of councils, it extends to functions exercised in response to requirements imposed by the needs of the community as understood by a council.

Their Honours held that the Council did not have available resources to build a fence, without reducing funds allocated to other works and purposes. Section 42(b) precluded the Court from finding a breach of duty by failing to take a precaution, where a decision to take the precaution required an assessment of conflicting demands on the Council’s budget.


The Council did not breach its duty of care to the Plaintiff and could rely on sections 42(a) and 42(b).

Weber v Greater Hume Shire Council [2019] NSWCA 74


The Greater Hume Shire Council (Council) operated a waste disposal site. A fire ignited at the site and quickly spread to the appellant’s house, and the appellant’s house was destroyed.

At trial, the Court found that the Council breached its duty of care to the appellant. The defences under sections 42 and 43A were not available to the Council.

However, the trial judge found that the appellant did not demonstrate causation and the proceedings were dismissed. The Appellant appealed, and the Council also filed a notice of contention challenging the finding of liability and lack of defences under sections 42 and 43A.


The Council attempted to rely on the defences in sections 42 and 43A. In doing so, the Council relied on the following evidence:

  • statements from Council’s general manager and accounts officer as to the financial performance of the waste site and the Council’s other waste operations;
  • statements from the Council’s waste operation reserves account;
  • the Council’s waste operation budgets; and
  • the Council’s overall financial reports.

The Court found that the Council’s management of the waste site was not undertaken pursuant to a special statutory power. The steps required to be taken on the disposal site were steps that could have been readily taken by any person having management of the land for waste disposal purposes, without any specific statutory authority. Therefore, the defences under section 43A were not available to Council.

Although the Council’s waste management operations were suffering losses, the Council’s overall financial statements indicated that there were sufficient unallocated funds available at the relevant time for it to undertake the steps necessary to reduce the risk of the ignition or spread of fire. There were no financial constraints that would have precluded the Council from taking the precautions listed.


The Council could not rely on sections 42 or 43A. The appeal was allowed and judgement entered for the Appellant.


These cases reveal a number of evidentiary requirements in public authority negligence cases. The cases show that if a defence under Part 5 is raised, there must be adequate and appropriate evidence to support it. The mere assertion of a Part 5 Defence will be insufficient to avoid liability. It is critical for authorities to recognise from the outset of an incident or claim, there will be an interrogation of the categorisation and response to risks.

[1] Defined in s41 of the CLA.
[2] ‘Part 5 Defence’
[3] At 163.
[4] At 180.


Rachael Arnold

Rachael is a well-rounded and experienced insurance lawyer with a focus on general insurance and product liability.

Clare Campbell

Clare is an experienced insurance partner with a current focus on personal injury and property damage claims.

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