Rankin v Gosford City Council

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment

1. BASTEN JA: In July 2008 the Gosford City Council was engaged in repairs to a section of Woy Woy Road where it ran through bushland south of Kariong. The area where work was being undertaken required that part of the single northbound lane be closed. In accordance with a traffic control plan prepared by a Council officer, some 60 hollow plastic barriers, capable of being filled with water as ballast, were placed along the roadway in the northbound lane. There were also temporary speed controls in place.
2. In the early hours of Sunday, 20 July 2008, unknown persons moved a section of the chain of barriers so that approximately four barriers were positioned across both lanes of the roadway. At about 5.30am, the appellant, Steven Rankin, riding his motorcycle north along Woy Woy Road collided with the barriers where they crossed his northbound lane. He suffered serious injuries, particularly to his right leg.
3. In 2011 the appellant commenced proceedings against the Council seeking damages for its negligence. For reasons which are not entirely clear, the proceedings were brought and determined in the Supreme Court. The trial judge, Button J, dismissed the proceedings, primarily on the basis that the Council did not owe Mr Rankin a duty of care which extended to protecting him from the antisocial, not to say criminal, conduct of third parties: Rankin v Gosford City Council. [1] That conclusion has not been shown to be wrong and, accordingly, the appeal must be dismissed.

(a) background circumstances

1. The appellant's case, both at trial and in this Court, can be succinctly stated. He accepted that it was appropriate for the Council to place traffic barriers along the section of road where the works were taking place. He submitted, however, that it was readily foreseeable that, if the barriers were moveable, malicious, irresponsible or antisocial persons might move the barriers from their correct position, so as to block the roadway. Whatever might be the position in urban areas, he submitted that the risk of such activity was not insignificant in a bushland area where there was no housing, no pedestrian traffic and no lighting. He argued that, according to industry practice, concrete barriers should have been used which would not have been moveable except with a crane. In the alternative, if it were thought to be acceptable to use water filled barriers, then the duty of the Council was to ensure that the barriers were filled with water, again rendering them immovable without mechanical assistance. The concrete barriers were said to be necessary because water filled barriers could easily by emptied.
2. Although traffic barriers are a common sight on roadways, it is desirable to describe their structure, weight and function in a little more detail. The Council's traffic control plan specified the barriers to be used as "Triton Crash Barriers TL2". As described in the manufacturer's brochure, the barriers have a strong plastic shell with an internal steel framework. They are approximately 80cm high and 53cm wide at the base. The overall length of a single barrier is a little over 2 metres. The barriers have a connecting "knuckle" and can be held together with a pin. A steel cable is passed through a grove in the top of the barriers. When empty, each barrier weighs 65kg; when full, 610kg. Different models are designed to resist different forces: the TL2 is described as a "50-70km/h work zone crash rated barrier". Their shape, as described in the brochure, is designed so that "[t]he inwardly sloping ribbed side walls interact with an impacting vehicle in a way that resists penetration, vaulting, and under-riding."
3. When joined, the segments can swivel 9.7 degrees, allowing them to be placed in a circle with an inside radius of 19.8 metres.
4. Although little turned on this feature on the appeal, at trial attention was paid to a plastic "fill level indicator" which should have been visible, extending from the top of each barrier, if it were filled with water. An expert called by the appellant, Mr Wayne Duckworth, thought it significant that photographs of the barriers in place on Woy Woy Road near the time of the accident revealed no fill indicators. However, the Council's road construction overseer, Mr Andrew Baxter, gave evidence that the indicator would only be visible if the barrier were filled to within 200mm of the top and that the indicators were often jammed or broken.
5. There was evidence that the barriers had been filled with water shortly after they were installed, some 17 days before the accident. Each segment had a release valve near the base at one end which could be used to empty the water. Although there was conflicting evidence as to whether the road was wet or dry after the accident, the trial judge was satisfied that the unknown persons who pulled the barriers across the roadway were not responsible for releasing water from them. There was no suggestion that any had been moved from the positions in which they were installed at the commencement of the road work, until the night of the accident.
6. Some details of the accident scene were left uncertain by the evidence. The appellant was discovered by a motorist who arrived approximately 15 minutes after the accident, who was a witness at the trial. Although two police officers later attended at the scene and one officer recorded some details in an official notebook, both had left the force and could not be located before the trial.
7. Two days after the accident, two friends of the appellant attended the scene and noted that a number of the barriers were empty and could be moved by hand. However, the Council was not notified of the accident until nine months later. A return receipt provided by Coates Hire Operations Pty Ltd, from whom the barriers had been obtained, was dated 3 September 2008, indicating that the roadwork had been completed by that date.
8. Mr Baxter kept a diary of the work undertaken, which was in evidence. He also gave evidence at the trial, including an explanation that the first two barriers facing oncoming traffic, which were placed so as to form a taper at the end of the work area, were not filled with water. [2] Precisely how many barriers were moved and whether a pin was removed to allow a tighter angle than the swivel available when the barriers were pinned together is not known. The two lanes on the roadway were 3.2 metres wide, suggesting that, if barriers had been roughly at right angles to their original placement, and across the road, as suggested by the witness who arrived on the scene after the accident, three or four barriers would have been sufficient to cover the distance.
9. The finding of the trial judge that the barriers which were moved were empty and were not emptied by the unknown persons, was not challenged. Accordingly, it was accepted that the barriers were not being used in accordance with the manufacturer's instructions.

(b) factors relevant to existence of duty

1. Although it could be said that the Council, as a road authority, had a duty to take care for the safety of road users when undertaking repairs and maintenance work, that statement of responsibility operates at too high a level of generality to be useful in the present case. A more careful statement of principle might rely upon a factor identified as relevant in many circumstances, namely the element of control. Thus, the Council had the legal authority to control the road works and to impose controls over traffic to provide for safe use of the roadway whilst the works were being undertaken. Not only did the Council have such legal authority; it exercised it in the present case. One means of control was the placement of the crash barriers along the northern carriageway where the works were being undertaken. These were factors of the kind commonly relied upon under the general law as indicating a circumstance where a duty of care would arise. That assessment is, however, subject to three qualifications.
2. First, it disregards the purpose for which the barriers were in place. As explained by Mr Duckworth: [3] "The traffic barriers are designed to protect workers who may be subject to motor vehicles being out of control and a danger to workers. The traffic barriers prevent or inhibit vehicles from leaving the roadway and entering the area where the workers may be impacted and injured by motor vehicles."
3. Secondly, the elements noted above omit reference to the particular risk which materialised, namely the intervention of unknown persons who moved the barriers from their correct placement. As explained by Dixon J in Smith v Leurs: [4] "It is, however, exceptional to find in the law a duty to control another's actions to prevent harm to strangers. The general rule is that one man is under no duty of controlling another man to prevent his doing damage to a third. There are, however, special relations which are the source of a duty of this nature."
4. Accordingly, the concept of "control", in circumstances where the defendant is held responsible for the acts of a third party in causing harm to the plaintiff, usually envisages control of the third party. Thus, the exception recognised by Dixon J in Smith v Leurs was the responsibility of a parent to control a young child. Other examples include the responsibility of prison authorities with respect to control of prisoners.
5. Thirdly, it is necessary to have regard to the language of the Civil Liability Act 2002 (NSW) which governs claims in negligence for personal injury. [5] This point requires separate development.

(c) statutory provisions

1. As has been noted on more than one occasion, the elements relevant to identification of the scope of a duty, a breach of duty and causation with respect to harm are not to be found in self-contained compartments, but tend to overlap. [6] Thus, although the focus of s 5B of the Civil Liability Act is breach of duty, [7] the matters identified are also relevant to the existence of a duty of care. The section provides: 5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm.
2. The chapeau to subs (1) refers to "precautions [to be taken] against a risk of harm". As stated by Gleeson CJ in an analogous situation in Modbury Triangle Shopping Centre Pty Ltd v Anzil: [8] "In some cases, where there is a problem as to the existence and measure of legal responsibility, it is useful to begin by identifying the nature of the harm suffered by a plaintiff, for which a defendant is said to be liable."
3. In other words, a general law assessment of the existence and scope of a duty of care must have regard to the nature of the risk of harm identified in s 5B(1). Similarly, whether the risk was foreseeable was (and is) a critical criterion for the existence of a duty. [9]
4. The next element in s 5B(1), namely a requirement that the risk be not insignificant, must again be relevant to the question of duty. [10] It would not be meaningful, in a practical sense, to say that the law imposed a duty to take reasonable care with respect to an insignificant risk. Finally, it would not be meaningful to say that there is a duty to take reasonable precautions in circumstances where a reasonable person would not take such precautions against the identified risk of harm. [11]

(d) whether duty owed to plaintiff

1. The primary duty owed by the Council to a road user was to ensure that proper signage was in place to warn motorists of a temporary hazard, to indicate clearly where the temporary lanes were situated and to impose a speed limit appropriate to the changed conditions. Steps were taken in those regards and there was no suggestion that those precautions did not properly address the risks created by the road works. On the other hand, if the crash barriers were ineffective, because not adequately filled with water, the risk which might materialise was that a vehicle would enter the worksite, with the real likelihood of injury to a worker and the possibility of injury to the driver, part of the roadway and the guardrail having been removed. However, those were not the risks which materialised. Thus, the only breach of duty upon which the plaintiff could base his cause of action was a duty owed to him, to take precautions against a risk of harm which materialised. [12] However, that risk must be identified as the risk that maleficent or irresponsible third parties would unlawfully move the barriers across the roadway. To ascertain whether a legal duty should be imposed on the Council with regard to such conduct, it is necessary to return to the reasoning in Modbury Triangle.
2. The plaintiff in Modbury Triangle was the employee of a business operating within the shopping centre. He was attacked by three assailants whilst crossing the car park at night. The complaint of negligence against the owner of the shopping centre was based on the fact that the car park lights had been turned off at a time when there were still employees and customers at the businesses, including at automatic teller machines in the centre.
3. In referring to the basis for limiting liability with respect to the criminal activities of third parties, Gleeson CJ noted that "[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." [13]
4. The appellant did not take issue with this statement of principle: rather, he asserted that the relationship between a road authority and a road user was a "special relationship" taking the case outside the principle referred to in Modbury Triangle. However, in this regard the appellant's case gained little support from the statements in Modbury Triangle itself. The Chief Justice referred to the reasoning of Mason J in Kondis v State Transport Authority, [14] noting that a special responsibility or duty may arise as between a hospital and its patients, a school authority and children and on the part of a landlord with respect to a tenant's property. Mason J continued: "In these situations the special duty arises because the person on whom it is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised." [15]
5. To similar effect, Hayne J (who agreed with Gleeson CJ) stated: [16] "In those cases where a duty to control the conduct of a third party has been held to exist, the party who owed the duty has had power to assert control over that third party. A gaoler may owe a prisoner a duty to take reasonable care to prevent assault by fellow prisoners. If that is so, it is because the gaoler can assert authority over those other prisoners. Similarly, a parent may be liable to another for the misconduct of a child because the parent is expected to be able to control the child."
6. Hayne J added that an occupier of land "has power to control who enters and remains on the land and has power to control the state or condition of the land." It was, he continued, "these powers of control which establish the relationship between occupier and entrant 'which of itself suffices to give rise to a duty ... to take reasonable care to avoid a foreseeable risk of injury' to the entrant." [17]
7. Gaudron J expressed her agreement with the reasons of the Chief Justice and with those of Hayne J and particularly with respect to the "emphasis on the significance of control over third parties before the law imposes a duty of care to prevent foreseeable damage from their actions." [18] Similar reasoning is to be found in the judgment of the fourth member of the majority, Callinan J. [19]
8. The second authority upon which the appellant placed particular reliance was Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Ltd. [20] The case involved a claim by the widow and children of a truck driver (Mr Evans) who was killed when driving along the F5 Freeway under an overhead bridge near Menangle, south of Campbelltown. Four persons dropped a block of concrete onto the truck as it passed under the bridge, killing the driver. Their identities were known: at the time of the civil trial they had been convicted and sentenced. The question was whether the RTA was in breach of its duty to road users in failing to place a protective screen on the overpass to prevent objects being dropped onto passing traffic. The appeal was upheld and the claim by the plaintiffs dismissed: however, the reasoning extended to some 450 paragraphs and some care must be taken to identify principles which were necessary to the determination of the case. For present purposes, the submissions focused upon a passage appearing under the heading "RTA's Duty of Care" at [115]-[142].
9. The reasoning in this passage has a number of strands. First, the final conclusion is expressed in the following terms at [142]: "While the fact that an object's falling has been caused by criminal conduct is clearly important in deciding whether the RTA has a liability in negligence concerning it, the criminality of the dropping of the object enters the analysis at the levels of breach of duty, and causation of damage, not at the level of existence of a duty of care."
10. Taken at face value, that proposition might be thought curious: the principle that, absent special relations, a person did not have a duty to protect another from the criminal conduct of a third party was set out in the judgment at [121]-[130]. However, the apparent inconsistency is resolved by reference to the second strand in the reasoning. That is summarised in the following paragraphs: "[138] In Modbury at … [110], 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). [139] 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. … [141] 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."
11. The question then must be what was the "general Brodie duty" relied upon? The answer is to be found in a passage from Brodie v Singleton Shire Council [21] (set out in Refrigerated Roadways at [116]) in the following terms: "The duty which arises under the common law of Australia may now be considered. Authorities having statutory powers of the nature of those conferred by the [Local Government Act 1919 (NSW)] upon the present respondents to design or construct roads, or carry out works or repairs upon them, are obliged to take reasonable care that their exercise of or failure to exercise those powers does not create a foreseeable risk of harm to a class of persons (road users) which includes the plaintiff. Where the state of a roadway, whether from design, construction, works or non-repair, poses a risk to that class of persons, then, to discharge its duty of care, an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its powers within a reasonable time to address the risk. If the risk be unknown to the authority or latent and only discoverable by inspection, then to discharge its duty of care an authority having power to inspect is obliged to take reasonable steps to ascertain the existence of latent dangers which might reasonably be suspected to exist."
12. As the reasons in Refrigerated Roadways noted, the novelty of the judgment in Brodie lay in its recognition that "a highway authority could be liable in the tort of negligence for failure to exercise its statutory powers." [22] In many cases, the application of that principle will require consideration of the application of Pt 5 of the Civil Liability Act (ss 40-46) which was enacted in response to the novel circumstances created by Brodie and which seeks to limit, in specific ways, liability which might arise as a result of the exercise or failure to exercise particular functions. (It will be necessary to refer below to the potential operation of those provisions in the present case, although none was relied upon on the appeal.)
13. The third strand of the reasoning in Refrigerated Roadways arises from the second: while acknowledging the principle stated in Brodie, the RTA contended that the scope of its duty "did not extend to exercising reasonable care to prevent road users suffering physical injury as a consequence of deliberate criminal action". [23] There followed the extensive reference to Modbury Triangle of which mention has been made above. In a critical passage in the reasoning, it was held at [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."
14. Reference to the type of harm suffered by the plaintiff in Modbury Triangle arising "only through" criminal conduct as a point of distinction, raise three considerations. First, it is not to be located in the passages from Modbury Triangle cited in Refrigerated Roadways. Nor is it clear from the earlier statements of the principle in Smith v Leurs, which involved a denial of liability of parents for harm caused by their son using a shanghai, whether that case was concerned with a deliberate attack or merely negligence: Dixon J referred to "the child inflicting intentional damage on others or causing damage by conduct involving unreasonable risk of injury to others". [24] Dixon J also noted that "shanghais are not instruments of precision". [25]
15. On one view, the reasoning of Gleeson CJ in Modbury Triangle (with which Gaudron and Hayne JJ agreed) was carefully focused on the circumstances of the case, being the specific harm resulting from a criminal assault. In any event, there is nothing in the judgments which suggests that had the plaintiff been injured by negligent driving in an unlit car park, any different result would have followed.
16. Secondly, accepting that the point of distinction is critical to the reasoning in Refrigerated Roadways, that case does not assist the present appellant. In other words, the RTA owed a duty to take reasonable steps to prevent material falling onto the freeway, regardless of its source. That explains what might otherwise be seen as a non-sequitur in [131], treating the deliberate dropping of a block of concrete as in no different category from the accidental fall of an object from a poorly secured load. It also explains the further support said to have been derived from the need to protect motorists against the risk of falling rocks where a roadway passes through a cutting. [26] By contrast, in the present case there was no evidence that there was any other means than the malicious interference of the persons unknown which could have led to the barriers blocking the roadway.
17. The third strand in the reasoning, which is perhaps implicit in the other matters noted above, is that despite the label of a "general Brodie duty" the novel aspect of that case involved the imposition of a duty to act, by exercising a statutory power, in circumstances where a risk had arisen which was known to the authority, or, if unknown to the authority, should have been discovered by taking reasonable steps to inspect where a latent danger might reasonably be suspected. That was not this case; nor was there reason to suppose that the well-established obligation to take reasonable care in the exercise of a power was not limited by the principle considered in Modbury Triangle.
18. For these reasons, which differ in detail only from those of the trial judge, [27] the trial judge was correct to conclude that the law did not impose on the Council a duty to take steps to avoid the creation of a risk by the unlawful acts of third parties.

Breach of duty

1. The trial judge considered, contingently, whether, if the Council did owe a duty of care, it was in breach of that duty. That exercise, which required the application of ss 5B and 5C of the Civil Liability Act was not easily undertaken. That is because of the overlap between the considerations going to the existence of a duty and to its breach. Often it will be necessary to specify with some precision what assumptions are made, contrary to the findings with respect to duty, if such a contingent exercise is to be undertaken.
2. The trial judge stated the basis of his assumption and worked methodically through the paragraphs of s 5B.
3. Although it is neither necessary nor appropriate to address breach as a discrete issue on the appeal, a factual issue at the forefront of the appellant's case should be considered. That was the challenge to the finding by the trial judge that any duty of care which might be owed to the appellant did not require the installation of concrete crash barriers. The appellant challenged that finding on the basis that there was undisputed evidence as to industry practice, which required concrete crash barriers in remote areas. It was contended that the trial judge had ignored that evidence. In fact, the evidence was not ignored, nor was it persuasive.
4. The trial judge commenced his analysis of breach by stating his assumption, namely that the Council owed the plaintiff a duty to take reasonable steps to ensure that items left at the site of the road works were not able to be used by criminals to harm road users. [28] The necessary precaution identified by the appellant was the use of concrete barriers. The stated reason why concrete barriers should be used was that the area in which the works were being undertaken was "remote" and there were "frequent periods when the worksite would be unsupervised, leaving ample opportunity for malefactors to create harm." [29] Further, the road was busy and the barriers were not required to be moved during the course of the work. The trial judge continued: [30] "Fifthly and finally, [the appellant] submitted that the expert evidence of Mr Duckworth that it was industry practice to use concrete barriers in remote locations was uncontradicted."
5. Mr Duckworth did indeed give that evidence: he also said that "[c]oncrete barriers are used if there is a risk that unauthorised persons can tamper with the water filled barriers and move them (including moving them onto the roadway) or steal them." [31]
6. To say that the evidence was "uncontradicted" was incorrect. Mr Baxter, who gave evidence that, as at July 2013, he had been the Council's road construction overseer for 15 years (and had worked with the Council for about 25 years), explained his use of water filled barriers in the following terms: [32] "17 When I came to prepare the Traffic Control Plan I was aware that water filled barriers had become the standard barrier to be used in undertaking works such as the works planned for Woy Woy Road. 18 In my experience it was standard practice to have two end barriers not filled with water and angled away from oncoming traffic. 19 As I understood when I prepared the Traffic Control Plan this practice was to reduce the risk of damage to an oncoming vehicle or motor cycle if it collided with the barrier for any reason and to reduce the risk of injury to an occupant of such a vehicle. It was my belief that there would be less of an impact if a vehicle hit a barrier that had not been filled with water than for example a barrier made of concrete. … 20 When I prepared the Traffic Control Plan I was aware that this was not only the practice of the Council but other authorities involved in carrying out roadwork. … 38 When I prepared the Traffic Control Plan I was aware that it is more efficient to use water filled barriers rather than concrete barriers. It takes longer to transport concrete barriers to a site compared to empty plastic barriers which are then filled on site. Considerably more water filled barriers can be delivered in one load than concrete barriers and there is no need for a crane to be sent to the work site to assist in the loading and unloading of the barriers I specified."
7. Mr Baxter also gave evidence that he had never known of a barrier being deliberately moved to create a traffic hazard.
8. Nor was Mr Duckworth's evidence unchallenged. It is not necessary to refer in detail to the objection taken on the voir dire in relation to his expertise, nor to the cross-examination which followed the admission of the relevant evidence. Dealing with the question of breach on a contingent basis, the judge in effect accepted Mr Baxter's evidence [33] and rejected Mr Duckworth so far as any "industry standard" was concerned. There is no reason to doubt the correctness of that finding.
9. First, the fact that the evidence of Mr Duckworth was admitted as expert evidence did not require that it be given any particular weight. Secondly, the accident occurred in July 2008: Mr Duckworth gave evidence that his "familiarity with the Triton Traffic Barriers" had commenced in February 2008. [34] The time at which the "industry practice" had developed was not specified. Thirdly, it must be the case that the selection of an appropriate form of crash barrier will depend upon a range of factors, none of which (other than a "remote" location) were identified in Mr Duckworth's evidence. Fourthly, Mr Duckworth gave a reason for the supposed practice, namely the difficulty in interfering with concrete barriers. However, he did not give evidence (nor was there any evidence) of such events occurring, except Mr Baxter's evidence that he had never heard of such an event. In short, Mr Duckworth's categorical statement as to industry practice, at a time when he had little familiarity with the industry, and on the basis that it presupposed a risk of which there was no evidence, justified rejection as having no weight.
10. Beyond that conclusion, it is unnecessary to address the questions of breach and causation further. The failure of the appellant with respect to the alleged duty of care requires that the appeal be dismissed. The appellant must pay the respondent's costs in this Court.

Statutory modifications of the general law

1. In concluding, a word of explanation is in order as to the application of the statutory scheme referred to above. Amendments to the Civil Liability Act following the judgment in Brodie modified aspects of the liability of public authorities, including roads authorities. The defence filed on behalf of the Council relied on s 45 of the Civil Liability Act which states: 45 Special non-feasance protection for roads authorities (1) A roads authority is not liable in proceedings for civil liability to which this Part applies for harm arising from a failure of the authority to carry out road work, or to consider carrying out road work, unless at the time of the alleged failure the authority had actual knowledge of the particular risk the materialisation of which resulted in the harm. … (3) In this section: carry out road work means carry out any activity in connection with the construction, erection, installation, maintenance, inspection, repair, removal or replacement of a road work within the meaning of the Roads Act 1993. roads authority has the same meaning as in the Roads Act 1993.
2. There was an issue raised at trial as to whether the crash barriers were a "traffic control facility", a concept defined in s 45E(1) of the Transport Administration Act 1988 (NSW). That was because the definition of "road work" in the Roads Act 1993 (NSW) included "the regulation of traffic on the road … but does not include a traffic control facility". [35] The trial judge accepted that the barriers "were there primarily to protect workers carrying out the road works, and that the deployment of the barriers was therefore part of the 'road work'." [36] However, the trial judge rejected the Council's reliance on s 45 as providing it with immunity, on the basis that the section only applied with respect to "harm arising from a failure of the authority to carry out road work", absent actual knowledge of the particular risk which materialised. He concluded that the provision was not engaged because the Council was in fact carrying out road work. It was thus not the kind of non-feasance to which Brodie had extended the principles of the general law of negligence and to which the section was directed.
3. That finding was not challenged by the Council on appeal: had it been challenged, a nice question would have arisen as to whether the allegation, namely that the Council failed to use concrete barriers, constituted failing to carrying out road work, which includes carrying out any activity in connection with the repair of a road work.

Orders

1. The Court should make the following orders: (1) Dismiss the appeal. (2) Order that the appellant pay the respondent's costs of the appeal.
2. MACFARLAN JA: I agree with the judgment of Basten JA. I add the following observations.

Duty of Care

1. The High Court's decision in Modbury Triangle Shopping Centre v Anzil [2000] HCA 61; 205 CLR 254 confirmed that in general "there is no duty to prevent a third party from harming another" (at [26] per Gleeson CJ). Gleeson CJ referred as follows to circumstances in which that general rule may not apply: "30 There may be circumstances in which, not only is there a foreseeable risk of harm from criminal conduct by a third party, but, in addition, the criminal conduct is attended by such a high degree of foreseeability, and predictability, that it is possible to argue that the case would be taken out of the operation of the general principle and the law may impose a duty to take reasonable steps to prevent it …".
2. In Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Ltd [2009] NSWCA 263; 77 NSWLR 360, which was the principal plank on which the appellant's case rested, there was evidence of circumstances that fitted this description. That evidence revealed that the defendant RTA had knowledge of numerous prior incidents of criminal activity involving people dropping items from overpass bridges on to the road below (see [24]). Such evidence distinguishes Refrigerated Roadways from the present case where there was no comparable evidence.
3. In the present case, Council employees gave evidence that they were not aware of any occasion in the past on which a barrier was moved without authorisation so as to create a hazard to members of the public and the appellant's expert witness did not provide evidence of any such incidents. There was no other basis upon which a finding of foreseeability could be made.
4. The lack of foreseeability to the Council of the occurrence of an incident of the type that occurred on 20 July 2008 is a strong, indeed conclusive, factor against a finding that the Council owed the appellant a relevant duty of care. As the High Court observed in Sydney Water Corporation v Turano [2009] HCA 42; 239 CLR 51; "[r]easonable foreseeability of the class of injury is an essential condition of the existence of a legal obligation to take care for the benefit of another" (at [45]). It confirmed that foreseeability is relevant "at each of the three, related, stages of the analysis of liability in negligence: the existence and scope of a duty of care, breach of the duty, and remoteness of damage" (ibid).
5. Another factor weighing against a finding that a relevant duty existed is the difficulty of defining and confining that duty's limits in relation to the type of conduct in question, namely, malefactors using items innocently left or placed near a road to create road hazards. If the duty for which the appellant contends existed, it is not easy to see why its application would be limited to the plastic barriers in this case and not extend to more portable barriers (such as the "zebra" barriers shown in photographs in evidence) or even to sand bags used by the Council for the purposes of its work and left beside the road overnight. To take a more extreme example, could a motorist who left his or her car beside the road with the keys in the ignition be liable if a wrong-doer moved the car in to the middle of the road, causing a hazard to road-users? In my view, the duty for which the appellant contends 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 (see Sullivan v Moody [2001] HCA 59; 207 CLR 562 at [42]).

Breach of Duty

1. In the present case, the evidence indicated that the Council used the plastic barriers to protect its road-workers from passing traffic. The barriers were designed to be filled with water to assist in conferring this protection. However, as a matter of practice the two barriers nearest the oncoming traffic, which were located well forward of where the road-workers were working, were turned perpendicular to the direction of the road and left empty so as to lessen the impact of any vehicle with them. The consequent lessening of the risk of injury to motorists would have been lost if concrete barriers were used, as the appellant submits should have occurred. Not only would they, as the evidence indicated, have been more expensive and less convenient to use, they would have created a greater risk of injury to any road users who collided with them. The risk of a motorist losing control of his or her car and crashing into the barriers would in my view have been far greater than that of a malefactor moving the barriers on to the road with the intention of creating a traffic hazard. At the least, it can be said that a reasonable person in the Council's position may well have formed the view that the risk of the latter occurring was too remote to warrant abandoning the use of plastic barriers, and therefore their convenience, cost and safety advantages, in a location such as that in the present case.
2. In these circumstances, no breach of duty was established.
3. SIMPSON JA: I agree with Basten JA. I also agree with the additional remarks of Macfarlan JA.

Endnotes

1. [2014] NSWSC 1354 ("Rankin").
2. Tcpt, 12/12/13, p 215(15)-(25).
3. Statement dated 30 October 2013, (Ex Q) at par 9.
4. (1945) 70 CLR 256 at 262.
5. It was not suggested that the exceptions in s 3B applied.
6. See, eg, Hoffmann v Boland [2013] NSWCA 158; [2013] Aust Torts R 82-134 at [2]; and see Sydney Water Corporation v Turano (2009) 239 CLR 51; [2009] HCA 42 at [45], referred to by Macfarlan JA at [58] below.
7. Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48 at [13].
8. (2000) 205 CLR 254; [2000] HCA 61 at [14].
9. See s 5B(1)(a); Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (Wagon Mound (No 1)) [1961] AC 388 at 397.
10. See s 5B(1)(b).
11. Section 5B(1)(c).
12. Palsgraf v Long Island RR 162 NE 99, at 102 (NY 1928) (Cardozo J); Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 487 (Brennan J); Modbury Triangle at [104]-[105] (Hayne J).
13. Modbury Triangle at [29].
14. (1984) 154 CLR 672 at 687.
15. Emphasis added by Gleeson CJ in Modbury Triangle at [24].
16. Modbury Triangle at [111] (citations omitted).
17. Modbury Triangle at [112] (citations omitted).
18. Modbury Triangle at [42].
19. Modbury Triangle at [140]-[147].
20. (2009) 77 NSWLR 360; [2009] NSWCA 263.
21. (2001) 206 CLR 512; [2001] HCA 29 at [150].
22. Refrigerated Roadways at [117] (emphasis added by Campbell JA).
23. Refrigerated Roadways at [120].
24. Smith at [262].
25. Smith at [263].
26. Refrigerated Roadways at [140].
27. Rankin at [91]-[100] and [102].
28. Rankin at [104].
29. Rankin at [114].
30. Rankin at [114].
31. Ex Q at par 16.
32. Statement filed 19 July 2013 - Ex 7.
33. Rankin at [123].
34. Tcpt, 10/12/13, p 72(5).
35. Roads Act, Dictionary, road work.
36. Rankin at [67], [74] and [75].

Amendments 25 August 2015 - [59] replacing "not extent" with "not extend" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 August 2015