What happened

El-Kak fell while walking on a Bankstown footpath on 27 February 2016. The Court regarded her as an honest witness, but the photograph of the alleged crack had no established photographer or date and no measurements of its length, width or depth. The council accepted care and control of the footpath while disputing responsibility for the telecommunications pit itself.

The issues

The issues were whether the crack presented a risk requiring precautions and whether the council had actual knowledge of that particular risk. Earlier complaints about defects elsewhere in the area raised the distinction between what an authority might have discovered and the actual knowledge required by s 45 of the Civil Liability Act 2002 (NSW).

The court's decision

The claim was dismissed because the evidence did not establish a risk that was not insignificant or precautions reasonably required in response. Alternatively, the earlier complaints concerned other locations and did not establish actual knowledge of the particular risk, so s 45 protected the council. The plaintiff was ordered to pay costs, including indemnity costs for part of the proceedings under the operative orders.

What this case shows

Proof of a fall and honest testimony did not establish negligent footpath maintenance. Evidence about the defect's physical condition and the precise risk known to the council mattered. Complaints about nearby locations were not treated as actual knowledge of the defect said to have caused this fall.

Why another case may differ

The result did not rest on an obvious-risk defence or contributory negligence; both were abandoned in submissions. Negligent repair was disclaimed, and negligent inspection was not pleaded or added by amendment. The damages discussion was an alternative assessment only, not compensation awarded to the plaintiff.

Applying it to your claim

Different facts, evidence or procedures, an appeal, or a change in the law may affect how this decision applies. This is general information, not a report of a case handled by Park & Co Lawyers.

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