A public authority seeking to rely on s 42 of the Civil Liability Act 2002 (NSW) (financial and other allocation of resources) must plead that reliance fully and clearly in its defence, with particulars of the facts said to give rise to consideration of s 42. Failure to do so may give rise to procedural unfairness and preclude reliance on the provision. The same applies to s 45 (proceedings against public or other authorities based on exercise of special statutory power). A delay of over 13 months in repairing a known, simple footpath defect in a high-priority area is unlikely to be found a reasonable response to the risk, particularly where the repair is modest in scope.
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