Negligence – unknown malefactors moved traffic barriers hired by Council for use in road works – plaintiff injured when he collided with barriers while riding motorbike along road – ss5B, 5C, 5D, 5E & 45 Civil Liability Act 2002 (NSW) – s7(4) Roads Act 1993 (NSW) – s45E Transport Administration Act 1988 (NSW) – held: Council not protected by statutory immunity contained in s45 Civil Liability Act 2002 (NSW) – Council did not owe duty of care to forestall crimes of others that harmed plaintiff – judgment for Council.
Was the Council negligent?
(i) Duty of care
84 The first question to determine is whether the Council owed the plaintiff a duty of care.
85 Neither party submitted that any provision of the Act was relevant to the determination of whether a duty of care existed. Nor was it submitted that this was a novel case.
86 The plaintiff simply submitted that, in accordance with the decision of the NSW Court of Appeal in Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Ltd  NSWCA 263, road authorities have a duty to take reasonable care to protect a road user from the criminal actions of another. In short, that decision concerned the liability of the Roads and Traffic Authority (the RTA) for the death of a truck driver after his truck was struck by a lump of concrete thrown by a third person from an overpass onto the freeway below.
87 In contrast, the Council accepted that RTA v Refrigerated Roadways recognised a limited exception to the general rule established in Modbury Triangle Shopping Centre Pty Ltd v Anzil  HCA 61; 205 CLR 254 that a person does not have a duty of care with respect to the criminal actions of third parties over whom the person has no control. However, the Council submitted that the exception does not apply to the facts of this case, for a number of reasons.
88 First, in this case there was no evidence that traffic barriers had been interfered with on prior occasions. The Council was not aware of the risk that traffic barriers would be moved to obstruct traffic, either generally or with regard to the Woy Woy Road worksite in particular. Secondly, as in Modbury Triangle Shopping Centre v Anzil, the type of harm suffered by the plaintiff here could only arise from criminal conduct. The Council submitted that the extension of liability for the acts of third parties by way of the finding of a duty of care should not occur when the act of the third party under consideration is a wholly criminal one.
89 As well as that, the Council submitted that the fact that there had been no prior incidents in which barriers had been moved to obstruct traffic meant that there was no foreseeable risk of injury. It submitted that it was well established that foreseeability is a necessary condition for the establishment of the existence of a duty of care, and invited my attention to the decision of Sullivan v Moody (2001) 207 CLR 562 at .
90 The Council submitted that the facts of this case were more analogous to those in Kavanagh v Ioannou  NSWCA 2.
91 Turning to my determination with regard to the scope of any duty of care, it is possible to formulate a duty of care at a level of great generality, about which there could be no reasonable dispute. For example, it could not be gainsaid that the Council owed road users generally a duty to conduct road works with reasonable care: Brodie v Singleton Shire Council. However, I do not consider that to state the duty in that way does so with sufficient specificity, or with a sufficient connection to the facts of this case. In particular, I do not consider that stating the duty in that way adequately reflects that what is being asserted by the plaintiff against the Council is that the Council is liable to the plaintiff because of the criminal actions of others that severely injured the plaintiff.
92 In Modbury Triangle Shopping Centre v Anzil, a plurality of the High Court of Australia (Kirby J dissenting) determined that, except in special circumstances, a person does not owe a duty of care to a second person with regard to the criminal acts of a third person: at 265  per Gleeson CJ, at 270 per Gaudron J; at 291-292 , 293-4  per Hayne J; at 299-300 - per Callinan J.
93 In that case, an employee of a tenant of a shopping centre was robbed and severely injured when leaving the shop in which he worked after the lights of the car park had been extinguished. The defendant was the occupier of the car park, and had control over the time when the lights would be extinguished each evening. Previous safety concerns had been brought to the attention of the defendant, but it had refused to extend the hours during which the car park lights would be operating. The persons who robbed the plaintiff were unknown and unable to be sued.
94 Gleeson CJ explained his Honour’s approach at 265 :
Leaving aside contractual obligations, there are circumstances where the relationship between two parties may mean that one has a duty to take reasonable care to protect the other from the criminal behaviour of third parties, random and unpredictable as such behaviour may be. Such relationships may include those between employer and employee, school and pupil, or bailor and bailee. But the general rule that there is no duty to prevent a third party from harming another is based in part upon a more fundamental principle, which is that the common law does not ordinarily impose liability for omissions … [Citations omitted]
95 It is quite true, as the plaintiff submits, that in the subsequent decision of the Court of Appeal of RTA v Refrigerated Roadways it was held that the RTA owed a duty of care to a truck driver with regard to the criminal acts of third parties who had deliberately dropped or thrown a lump of concrete from a freeway overpass, thereby killing a truck driver who was travelling along the freeway. Campbell JA (with whom McColl JA and Sackville AJA agreed) delivered the leading judgment. But an examination of  –  of that judgment reveals that the view of his Honour was founded on a number of discrete aspects of the matter, none of which apply here.
96 First, there was a great deal of evidence that the RTA was well aware of the habit of criminals of dropping heavy items from overpasses with the intention of injuring or killing drivers. Indeed, the documentary evidence reviewed by Campbell JA at - showed that, not only was the RTA well aware of that deplorable phenomenon, but also was in the process of taking steps to forestall it. That may be sharply contrasted with the situation here. Not only was there no suggestion that the moving of barriers across a road in order to harm road users had ever occurred within the boundaries of Woy Woy Council, but also the evidence was that the Council and its employees had no knowledge of such a thing having occurred elsewhere.
97 Secondly, it was noted by Campbell JA that it is well established that the RTA can owe a duty to a road user in circumstances in which there has been a collision between that road user and another driver who has been driving criminally. However, before me, the plaintiff did not submit, in support of the proposition that the Council owed the plaintiff a duty of care for the criminal acts of third parties, that it is common for Woy Woy Council, or councils generally, to be found liable in circumstances whereby the operating force upon a plaintiff is the criminal acts of a third party or parties, whether by way of the nature of their driving or otherwise.
98 Thirdly, his Honour noted that it is not uncommon for the RTA to be found liable for damage cause by rocks that fall from (for example) cliffs that have not been properly secured, and that overshadow freeways. If that be the case, Campbell JA reasoned, it was not inappropriate that a duty of care extend to the circumstances of rocks being dropped or thrown from a height, not as the result of natural forces, but rather of human actions. But again, that consideration does not apply here. It is almost impossible to envisage circumstances in which sturdy plastic barriers (even if empty) could somehow become placed across a road by way of the operation of natural forces.
99 Fourthly and finally, Campbell JA regarded it as important that rocks or other heavy items could have travelled from the overpass to the surface of the freeway without there being a criminal act. His Honour referred to the possibility that a heavy item could be dropped accidentally from a freeway overpass, thereby causing harm. But again, that cannot be said to be the case here. It is virtually impossible to think of circumstances in which a person could place plastic barriers across a public road “accidentally”, and without that conduct constituting a serious offence, whether it be one founded upon a mental element of intention or recklessness, or at the least founded upon criminal negligence.
100 In short, whilst it is quite true that the Court of Appeal of this State found that the RTA owed road users a duty of care for the particular criminal act and in the particular circumstances described in RTA v Refrigerated Roadways, that does not persuade me that there is such a duty of care in the circumstances of this case. Indeed, it can be seen that the four factors that caused Campbell JA to discern a duty of care in the circumstances of that case do not arise in the circumstances of this case.
101 Finally, before leaving this topic, I indicate that I accept the submission of the Council that the facts of this case are more similar to those in Kavanagh v Ioannou than they are to those in RTA v Refrigerated Roadways. In the former case, a service station operator was held not to be liable for the criminal act of an unknown person in slitting the petrol hose of a petrol pump whilst the service station was closed and unattended, which act caused injury to a customer who sought to use the pump. The Court of Appeal did not need to engage in an intricate analysis to confirm that conclusion of the trial judge. Handley JA (with whom Giles JA and Ipp AJA agreed) stated that the duty of care of a service station operator to its customers did not extend to daily inspection of petrol hoses, as prior to the incident “the likelihood of such vandalism would have seemed to a normal operator to be far-fetched and fanciful“: at .
102 In short, I do not consider that the scope of the duty owed by the Council to the plaintiff extended to taking reasonable care to forestall the criminal actions of third parties. I come to that view on the basis of the decision of the plurality in Modbury Triangle Shopping Centre v Anzil, and because I do not consider that the particular facts that pertained in RTA v Refrigerated Roadway have been established here, either directly or by analogy.
103 It follows that the claim in negligence of the plaintiff against the Council must fail, because the Council did not owe a duty of care to forestall the crimes of others that harmed the plaintiff.
David Cormack – Brisbane Barrister & Mediator
NB: appeal by the plaintiff dismissed –