Assess a New South Wales roads authority non-feasance defence before suing
MaintainedLast reviewed
Key facts
- Human involvement
- RedLawyer-led
- How AI is used
- From the incident details, photographs and the authority's records, build a source-tagged list of what the authority knew about the particular risk, and when, and of any inspection or repair. Do not decide whether to sue.
- What the lawyer must review
- Decide whether the allegation is a failure to carry out road work, or to consider it
- Section 45 needs actual knowledge of the particular risk. Knowledge alone creates no duty
- Section 45 is not in the motor-accident list in section 3B(2). Check section 40
- Do not use section 45 for work injury damages or statutory workers compensation
Rules that apply
The document starts from the task name. Change it if this piece of work is different.
The work product
Forum. A New South Wales claim alleging harm from a road or footpath
Produce. A source-tagged knowledge chronology for the lawyer's decision on section 45.
Have ready. Incident details and photographs; Inspection, complaint and repair records; The defendant named, and the scheme if any.
Example of the limit. Illustrative example: The complaint register shows a report of the same defect six weeks before the fall, addressed to the council named as defendant. The tool records that report and its date. The lawyer decides whether that is actual knowledge of the particular risk and whether section 45 can apply to this claim.
Stop and hand it back when
- The draft says the authority is liable, or that knowledge of the risk creates a duty.
- Section 45 is applied to a motor accident award, work injury damages, or statutory workers compensation without the section 3B check.
Sources for this task were checked on 2026-10-23.
Who does what
| Role | What they do |
|---|---|
| Assistance | Supporting preparation only. From the incident details, photographs and the authority's records, build a source-tagged list of what the authority knew about the particular risk, and when, and of any inspection or repair. Do not decide whether to sue. The tool writes nothing into the document. Substantive advice, judgement and any restricted content remain with the responsible human. |
| Lawyer | Perform the substantive analysis and decisions. Independently check any permitted supporting work and approve the exact output for its intended use. |
Checklist
- Civil Liability Act 2002 section 45(1): a roads authority is not liable for harm arising from a failure to carry out road work, or to consider carrying out road work, unless at the time of the alleged failure it had actual knowledge of the particular risk the materialisation of which resulted in the harm.
- Section 45(2) does not create a duty of care merely because the authority had actual knowledge of the risk, and it does not affect any standard of care that would otherwise apply. Section 45(3) gives 'carry out road work' and 'roads authority' the meanings stated there, by reference to the Roads Act 1993.
- Section 40: Part 5 applies to civil liability in tort, extends to such liability if damages are sought in contract or another action, and does not apply to liability excluded by section 3B.
- Section 3B(2)(a) applies Divisions 1 to 4 and 8 of Part 1A to motor accidents. Section 45 is in Part 5 and is not in that list. Section 3B(1)(f) takes work injury damages outside the Act except Part 1B. Section 3B(1)(g) takes statutory workers compensation outside the Act.
Forms and precedents for this task
| Form or precedent | Kind | AI use | Summary |
|---|---|---|---|
| Notice to a road authority of an incident, asking for inspection and complaint records | Letter | AI use Yellow | A letter giving a Victorian road authority the particulars of a notice of incident, and asking a road authority in Victoria, Queensland or New South Wales for the inspection, complaint and repair records for the site. |
Signed-in accounts can read the full text of each one. All precedents.
Sources
- Civil Liability Act 2002 (NSW) section 45 · 2026-10-23
- Civil Liability Act 2002 (NSW) section 40 · 2026-10-23
- Civil Liability Act 2002 (NSW) section 3B · 2026-10-23
The lawyer identifies the roads authority. The tool does not decide care, control or actual knowledge.
Health and wage records stay in a firm-controlled tool. Australian Solicitors' Conduct Rules rule 9 and Australian Privacy Principle 11 apply, and a breach may be notifiable under the Privacy Act 1988 (Cth).