Further to the earlier post the appeal by the plaintiff was dismissed.
The plaintiff argued on appeal that if the barriers could be removed, then it was reasonably foreseeable that unidentified persons would do so and cause a risk to road users, which the council was liable for. Hence, the plaintiff argued the barriers should have been constructed of concrete or filled with water.
Given the risk materialised in such a way the court considered the principles in Modbury Triangle Shopping Centre Pty Ltd v Anzil  (2000) 205 CLR 254; HCA 61. The Court of Appeal referred to the Modbury principles as:
 “[t]he unpredictability of criminal behaviour is one of the reasons why, as a general rule, and in the absence of some special relationship, the law does not impose a duty to prevent harm to another from the criminal conduct of a third party, even if the risk of such harm is foreseeable.”
The court referred to RTA v Refrigerated Roadways Pty Ltd (2009) 77 NSWLR 360;  NSWCA 263 and their consideration of the Modbury principles at :
“ In Modbury at … , Hayne J explained how the duty of care of an employer to take reasonable care to prevent an employee being robbed could exist. He said: ‘The duty which the employer breaks in such a case is not a duty to control the conduct of others. It is a duty to provide a safe system of work and ensure that reasonable care is taken’ (footnote omitted). In a similar way, if it were the case that Mr Evans’ death resulted from a breach of a duty of care by the RTA, the duty breached would be the RTA’s general Brodie duty, not some exceptional duty to control the conduct of others. In my view, the duty of care that the RTA owes, of the type recognised by the High Court in Brodie, has a content that does not exclude taking reasonable care to protect a motorist from the criminal actions of another.”
Again the court at paragraph  considered Modbury as discussed in the RTA decision (at paragraph 131):
“… it is significant that the type of harm suffered by the plaintiff in Modbury Triangle is a type of harm that could arise only through criminal conduct. In that respect it differs from the type of harm suffered by Mr Evans in the present case. A motorist travelling on a freeway could suffer physical injury as a result of an object falling from an overhead bridge and striking his or her vehicle even if no criminal conduct was involved. Such an event could happen as a consequence of part of a poorly secured load on a truck going over the overbridge becoming loose and falling over the edge, or as a result of some object that a pedestrian on the bridge was carrying or playing with accidentally going over the edge.”
The court found the reason for the incident was the criminal act of placing the barriers on the roadway and dismissed the appeal.
David Cormack – Brisbane Barrister & Mediator