In the following article, Partner Robert Tidbury discusses the recent decision of Rankin v Gosford City Council (2015) NSWCA 249 in which the New South Wales Court of Appeal held that a local council’s duty of care did not extend to protecting a motorcyclist involved in a collision from the unlawful conduct of third parties.
Facts
In July 2008 the Gosford City Council was undertaking repairs to a road south of Kariong which required part of the northbound lane to be closed. In accordance with a traffic control plan, some 60 plastic barriers capable of being filled with water were placed alongside the roadway in the northbound lane. Temporary speed controls were also in place.
In the early hours of Sunday 20 July 2008, unknown persons moved four of the plastic barriers so that they were positioned across both lanes of the roadway. At about 5.30am that morning, the appellant was riding his motorcycle on the northbound lane when he collided with the barriers and suffered serious injuries.
In 2011 the appellant commenced proceedings against the council claiming negligence. At trial it was found that the road barriers in question were empty and had not been emptied by the unknown persons. Consequently, it was accepted that the barriers were not being used in accordance with the manufacturer’s instructions.
The trial judge dismissed the proceedings, primarily on the basis that the council did not owe the appellant a duty of care which extended to protecting him from the anti-social and/or criminal acts of third parties.
Judgment
The New South Wales Court of Appeal found that the conclusion arrived at by the trial judge concerning the extent of the council’s duty of care in the circumstances of this claim was correct and, as such, the motorcyclist’s appeal must be dismissed.
In arriving at its decision, the New South Wales Court of Appeal applied reasoning in the High Court decision of Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR254 which held that the 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. In the case at hand, it was determined that there was no special relationship between the local council and the motorcyclist so as to take the case outside the principles referred to in Modbury Triangle.
In its judgment the New South Wales Court of Appeal also compared this claim’s circumstances to those found in Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Ltd (2009) NSWCA 263. That case involved a claim brought by the dependants of a truck driver who was killed while driving along a freeway under an overhead bridge, when four persons dropped a block of concrete onto the truck as it passed under the bridge. It was held by the court in that case that the Roads and Traffic Authority (RTA) were negligent for failing to place a protective screen on the overpass to prevent objects being dropped onto passing traffic.
In the matter at hand, it was determined by the New South Wales Court of Appeal that the reasoning in Refrigerated Roadways did not assist the appellant because, in that case, the RTA owed motorists a duty to take reasonable steps to prevent material falling onto the roadway regardless of its source. In other words, the deliberate dropping of the block of concrete onto the freeway did not fall into a different category from, for example, the accidental fall of an object from a poorly secured load of a vehicle traversing the bridge overhead.
By contrast, in the present case, there was no evidence that there were any means other than the malicious interference of unknown persons which could have led to the barriers blocking the roadway.
In arriving at its judgment the Court of Appeal was also mindful of the fact that the council’s employees gave evidence that they were not aware of any occasion in the past in which a road barrier was moved without authorisation so as to create a hazard to members of the public. The appellant’s expert witness also did not provide evidence of any such incidents. Therefore, there was no other basis upon which a finding of foreseeability could be made. This was considered to be a strong, indeed conclusive, factor against finding that the council owed the appellant a relevant duty of care.
Another factor identified by the Court of Appeal as weighing against a finding that a relevant duty existed, was the difficulty of defining and confining the duty’s limits in relation to the type of conduct in question, namely anti-social conduct of third parties who deliberately relocate items innocently left or placed near a road to create road hazards.
The court observed that if a duty on the part of local councils existed to protect motorists from such conduct, then its application may not be limited to road barriers and could extend to more portable items, such as “zebra barriers”, or even to sand bags used by a council for the purposes of its road works and left beside the road overnight. A more extreme example identified was whether a motorist, who left his car beside the road with the keys in the ignition, would be liable if a wrong-doer moved the car into the middle of the road causing a hazard to road users. To that end the court determined that the imposition of such a duty would give rise to an intolerable burden of potential liability, not only on the council but also on other persons who left items in the vicinity of roads.
An argument raised by the appellant that in the case of road works conducted in a bushland setting, the council should have used concrete barriers, which would not have been moveable except with a crane, was rejected by the court. To that end the court observed that not only were concrete barriers more expensive than plastic barriers and less convenient to use, they would also have created a greater risk of injury to any road users who collided with them. In that regard the risk of a motorist losing control of his or her car and crashing into the barriers was considered to be far greater than that of an anti-social individual moving the barriers onto the road to obstruct traffic.
Take away points
This judgment of the New South Wales Court of Appeal is the latest in a line of established authorities which have applied the reasoning of the High Court in Modbury Triangle, which held that, in general, there is no duty to prevent a third party from harming another.
However, as noted by Gleeson CJ in Modbury Triangle, there may be circumstances whereby the criminal conduct resulting in the harm is characterised by such a high degree of foreseeability and predictability, that it is possible to argue that a particular case would be taken out of the operation of the general principle, such that the law may impose a duty to take reasonable steps to prevent the harm caused by third parties.
Therefore, evidence adduced in a given case concerning the past history of (or lack thereof) similar incidents of criminal activity in the relevant locality, together with a consideration as to whether or not the alleged negligent party had knowledge of that history, are factors which may influence the court’s assessment in determining whether there exists in a particular case a duty to prevent a third party from harming another and, if so, the extent of that duty.
In the absence of a special relationship between the parties, the mere fact that the injured party can point to alternative or additional measures, which had they been implemented, may have reduced the risk of injury, will not by itself establish the existence of the relevant duty, or a breach of it.
For more information or discussion, please contact HopgoodGanim Lawyers' Insurance & Risk team.