A trial judge may not interpret photographs taken years after construction to determine the condition of works at the time of construction without expert evidence. Findings couched in the language of what 'would have been' visible or what inspections 'would have revealed' are findings of constructive knowledge, not actual knowledge, and are insufficient to displace the s 45(1) immunity. The question whether the majority in Roman correctly construed s 45(1) was not resolved by the majority, as the case was decided on the anterior question of whether actual knowledge was established at all.
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