---
title: "Assess a New South Wales roads authority non-feasance defence before suing"
url: "https://ailawframework.com/practice/personal-injury-and-compensation/assess-a-roads-authority-s-non-feasance-defence-before-suing-over-a-road/new-south-wales"
type: "task_jurisdiction_version"
site: "AI Law Framework"
id: "A21-W20261018-6-NSW"
practice_area: "Personal Injury & Compensation (workers compensation, CTP/TAC, medical negligence)"
tier: "red"
lawyer_review: "required"
jurisdictions: ["NSW"]
last_reviewed: "2026-10-25"
---

# Assess a New South Wales roads authority non-feasance defence before suing

> 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.…

Canonical page: https://ailawframework.com/practice/personal-injury-and-compensation/assess-a-roads-authority-s-non-feasance-defence-before-suing-over-a-road/new-south-wales  
Last reviewed: 2026-10-25

Site index for agents: https://ailawframework.com/llms.txt

## Key facts

| Fact | Value |
| --- | --- |
| Practice area | [Personal Injury & Compensation (workers compensation, CTP/TAC, medical negligence)](https://ailawframework.com/practice/personal-injury-and-compensation.md) |
| Human involvement | Red: Lawyer writes; AI may check, clarify or collect data |
| 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 |
| Written for | New South Wales |
| Applies to | [Assess a roads authority’s non-feasance defence before suing over a road or footpath injury](https://ailawframework.com/practice/personal-injury-and-compensation/assess-a-roads-authority-s-non-feasance-defence-before-suing-over-a-road.md) |

## Checking plan

**Verify against sources**

The tool lists what the records say the authority knew and when. The lawyer decides whether section 45 applies and whether to sue.

- What the AI does: 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 does: Decide whether section 45 applies, whether the defendant is the roads authority, and whether to sue.
- Who reviews: Lawyer competent in this practice area
- Basis: Checked against the linked sources on 23 October 2026. Confirm the current instrument before reliance.

## Checks the lawyer makes

1. 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.
2. 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.
3. 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.
4. 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.

## Notes

- 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).

## Practical guide

Jurisdiction: A New South Wales claim alleging harm from a road or footpath

**Deliverable**: A source-tagged knowledge chronology for the lawyer's decision on section 45.

**Inputs**

- Incident details and photographs
- Inspection, complaint and repair records
- The defendant named, and the scheme if any

**Example**: 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 escalate 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.

Checked 2026-10-23.

## Sources

- [Civil Liability Act 2002 (NSW) section 45](https://classic.austlii.edu.au/au/legis/nsw/consol_act/cla2002161/s45.html) (checked 2026-10-23)
- [Civil Liability Act 2002 (NSW) section 40](https://classic.austlii.edu.au/au/legis/nsw/consol_act/cla2002161/s40.html) (checked 2026-10-23)
- [Civil Liability Act 2002 (NSW) section 3B](https://classic.austlii.edu.au/au/legis/nsw/consol_act/cla2002161/s3b.html) (checked 2026-10-23)

## Forms and precedents for this task

| Form or precedent | Kind | AI level | Summary |
| --- | --- | --- | --- |
| [Notice to a road authority of an incident, asking for inspection and complaint records](https://ailawframework.com/precedents/personal-injury-and-compensation/road-authority-incident-notice-letter.md) | Letter | 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… |

Signed-in accounts can read the full text of each one.

*Practice guidance for planning and review. Confirm current primary sources and the requirements of the actual matter. This is general information, not legal advice.*