Refrigerated Roadways Pty Ltd v Roads and Traffic Authority of NSW

Civil Liability Act 2002 ss 5D, 42, 45 and 46 Civil Procedure Act 2005 ss 100(1) 100(3)(a) and 101 Compensation to Relatives Act 1897 ss 3 and 4 LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 111 Limitation Act 1969 s 14 Roads Act 1993 Uniform Civil Procedure Rules 2005 Sch 5 Transport Administration Act 1988 Workers Compensation Act 1987 s 151Z(1)(d)

Ashrafi Persian Trading Co Pty Ltd t/as Roslyn Gardens Motor Inn v Ashrafinia (2002) Aust Torts Reports 81-636 Brodie v Singleton Shire Council (2001) 206 CLR 512 Edson v Roads and Traffic Authority (2006) 65 NSWLR 453 Falkner v Bourke (1990) 19 NSWLR 574 Hexiva Pty Ltd v Lederer (No 2) [2007] NSWSC 49 Legal & General Insurance Australia Ltd v Eather (1986)6 NSWLR 390 Leichhardt Municipal Council v Montgomery (2007) 81 ALJR 686 Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000)205 CLR 254 CASES CITED: Perl Ltd v Camden London Borough Council [1984] QB 342 Production Spray Painting & Panel Beating Pty Ltd v Newnham (1991) 27 NSWLR 644 Quinn v Leatham [1901] AC 495 Roads and Traffic Authority of NSW v Dederer (2007) 81 ALJR 1773 Royal v Smurthwaite [2007] NSWCA 76 Ruby v Marsh (1975) 132 CLR 642 Smith v Leurs (1945) 70 CLR 256 Smith v Littlewoods Organisation Ltd [1987] AC 241 Sutherland Shire Council v Heyman (1985) 157 CLR 424 Wallersteiner v Moir (No 2) [1975] QB 373 Wyong Shire Council v Shirt (1980) 146 CLR 40

PARTIES: Refrigerated Roadways Pty Limited (Plaintiff) Roads and Traffic Authority of New South Wales (Defendant)

COUNSEL: Mr R S Sheldon (Plaintiff) Mr P L Perry (Defendant)

SOLICITORS: Bartier Perry (Plaintiff) I V Knight, Crown Solicitor (Defendant)

JUDGMENT 1 As he drove a semi-trailer truck in a southerly direction along the Hume Highway at Gilead, near Menangle in the State, Mark Andrew Evans suffered fatal injuries when the truck was struck by a large piece of concrete thrown or dropped by persons from an overhead bridge, known as the Glenlee Bridge. The concrete passed through the windscreen of the vehicle, striking Mr Evans in the chest, and caused it to veer across the highway and up an embankment. Mr Evans died at the scene and left a widow and two children. The incident occurred shortly after midnight in the early hours of Sunday, 23 August 1998.

2 Refrigerated Roadways Pty Limited carried on business as a transport company and at the time employed Mr Evans as a driver. It was in that capacity during the course of employment the incident took place. The Roads and Traffic Authority of New South Wales, as a corporation constituted by the Transport Administration Act 1988, admitted it had care and control of the Glenlee Bridge and the Hume Highway at Menangle below the bridge and that it had a duty to take reasonable care for the safety of road users. However, it denied that the scope of such duty extended to the prevention of the commission of criminal acts by third parties on road users. The act of throwing the concrete object constituted a crime and it was common ground that the four persons responsible had been convicted and sentenced for offences relating to the incident.

3 As Mr Evans' death arose out of or in the course of his employment, Refrigerated Roadways made payments to his widow pursuant to the Workers Compensation Act 1987 in the form of a lump sum death benefit and continuing weekly payments. The present action brought by Refrigerated Roadways as plaintiff against the Roads and Traffic Authority as defendant was based on the proposition that the fatal injury to Mr Evans was caused in circumstances creating a liability in the defendant to pay damages by reason of its negligence. Therefore, pursuant to s 151Z(1)(d) of the Workers Compensation Act, the plaintiff sought indemnity from the defendant in respect of the compensation payments made.

The claim and defences 4 The statement of claim was filed on 28 October 2004 and pleaded seven particulars of negligence against the defendant, the essence of which was that it ought to have erected wire mesh screens on either side of the bridge so as to prevent the propulsion of objects from the bridge onto the highway below thus exposing Mr Evans and other users of the highway to a risk of injury. The particulars were: "(a) Exposing the worker to a risk of injury of which it knew or ought to have known and which could have been avoided by the use of reasonable care on its part. (b) Failing to install a barrier, fence guard or other appropriate structure to prevent or inhibit things falling or being thrown to the highway below.

(c) Failing to properly inspect the area and detect the dangers presented by an unfenced overhead bridge.

(d) Constructing or otherwise allowing the bridge to be constructed without barriers, fencing or guard rails.

(e) Failing to take any or any adequate steps to deter people from throwing things off the bridge.

(f) Failing to take any or any adequate steps to ensure the safety of motorists travelling on the highway below the bridge. (g) Failing to have in place any system for detecting persons throwing things from the bridge." 5 The widow and the dependant children did not take any action for damages against the Roads and Traffic Authority under ss 3 and 4 of the Compensation to Relatives Act 1897 but it was common ground that if they had successfully done so then the notional liability of the defendant would have been approximately $710,000. Up to the date of trial, workers compensation benefits had been paid to Mr Evans' family in the sum of $321,889.34, which included a lump sum death benefit of $237,150 paid on 3 December 1998. The plaintiff as the employer sought to recoup those payments plus interest on the death benefit of $216,843.34 (10 per cent per annum from 3 December 1998 to 31 December 2006) and continuing to the date of judgment at the rate of $64.97 per day - the total is to the order of $570,000. The mathematics of the claim was not disputed by the defendant and the only issue was the rate of interest which the defendant said should be 6 per cent per annum as the average Reserve Bank bond rate over the period, rather than the 10 per cent average court rate used by the plaintiff, which resulted in a total amount of about $480,000. Thus, the notional damages were agreed in a sum exceeding the compensation payments, whether interest be 6 per cent or 10 per cent, so that if the plaintiff be successful on liability then it would be entitled to a verdict for the full amount of compensation paid plus interest at a rate to be determined.

6 A claim for costs was made by the plaintiff and, in the ordinary course, it was agreed that costs should follow the event. However, it was acknowledged that regardless of the outcome some special order may be appropriate to recognise adjournments and other matters occurring during the proceedings. Costs will therefore be reserved for the parties to be heard further.

7 The agreement between the parties, other than as to interest, on the quantum of any indemnity under s 151Z(1)(d) of the Workers Compensation Act avoided the need in these proceedings for any evidence from the deceased's widow and family. It should be acknowledged that that course was most appropriate in the circumstances and properly attended to the sensitivities involved.

8 The defendant denied liability on a number of bases, namely - . There was no duty of care owed to protect the deceased from the criminal actions of the person or persons who caused a rock to fall from the bridge.

. If there was a period during which the defendant had actual knowledge of the relevant particular risk, but which was denied, it did not fail to carry out roadwork or fail to consider carrying out roadwork; to the extent it constructed barriers or screens on bridges over the Hume Highway, it denied that indicated a duty to do so by reason of s 46 of the Civil Liability Act 2002

. The functions to be exercised by the defendant were limited by the financial and other resources available to it for the purpose of exercising those functions within the meaning of s 42 of the Civil Liability Act.

. The defendant did not have knowledge of the particular risk the materialisation of which led to the death of Mr Evans pursuant to s 45 of the Civil Liability Act

. The defendant denied it was negligent or that the death of Mr Evans resulted from any of the alleged particulars of negligence; rather it resulted from the culpable action of the person or persons standing on the bridge in launching the concrete onto the highway below. 9 The defendant pleaded also s 14 of the Limitation Act 1969 to bar recovery by the plaintiff of any sum paid by the plaintiff prior to 28 October 1998. The plaintiff accepted this defence, correctly I think, and the calculation of its monetary claim related only to those payments made by it after that date.

10 Central to the defendant's case, certainly by reference to s 42 of the Civil Liability Act, was the following pleaded particular: "The highway on which Mr Evans was travelling, the Hume Highway, being part of the National Highway, was funded by the Commonwealth Government. Financial resources provided to the defendant were insufficient to achieve the erection of barriers or screens on each of many bridges over the highway by the time of Mr Evans' death. It is not conceded, indeed it is denied, that the measures specified [particulars of negligence] in the Statement of Claim, or any of them, would have prevented the actions of the person [who threw the concrete as alleged] in the Statement of Claim. The defendant had allocated such resources as were available to it for the maintenance of the highway in accordance with its own determination of priorities. The defendant, at the time of its alleged breach of duty, had the broad range of duties of a roads authority and had attended to those duties. The defendant had complied with the general procedures and applicable standards for the exercise of its functions as a roads authority." Issues for determination 11 The resultant key issue in the case is whether the death of Mr Evans was caused by the negligence of the defendant in failing to erect barriers or screens on the Glenlee Bridge, or failing to do so in a timely way, as would have entitled him (if death had not ensued) as the injured party to maintain an action to recover damages in respect thereof; and that is so even though the death was caused under such circumstances as amount in law, as is the case here, to a serious indictable offence: s 3 (1) of the Compensation to Relatives Act.

12 If so, the defendant was liable to an action for damages for the benefit of Mr Evans' widow and children: s 4(1) of the Compensation to Relatives Act. The plaintiff, as Mr Evans' employer, was liable to pay compensation to his widow and children under the Workers Compensation Act and under s 151Z(1)(d) thereof would be entitled to be indemnified by the defendant as the person liable to pay those damages (in an amount limited to the amount of those damages in a notional sense).

13 If not, then the present action against the defendant for an indemnity must fail.

14 As the case was argued, a critical issue was whether the scope of the admitted duty of care owed by the defendant to the deceased as a road user to take reasonable care for his safety extended to the prevention of criminal acts by third parties. It was submitted for the defendant that it did not; the decisions in Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 and Ashrafi Persian Trading Co Pty Ltd t/as Roslyn Gardens Motor Inn v Ashrafinia (2002) Aust Torts Reports 81-636 were relied upon. Supplementary issues concerned whether the defendant had indeed taken all relevant reasonable care to nullify any negligence and whether the defences available under the Civil Liability Act as to causation (s 5D) and the liability of a public authority (ss 42, 45 and 46) had been established - the defendant said those matters were in its favour.

15 Against that, the plaintiff's case was put in two ways. First, at the time in 1977 when the Glenlee Bridge was constructed the then Department of Main Roads, the defendant's predecessor, was aware from published experiences in the United States of America that there was a risk of objects being launched from bridges passing over high-speed roads so that it ought to have screened or fenced the bridge during the construction phase - it did not and the readily foreseeable risk eventuated. Second, and more immediately in terms of foreseeability, a series of incidents occurred in the early 1990s in New South Wales and Victoria in which objects were launched from overpasses onto roads below causing injury and damage so as to demonstrate a growing or emerging trend for this extremely dangerous activity to be undertaken - the defendant still did not react. It was not until 1994 following the death of a motorist in Victoria on a high-speed thoroughfare from an object dropped from an overbridge that the defendant started to address the risk and, as the plaintiff's counsel put, "the fact that they didn't start reacting until the mid-1990s is really down to them and not any want of resources to be thrown at the problem."

16 Counsel accepted the principles emerging from Modbury Triangle, as applied in Ashrafi, but distinguished those cases on the very specific facts in the present case. Here, unlike in Modbury Triangle, the defendant did not have to control the criminal conduct of a third party but rather had to take a reasonable step by fencing or screening the bridge to avoid what might arise to a person lawfully using the freeway beneath. In other words, as counsel put, the criminal assault dealt with in Modbury Triangle bore no particular relationship with its location whereas the only place a rock could be launched onto the freeway here was from a bridge passing over the freeway as shown by the emerging trend.

Factual background 17 Construction of the Glenlee Bridge and nearby bridges over the F5: In 1976-77, the Department of Main Roads constructed a section of freeway, known as the F5, along the route of the Hume Highway southwest of Sydney in the general area of the City of Campbelltown. Glenlee Road crossed the highway from Glen Alpine and other Campbelltown suburbs leading to a private residence, a horse-riding farm, and an entrance to the National Equestrian Sports Centre. It was in a remote and rural area. To enable free passage along the F5, a bridge over the freeway was built by November 1977 to carry Glenlee Road - it was a vehicular bridge with no provision for pedestrian footpaths; the sides comprised a waist-high metal crash rail on a concrete base with no fencing or screening attached.

18 Other similar bridges in the area over the F5 were at St Andrews Road, Campbelltown Road, Raby Road and Menangle Road. Again, they were constructed without any side fences or screens.

19 The American experience: John Jamieson, a consulting forensic engineer, visited the Glenlee Bridge site on 16 August 2005 at the request of the plaintiff's solicitor. Significantly, Mr Jamieson said the F5 was built according to standards laid down by the National Association of Australian State Road Authorities with parameters originally derived from American parameters. Those standards from America, specifically the Association of Highway and Traffic Engineers, were applied since the first freeway in New South Wales from Berowra to the Hawkesbury River (the F3) was constructed in 1968-69. Thus, the connection with American standards and experience as to freeways was established.

20 A publication dated 1 December 1968 from the American Association of State Highway Officials entitled "A Guide for Protective Screening of Overpass Structures" prepared by its Committee for Planning and Design Policies was discovered in the defendant's library and stamped with the library seal dated September 1970. The guide stated an intention "to assist the Engineer in determining the need for a protective screen on overpass structures with suggested screening methods." The publication introduced the problem in this way: "With the advent of extensive freeway development in the United States the problem of objects being thrown or dropped from overpass walks onto vehicles traveling below has become a serious one in some areas.

For instance, in the Chicago area in the two-year period 1964-1965 there were over 1,200 reported incidents of objects being dropped or thrown from overpasses onto vehicles below. These findings were supported in a more recent study covering the period from July 1968 to March 1969 during which 357 incidents were reported. It is logical to assume in addition that there were many more incidents not reported. The seriousness of the consequences that can result from objects being thrown from bridges is brought out by scattered and continuous country-wide reports of fatalities and major injuries caused by this type [of] vandalism. Reports of large objects falling through windshields and fatally injuring occupants of vehicles have been received from various States."

21 In acknowledging that the problem of prevention was complicated by several factors, such as conduct by wilfully malicious adults or just mischievous children, the Association guide noted that "it is also a known fact that any type of physical preventive measure acts as a motivating challenge to some individuals" and concluded: "It is not now possible to establish useful location warrants for when and where barriers should be installed to discourage the throwing of objects from structures. The general need for economy in design and desire to preserve the clear lines of a structure unencumbered by screens must be carefully balanced against the absolute requirement that the highway traveler and overpass pedestrian be provided maximum safety." 22 Various types of barriers were illustrated by the guide, including vertical or curved chain link fence, rectangular or circular enclosure and complete or partial wire mesh enclosure. Although those various types of screens were thought to definitely reduce the number of incidents of objects being dropped from overpasses and striking vehicles below, it was accepted that there could be no absolute warrant for installation of screens or barrier protection and each location had to be analysed individually. In some cases, however, erection of a screen could be postponed until a need be shown but, as the report said, "where there is any doubt as to their need, screens should be erected initially." For instance, and perhaps relevant for present purposes, a location for the initial construction of a screen was "on overpasses with walks where experience on nearby structures indicates a need for screens"; it was then added: "Screens should also be installed on existing structures where there have been incidents of objects being dropped from the overpass and where it seems evident that increased surveillance, warning signs or apprehension of a few individuals involved will not effectively alleviate the problem." 23 Lack of consideration of the American experience by the defendant: There was no evidence that the defendant took into account in its programme for constructing overbridges, certainly not the Glenlee Bridge or other bridges on the F5, the views and guides of the American Association of State Highway Officials. Indeed, to the contrary, Bruce Fishburn, who had been with the defendant from 1964 to 1998 as an engineer in various capacities and provided specialist services on major freeway projects such as the F5 until he became an independent road-engineering consultant in 1998, was unaware of the American publication. Stephen Dunlop, who was the defendant's Sydney Asset Manager from the mid-1990s with responsibility for examining hazard reduction from overpass structures, said that nobody prior to him had that task and he did not see the American publication until November 1995 (when it was nearly 30 years old) - even so, he thought the Australian experience would be different and did not further enquire as to the American experience. And Robert White, Professor in Criminology from the School of Sociology and Social Work at the University of Tasmania, was unaware of the American publication - he thought it of possible relevance but he did not know of anything else along those lines.

24 This omission by the defendant is not of factual insignificance in the context in which the present matter is to be seen nor is the absence of anyone within the defendant's organisation before Mr Dunlop in 1995 to have the duty of assessing hazards from overpass structures.

25 Given that the American report meant the risk of objects being thrown from overbridges could not be ignored, Mr Jamieson's evidence was that the addition of an appropriate screen on the Glenlee Bridge when constructed in 1977 would have been less complicated and involved than "retro-fitting" a screen in 1998; he said a marginal amount of extra time would have been involved in installing a fence or screen during the initial construction of the bridge and the extra cost would have been "a very marginal amount, an insignificant amount."

26 Emerging risks from incidents: A chronology, prepared by the defendant, of incidents from objects being thrown or dropped from overbridges in the defendant's Sydney Region of operations, which encompassed the relevant section of the F5, showed -

Date Location and Incident 1992 M5 Motorway - Incidents from bridges after opening February 1993 Hume Highway - Advice with police re problems around Douglas Park, Bargo, and Campbelltown March 1994 James Ruse Drive - Kissing Point Rd - rocks - vehicle damaged September 1994 M5 - Beech Rd, Prestons - rocks - vehicle damaged December 1994 Henry Lawson Drive - Alfords Point Overpass - rocks - vehicle damage January 1995 M5 Campbelltown Rd - rock caused vehicle to overturn. RTA and Minister then advising pedestrian bridges not being considered April 1995 Taren Point Rd - Woodlands Rd - concrete - driver injured April 1995 M4 - Merrylands - 10 kg block asphalt - driver injured April 1995 F3 - Mt Kuring-gai - rocks - windscreen broken May 1995 M4 - Archibold St - occurred in March 1994 - vehicles damaged, reported May 1995 August 1995 M4 - Pomeroy St - rocks - window broken October 1995 M4 - Beresford Rd overpass - pipe suspended from bridge January 1996 F5 - Brick - Raby Rd, Campbelltown - through windscreen January 1996 Hume Highway - Raby Rd - windscreen broken February 1996 M5 - River Rd - rock - windscreen broken February 1996 Warringah Rd - Pedestrian overbridge at Forest Way - vehicles damaged March 1996 Parramatta River - Silverwater Rd, Ryde and Gladesville Bridges - concern for ferries April 1996 Menai Rd - rocks from Old Illawarra Rd - Motorists injured, windscreen broken June 1996 M4 - Ettalong Rd, Greystanes - brick - driver injured September 1996 Parramatta Rd, Sydney University pedestrian bridge - rocks - windscreen broken February 1997 M4 - Melton St - rocks - vehicle damage May 1997 M5 - Kurrajong Rd, Casula - rocks - vehicle damage December 1997 F6 - McKell Ave, Waterfall - 5 kg concrete - driver injured April 1998 M4 - Pomeroy St, Homebush - Pedestrian overbridge - rocks - windscreen broken

27 Of these twenty-four incidents, eight occurred in the Campbelltown area. In addition, just before midnight on 28 March 1992 a truck travelling south along the F5 between Campbelltown and Liverpool was hit with a large plastic bag filled with water and eggs dropped from the Campbelltown Road overbridge - some damage was caused to the truck and the driver's vision through the windscreen was blurred; when the driver, a Mr Ronald Clayton, stopped the truck he saw three cars which had also been struck by objects thrown from the overbridge. That incident was reported by Mr Clayton to the defendant in a letter of 2 April 1992 which relevantly said: "It is extremely disappointing at a time when the NSW RTA is blitzing nearly every vehicle that moves on the State's Roads that they cannot protect motorists from harm and damage through the use of their structures for people to launch missiles. Fortunately in Victoria the RTA saw the error of these structures and erected high wire fences on all Freeway Overhead bridges. I only hope something can be done about this sort of thing before someone is killed." 28 The defendant responded to Mr Clayton, through Mr C Ford its Development and Road Safety Manager, in an undated letter which said, after apologising for the delayed reply and expressing concern: "No other cases have been reported to the Authority of any person or persons throwing objects from the bridge to which you refer or other bridges on the Freeway.

The provision of preventative fencing on bridges along the road could not be justified at this time. However, the Authority will continue to monitor the situation and liaise with the Police Department." 29 Although omitted for some reason by the defendant from the above chronology, but later discovered, a letter dated 24 September 1993 from a Mr James Saville to the Hon John Fahey, then Premier and Member for Southern Highlands, reported an incident occurring the evening before at the overpass (the Glenlee Bridge) on the F5 near Glen Alpine several kilometres south of Campbelltown. Mr Saville reported large rocks dropped onto the freeway from the overpass causing damage to three cars, including smashed windscreens, panel damage and deflated tyres. It was added by Mr Saville that police officers from Campbelltown who attended the scene indicated they "were familiar with this form of madness…it usually happened closer to Campbelltown." Also, he advised that the tow truck driver called to the scene had a log dropped onto his truck further down the freeway and the insurance claims clerk commented about a similar occurrence on the Central Coast of the State. Mr Saville urged that thought be given as "to how this threat to the safety of motorists can be addressed." There was no recorded response to this advice.

30 On 24 September 1993, Mr Fahey as Premier wrote to the defendant about a complaint received from a Mr Kenneth Milne concerning a recent incident at night on the Hume Highway just past the Campbelltown exit when bricks were thrown onto the roadway from an overhead bridge causing major damage to his car and another vehicle travelling behind him. The Premier suggested the erection of safety mesh to ensure the safety of travellers and sought the defendant's advice. In a response dated 26 October 1993 to the Premier from Mr R F Morris, then Director of the defendant's Sydney Region, concern about such crimes was expressed and Campbelltown police were said to be aware of such incidents. Somewhat surprisingly, perhaps, and particularly in view of the American experience, the letter from Mr Morris concluded: "Unfortunately there is little the Authority can do. The enclosure of bridges with wire mesh is only practicable in the case of pedestrian bridges. On the M5 only the pedestrian bridge at Mackenzie Street has been treated in this way.

On vehicular bridges the height of fencing required may impose loadings on the bridges which they have not been designed to withstand. Given the large number of overhead bridges on the road network any such treatment program would be hugely expensive, and no doubt in the view of many aesthetically undesirable, with no guarantee that it would ultimately deter those determined to carry out these senseless activities.

The problem is essentially a matter for the Police and you may be assured that the Authority will continue to liaise with the Police with a view to providing any assistance it can." 31 After a few months from the last recorded incident in the chronology in April 1998, a spate of events of rock-throwing occurred on the F5 when rocks were thrown from three overbridges, being those at St Andrews, Glenlee and Menangle on the evening of Sunday, 9 August 1998. Interestingly, the bridge at St Andrews had been equipped with a fence screen in 1997 but on 10 August 1998 a brick was lobbed over the top and struck the bonnet of a car containing a woman and three children; the three other cases involved the dropping of sandstone rocks onto the F5 which did not strike vehicles but damaged them when hit as they lay on the roadway.

32 Defendant's first response to the apparent hazard: It was clear from the evidence, as shown by Mr Morris' letter of 26 October 1993 to the Premier and Mr Ford's earlier letter to Mr Clayton, that the defendant's policy up to that time was not to enclose bridges with fencing, at least other than pedestrian bridges. However, in mid-1995 the defendant was doing some construction of roads to join with the F5 freeway and in a discussion between Mr Dunlop, then a project engineer, and Mr P R Sansom, the defendant's M5 Project Manager, the issue of objects being dropped from bridges over the F5 (also known as the M5) arose; Mr Sansom, in a note to Mr Dunlop dated 14 June 1995, said it was "apparent that further publicity associated with incidents, including a Victorian fatality, generated further spates of incidents." Mr Sansom then observed: "It is evident that incidents are likely to occur when: . an overbridge is in proximity to a school or shopping centre; . the overbridge is relatively isolated with little passing traffic; and . material that could be used as a projectile is in close proximity to the overbridge." 33 Shortly thereafter, Mr Dunlop was appointed as the defendant's Sydney Asset Manager and part of his responsibility was to embrace hazard reduction concerning objects dropped from overbridges. A working party, including Mr Dunlop, was formed with the defendant's organisation to identify the risks and to develop strategies to meet them. Curiously, the study was limited in its scope to pedestrian bridges and road bridges with pedestrian traffic - the Glenlee Bridge was a road bridge with no separate facility for pedestrian traffic, but, of course, pedestrians could access it by walking on the roadway. By 10 August 1995, Mr Dunlop had identified four such pedestrian bridges over the F3 and M4 which potentially had a greater chance of being used for throwing objects due to their patterns. The other significant point is that at that early stage in the response process the bridges being considered were over State roads but not, such as the presently relevant section of the F5, national roads which attracted funding from the Commonwealth government. The defendant, by Mr Dunlop, participated with local government and State Rail Authority representatives in a Police Steering Committee to examine the problem and it was agreed that the defendant's approach of analysing sites for the potential hazard and dealing with each site individually according to various risk factors was the most effective method of treatment. On 14 November 1995, Mr Dunlop produced a programme for hazard reduction from overpass structures but limited to the bridges over State roads, the F3 and M4 which were for use solely by pedestrians or had a footpath in conjunction with a roadway.

34 In the result, in 1996/97 fourteen bridges were screened on the M4, in March 1997 when the M2 opened all but two bridges, being high traffic low risk intersections, were screened and in 1997/98 two bridges over the F3 were screened. Bridges over the F5, including the Glenlee Bridge, remained unscreened.

35 Defendant's attention to overbridge hazards on the F5: After the January 1996 incident in which children threw bricks from the bridge at Raby Road in the Campbelltown area through the windscreen of a car, Mr Dunlop received from the defendant's then Director of the Sydney Region, Mr David Stuart-Watt, a draft briefing note for the Minister for Roads with a request that he complete the document and add any comments. Mr Dunlop prepared a project brief for overbridge protection fencing dated 16 January 1996 in which the problem was identified as "missiles being dropped/thrown from overbridges onto vehicles passing beneath" and the requirement for the "design and erection of physical deterrents, probably vertical fencing along sides of overbridges" for "all bridges on F3, M4 and F5 without current protection fencing." In a briefing note to the Minister dated 24 January 1996, the defendant indicated that the outcome of the study by its investigation team was the identification of 43 bridges on the M4, F3 and F5 (eight bridges) as having the highest priority for treatment by screening; at a cost of $50,000 per bridge, the total cost was estimated at $2.2 million and as both the F3 and F5 were national roads it was proposed to seek Commonwealth funding of $1.2 million in 1996/97 to cover the works.

36 Significantly, the briefing note said that "given the widespread problem of projectiles thrown onto motorways…treating the whole length of a motorway…is seen as the only comprehensive approach. The bridge you don't treat is the one used by the criminals." After noting that "the general consensus is that the highest risk occurs with bridges over high-speed, restricted access roads" (which, one may interpose, described precisely the situation of the Glenlee Bridge), the briefing note summarised that "the need exists to reduce the risk on the outer urban freeways (again descriptive of the F5) and Motorways by the erection of fencing on all overbridges…to be completed in 1996/97." The policy of the defendant had thus changed from what it was pre-1995 of no action in this area to one of the screening of all overbridges.

37 The Minister by letter dated 30 April 1996 to his federal counterpart, the Minister for Transport and Regional Development, stated the proposal "to reduce the hazard to vehicles from objects dropped from overbridges…to erect fencing along the outer side of all bridges over high-speed urban areas", including the F5, and funding was sought to do so under the National Highways Program during 1996/97. The federal Minister responded by letter dated 19 June 1996 by agreeing there was a relevantly serious safety risk and that fencing was the best preventative measure; he said he would "be happy to consider such safety works in the context of developing the 1996/97 National Highways program. Of course, it is to be seen that the Commonwealth funding was not to be available for the whole cost of the proposed measures of $2.2 million but limited to $1.1 million for the F3 and F5 as national roads with the State to fund $1.0 million for the work on the M4 as a State road.

38 As it happened, however, the defendant received the costing and in a progress document dated 21 March 1997 reported the cost of screening each bridge had increased from $50,000 to $70,000. It followed, as the document recorded, that only 15 of the 21 bridges over the F3 and F5 could be screened during 1997/98 and funding would be sought from federal resources to screen the remaining six bridges in 1998/99 - it was said that those bridges, which included the Glenlee Bridge, had a low priority for treatment.

39 The defendant, through Mr Dunlop to Mr Rod Carter, its Network and Road Safety Manager, reviewed the screening of bridges over urban roads and in a document of 23 July 1998 stated that the cost of screening had increased to $75,000 per bridge. The then current position was that $670,000 had been allocated in 1998/99 to cover nine bridges on national roads but no funding had been provided for the remaining eight bridges. Mr Dunlop made the following recommendation: "The problem of projectiles being thrown from bridges onto motorists was clearly demonstrated by incidents in 1995 and 1996. It is expected that the problem will not go away and the RTA should protect motorists to a reasonable level. Given the continuing risk and the media attention to these issues at the time it is recommended that the program of retro fitting screens to the higher risk bridges already identified on high-speed roads should continue.

The recommended program will be to treat approximately 13 bridges per annum, i.e. $1.0 M, on the State Network and to request similar funding from the Federal Government. This program would, commencing 1998/99, complete the State outer freeways in 1998/99, National Highway in 2000/01 and remainder of the State Network for bridges (80 kmh and over) in 2002/03. (Funding proposal attached). …" 40 The attachment to Mr Dunlop's report proposed that the Glenlee Bridge, together with other nearby bridges over the F5 at St Andrews, Menangle Road and Campbelltown Road, be screened during the 1999/2000 programme. Interestingly, Mr Dunlop in making his recommendation was unaware of the incidents on the F5 in March 1992 on the Campbelltown Road overpass and in September 1993 when rocks thrown from the Glenlee Bridge damaged three cars.

41 However, the events which occurred on 9 and 10 August 1998 in the Campbelltown area when rocks were dropped from three bridges at St Andrews, Menangle Road and the Glenlee Bridge accelerated the issue. Mr Dunlop noted that police, when called to the sites, had commented about "regular trouble here" but, contrary to arrangements then in place, had failed to keep the defendant informed of incidents when they occurred. Mr Dunlop recorded the issues seen by him were to encase the Glenlee Bridge as soon as possible and to question why this was not responded to quicker. On 11 August 1998, Mr Dunlop emailed Mr Stuart-Watt and Mr Carter with prepared action as including: "Fence the bridges down there immediately. They were to have been done last year but Feds reduced funding. I have advised RNI (Road Network Infrastructure) today that we will not wait until funding approved, currently under review, but we will do what is needed now and then find money from wherever." 42 Apparently, RNI was the defendant's funding source and was responsible for allocating and directing funding. Mr Dunlop said in evidence as to this in light of the incidents on 9 and 10 August 1998: "Q. And how did you propose to proceed in the absence of funding, Mr Dunlop? A. …the cost was, you know, it was looking what, half a million…we were after a couple of hundred. We would have found it from other sources. We would have changed our funding distribution at that time, if we had to.

Q. Why would you change the funding distribution on 11 August 1998 from the regime that had been in place prior to that time? A. There was obviously something happening down at that location which was unusual, and we needed to respond to it." 43 In the result, the process of obtaining screens for the Glenlee and Menangle Bridges was indeed accelerated. Mr Dunlop's recommendation was approved by the defendant and design work for the screens commenced on 17 August 1998, installation commenced on 14 September 1998 and screening was completed on the Glenlee Bridge by 17 October 1998.

44 Prioritising the screening of bridges: On resolving in 1996 to screen all bridges over freeways and motorways, the defendant appointed Eka Onggo, a roads engineer, as Senior Project Manager to lead a team relating to the screening of overbridges. As Mr Onggo explained, his task was to do "a priority listing and weighting of which bridge would be screened first and which bridge can be screened later…you cannot build the whole lot in one go…a priority needs to be done"; Mr Onggo agreed that funding requirements also meant the need to provide a list of priorities. He then prepared a risk assessment of criteria by which a priority would be determined; the various factors, which were given a weighting, were - . pedestrian access . type of road under . near school . near hotel or a club . near youth attraction . other pedestrian generators . lighting . exposure to buildings . exposure to traffic . history of incidents/graffiti . any loose objects 45 The highest weightings were for pedestrian access, type of road under and history of incidents/graffiti. Mr Onggo said that the identification of the criteria to use in the priority process followed consultations with police, psychologists, other bridge operators, a literature search and analysis of incident reports; the preparation of this document, in its revised form, was in December 1996.

46 The methodology adopted by Mr Onggo to rate each site according to the specified criteria involved consultations with senior managers of the defendant. He then, with other engineers and a student, visited the various bridge sites and rated them. Notwithstanding the nature of the Glenlee Bridge and the earlier events of rocks dropped from it which were apparently not known to Mr Onggo, the risk assessment summary for it recorded no pedestrian access and no history of prior incidents, The resultant evaluation matrix gave the Glenlee Bridge a priority rating of 42 out of 84 bridges for screening as at the last modification on 25 May 1998. It may be interpolated, on my calculations, that if the Glenlee Bridge (as suggested by the plaintiff) had been given appropriate scores for the two criteria rather than zero then its priority rating would have been raised to at least position 10 on the evaluation matrix. It would seem, perhaps curiously in light of Mr Dunlop's earlier view that the highest risk occurred with bridges over high-speed, restricted access roads on the outer urban freeways - very descriptive of the Glenlee Bridge - that those bridges with pedestrian access near schools, hotels or clubs, other pedestrian generators and with exposure to buildings rated a higher priority for screening on Mr Onggo's evaluation matrix.

47 For instance, Mr Onggo was unaware of the American experience stated in the publication of the American Association of State Highway Officials which stated that "many of the incidents take place in outer suburban and rural areas, where regular police checks are unlikely or impractical." Even so, although agreeing it was a view he would have been influenced by in his task, Mr Onggo did not agree with the proposition. As he said: "…the screening is not foolproof…people can still throw things out of there. It's just to stop people who are doing it at the spur of the moment…the unplanned…where there is a lot more pedestrian, to some extent that's more likelihood, especially when it's close to a pub or a school…. It's very random, you don't know, you can't predict where this is going to happen…You'd need a lot of effort to go there…the pre-screening isn't designed for that, it's designed for people who are at the spur of the moment doing it, like, if there are children and think like that…." 48 Another significant aspect of Mr Onggo's performance of the task in ascribing a priority rating for the screening of bridges was his, and hence the defendant's, lack of appreciation of the extent of the problem. As Mr Fishburn conceded in evidence, the defendant and the police had somewhat different methods for locating incidents of rock-throwing from overbridges and many incidents were simply not reported by police to the defendant who, in any event, had no formal mechanism in place for recording such incidents or correlating its own material. It was plain that there was a known shortage of data in the hands of the defendant about what was happening in local areas. Indeed, Mr Fishburn accepted as a possibility that a more rigorous way of identifying potential risk factors would have been to undertake an interaction between the defendant and police at the regular traffic committee meetings - but that did not occur.

49 Federal funding of national highways including the F5: Vivian Manwaring, an engineer with the defendant since 1966, was its Senior Capital Works Programmer. From August 1996 in the Road Network Infrastructure Directorate of the defendant, he had the role of budgetary concern for safety and urgent minor works into which fell responsibility for the programme of screening overbridges on the national highways which, of course, included the Glenlee Bridge on the F5. However, he had no role in policy development for bridge screening.

50 It emerged from the evidence that the defendant allocated its resources in relation to national highways from funds made available from the National Highways Program. In addition, of course, the defendant had responsibility for building and maintaining the State road system. For the year 1997/98, the defendant had available federal funding for safety and urgent minor works of $25.99 million on national highways. On 4 July 1997 Mr Manwaring called for bids for such works and, in doing so, advised that in the year 1996/97 reduced expenditure of $24.1 million was achieved against the federal allocation of $27.36 million. Even so, Mr Manwaring said there would be a significant carryover of works to 1997/98. It seemed that the bids submitted amounted to $41.0 million in terms of the $25.99 million budget of which $370,000 on 16 October 1997 was allocated for bridge screening on the Hume Highway/F5 but where $236,000 of that had already been committed for overbridge screening at St Andrews and Raby Road - the balance available for the year 1997/98 was thus $134,000.

51 Although the allocation of federal funds was made and budgets set, it was shown from various pieces of evidence that if a need arose for certain work to be done the budgetary constraints were no impediment. So much was clear from what Mr Onggo said and who added, in any event, that the defendant did not always spend the total funds allocated. This position of the availability of funds was affirmed by Mr Dunlop's evidence, as stated earlier, that following the rock-throwing incidents on 9 and 10 August 1998 at the overbridges at St Andrews, Glenlee Bridge and Menangle Road immediate action was taken to screen from funds from "wherever".

52 With the under-expenditure in 1996/97, Mr Manwaring on 12 May 1997 directed that certain projects proceed so as to "expend as much funds as possible this financial year" - the projects, apart from some screening of bridges on the F3 and Hume Highway for $100,000, specified $1.22 million for noise walls on the Hume Highway and the Cumberland Highway. Mr Manwaring agreed in terms of the safety of road users that noise abatement and the screening of bridges were "on quite different planes."

53 Shortly after the death of Mr Evans on 23 August 1998, the NSW Minister for Transport and Minister for Roads, the Hon Carl Scully MP, announced on 3 September 1998 that the State government would spend $3.2 million to accelerate its programme of screening bridges over high-speed motorways in the greater Sydney metropolitan area; the fatal injury to Mr Evans was acknowledged as the need to do so. As the Minister said: "An additional $1 million in State funds will be provided to allow for the acceleration of the existing $2.2 million program.

This will see 16 overbridges screened in 1998/99 and a further 16 in 1999/2000.

All overbridges on the F5 Freeway/Hume Highway to the Nepean River at Menangle and the M4 Motorway will be screened by July 1999. The RTA expects to install a screen on the Glenlee overbridge in mid October. Design work is already well underway.

All overbridges on the F3 and F6 Freeways will be fully screened during 1999/2000." 54 After indicating co-operation between the defendant and police to finalise the priorities to ensure higher risk bridges were screened first, the Minister said "the Government will continue to do all it can to ensure the safety of motorists on our high-speed motorway network." Clearly then, once the relevant safety risk was accepted, and even though in the ordinary course funds would have been from the Commonwealth government, State government funding for screens was very quickly made available.

55 The issue of funding, as the case was argued, went very much to whether the bridge screening should have been commenced earlier than it was and how and in what amount provision was made for the screening. The State Minister in April 1996 asked his Commonwealth counterpart for $1.1 million in federal funding for 1996/97 and favourable consideration was the reply. However, as Mr Manwaring conceded, the forthcoming federal budget gave no specific item for screening apparently because the defendant did not include it in its submission. Rather, as Mr Manwaring explained, it was included in the proposal for 1997/98 even though the 1996/97 budget was underspent by the defendant by $3.26 million. That budget was, as stated earlier, approved for safety and urgent minor works funding (which included bridge screening) of $25.99 million but subject to bids from the defendant's regions of $41.0 million; Mr Manwaring had to prune it down to the $25.99 million even though he had no role in the screening of bridges and there was no evidence anyone in the defendant's organisation had the task of co-ordination of that work. Further, in light of the need to do so as it emerged at this time, there was no evidence why no specific funding for screening was not sought or any application to use the $3.26 million underexpenditure in the 1996/97 budget. This evidence emerged from Mr Manwaring: "Q. But isn't it the case that your evidence is that the 25.99 million was merely picked up as being the figure indicated by the Federal Government in the prior year as being likely to be allocated? A That's what happened in this case, yes. … Q. So that whatever changes have occurred between the allocation or the indication of that funding of 25.99 million and the submission of the proposal which might have increased the necessity for funding, would not have been put forward at all, would they? A. In this case it wouldn't, no. … Q. But it would not have been difficult in preparing the 1997/98 forward strategy report for someone somewhere within the RTA to say, "Well, hold on, this issue of screening bridges has become important and we should submit a proposal for $27 million or $27.5 million so we can get the screening underway." It wouldn't have been difficult to do that, would it? A. It could've been done. … Q. You see, one of the things that is a little difficult that I find to grasp about the funding arrangements is that if the Federal Government has said you can have $27 million-odd in 96/97 and you only spend $24 million, then it would seem they've either got or have made provision to have the $3 million difference and that it would be a simple matter to say, well, because of the timing, can we spend that $3 million next year, these are the projects? A. I'm not aware that was done.

Q. But it could have been? A. It could've been. … Q. It follows, doesn't it, that the amount approved for safety and urgent minor works for the year 97/98 was precisely the amount sought? A. As we discussed earlier today, yes. In the strategy document, yes." 56 Environmental factors: The obtaining of an environmental impact study as to the installation of screening on the Glenlee Bridge was suggested as an unnecessary delay. For instance, in his report Mr Jamieson said a more safety conscious attitude by the defendant rather than a concern for completing environmental assessments would have meant the fencing would have been affixed months or years earlier.

57 Terence McCoy, a civil engineer and project development manager with the defendant, had the responsibility from a brief given to him in January 1997 of preparing a review of environmental factors affected by proposed barrier screens on twenty bridges on the Hume Highway/F5, the F3 and the Cumberland Highway/Pennant Hills Road; the Glenlee Bridge was not included but on 5 June 1997 it was added, together with three other bridges on the F5 and one on the F3.

58 Under s 111 of the Environmental Planning and Assessment Act 1979 the defendant had a legal obligation to conduct a review of environmental factors and, if it thought it to be sufficiently significant, to prepare an environmental impact statement as to the erection of screens on overbridges. Mr McCoy completed such a review on 9 July 1997 and on 20 August 1997 it was determined that an environmental impact statement was not required.

59 The undertaking of a review, of course, required the type of bridge to be settled and design work completed. Albeit it may be said the decision to screen came late in the day, at least the review itself progressed the eventual screening. For the Glenlee Bridge the proposal involved attaching 3 metre high steel screens to both outside edges of the deck of the bridge using high tensile steel bolts cemented into holes in the deck.

60 Findings: I make the following findings as to the background facts - (1) The Glenlee Bridge was constructed over the Hume Highway/F5, a high-speed freeway, in November 1977.

(2) The site was located in a remote and rural area leading to a private house.

(3) The bridge was for vehicular traffic with no provision for pedestrian traffic but pedestrians could access it by use of the roadway; it had a waist-height metal crash rail but was not screened.

(4) The F5, like other freeways, was built according to standards laid down by the National Association of Australia State Road Authorities with parameters derived from American sources so that there was an established connection with American standards and experience.

(5) In September 1970, at the latest, the defendant had a copy of a publication dated 1 December 1968 entitled "A Guide for Protective Screening of Overpass Structures" prepared by the Committee on Planning and Design Policies of the American Association of State Highway Officials. The guide noted that the problem of objects being thrown or dropped from overbridges onto vehicles travelling on the freeway below had become serious in some areas. Where there was any doubt as to the need for screening to remedy the problem then screens should be erected initially; on existing structures, screens should also be installed where incidents of objects being dropped had occurred on a bridge and nearby structures and increased surveillance, warning signs or apprehension of persons involved would not effectively alleviate the problem.

(6) The American guide as to the screening of overbridges was not considered by the defendant in its programme for the construction of freeways. It was not until November 1995 at the earliest that the defendant became relevantly aware of the American guide, although it was in its possession since September 1970, and, even then, no immediate reliance on it was made.

(7) Prior to 1995 nobody within the defendant's organisation had the duty to assess hazards from overpass structures.

(8) The addition of an appropriate safety screen on the Glenlee Bridge would have been less complicated and involved if fitted during the initial construction in 1977 than being "retro-fitted" in 1998 and for extra cost of a marginal or insignificant amount; it would have been reasonable and consistent with the American experience to have screened the bridge when constructed in 1977.

(9) The first recorded incidents of objects dropped from overbridges in the Sydney Region of the defendant's operations were made in 1992 - they were on the M5 motorway near the Glenlee Bridge in the Campbelltown area - followed by unrecorded incidents reported by road users in March 1992 on the F5 near Campbelltown and at the Glenlee Bridge in September 1993.

(10) The defendant's response that the provision of preventative screening was not justified at that time was an inappropriate and unreasonable response in light of the emerging incidents, particularly with the American experience; even more so was the defendant's view that there was little it could do and it was a matter for the police.

(11) The defendant's statement that the enclosure of bridges with wire mesh was only practicable with pedestrian bridges and that the screening of vehicular bridges may impose problems was an unreasonable denial of the safety issues involved and contrary to what could have been done as shown by later measures to screen bridges.

(12) After September 1993 there continued a litany of incidents of objects being thrown or dropped from overbridges onto the roadways below, including on the F5, and reported comments by police would indicate there were very likely to be many incidents not reported to the defendant; there was an absence of action by the defendant at its regular monthly traffic meetings with police and local authorities to ascertain such particulars and to relevantly address the issue.

(13) The defendant's policy up to mid 1995 not to erect fencing or barriers on overbridges represented an unreasonable disregard for what was occurring in practice.

(14) The erection of screening fences or barriers on overbridges, consistent with the American guide from its experience, was an appropriate means to address the safety risks involved with overbridges for users of the freeways; it would have been a reasonable measure, particularly in remote rural areas, so as to avoid or, at the least, make less likely, injury to those users.

(15) The defendant's recognition in mid-1995, as a result of a fatality in Victoria in 1994 and publicity associated with further incidents in the Sydney Region, of the need to screen pedestrian bridges and vehicular bridges with a pedestrian facility (unlike the Glenlee Bridge) was a first step to remedial action but disregarded the real risk on vehicular bridges which a pedestrian could access by the roadway (like the Glenlee Bridge).

(16) The defendant's initial attention of screening State roads and not national roads such as the F5, but for which it still maintained responsibility, unreasonably ignored a real and potential risk of very busy freeways passing under bridges in remote areas.

(17) The defendant's decision in January 1996, following a rock-throwing incident that month on the F5 at the Raby Road bridge in the Campbelltown area, to seek funding in 1996/97 to erect fencing on all bridges over high-speed freeways met with favourable support from both the State and federal ministers.

(18) The defendant's delay in effecting that decision to screen bridges in the 1996/97 year was relevantly unexplained, other than in terms of funding issues with increasing costs in doing so. However, the general allocation of $27.36 million in 1996/97 for safety and urgent minor works, which included bridge screening, was underspent by $3.26 million - there was no application to carry forward that amount and where in that year the cost of screening was $50,000 for each bridge at a total cost of $2.2 million.

(19) The defendant's methodology in determining a priority rating for the screening of bridges was flawed in that it gave a high weighting to pedestrian access and to a history of incidents/graffiti as distinct from one or two incidents; the matrix was thus biased in favour of bridges near schools, hotels or clubs, other pedestrian generators and with exposure to buildings as against bridges over high-speed, restricted access roads on the outer urban freeways - such as the Glenlee Bridge and characteristic of those bridges with the highest risk.

(20) The resultant priority for the Glenlee Bridge so as to be due for screening in 1999/2000 was unreasonably delayed. That was particularly so where in 1996/97 the underspent funds were directed to noise abatement works rather than the safety issue of bridge screening.

(21) The 1997/98 budget for safety and urgent minor works was $25.99 million but it was an amount indicated by the federal government from the prior year's amount. There was no evidence why specific funding for bridge screening was not sought or why there was no application to use the $3.26 million underspent from the 1996/97 budget. And that was in a context where the defendant had bids from its regions for a total amount for 1997/98 for safety and urgent minor works of $41.0 million but with no apparent co-ordination of the need for bridge screening so that the $41.0 million was simply pared down to $25.99 million - that is indicative of a budgetary process not in accordance with the real and reasonable needs, particularly as to safety considerations.

(22) If a need arose for certain works to be done then budgetary constraints on the defendant were no impediment as there could have been a re-allocation of available funds to the more necessary works.

(23)What occurred at the Glenlee Bridge on 23 August 1998 when Mr Evans was fatally injured was reasonably foreseeable. Expert evidence 61 The parties qualified three persons to give expert evidence as to the various issues in this case: Mr Jamieson for the plaintiff; and Mr Fishburn and Professor White for the defendant. Their evidence traversed much of the material in the factual background as has been set out earlier and it has been taken into consideration in making the findings on those background facts. Nevertheless, for completeness, short reference should be made to it.

62 Mr Jamieson, from an engineering/scientific viewpoint, in terms of the foreseeability of an incident occurring said that the throwing of an object from a bridge was totally foreseeable as "a matter of 'common knowledge' and probably has been occurring before Roman times." He considered the simplest countermeasure to such incidents was to provide rail mounted mesh fencing to directly prevent the event and there was no practical reason from a structural engineering viewpoint why a structure of that nature could not be added. Mr Jamieson inspected the Glenlee Bridge on 16 August 2005. Significantly, and appropriately in view of my findings, Mr Jamieson criticised the defendant's risk analysis and priority rating exercise as not being based on any formal risk engineering principles but on more of a subjective process by the rater. For instance, he explained in his report of 18 August 2005, in a manner I would accept, in this way: "The key issue arising from this methodology concerns the scoring of each individual site - and its resultant prioritising. For example, a site can score "20" because of its proximity to a school and "youth attraction". Such a site may eventually score higher than an isolated site, and its ultimate priority for rectification would be high.

This example "risk factor" involving schools presupposes a process or sequence of events that involves school children throwing objects off bridges while walking to or from school in broad daylight. While the detail of previous incidents is not known, subjectively, it is considered unlikely that such a possible scenario should receive any significant weight.

An alternative, more likely process leading to concrete being dropped from a bridge, would be one which occurs at locations away from prying eyes, i.e. under cover of darkness at remote and isolated locations." 63 In the result, Mr Jamieson, after reviewing the defendant's risk assessment process and evaluation matrix, concluded, as indeed I have earlier, that the Glenlee Bridge should have been given a higher score than it eventually received so as to increase the priority rating for screening.

64 Mr Fishburn presented a very detailed and comprehensive report dated 1 May 2007 in which he attended to financial restrictions placed on the defendant in maintaining and upgrading the F5, the system in place prior to August 1998 for the construction of screens over the F5, the priority system and criteria used, any undue delay in screening and the defendant's reaction to the dropping of objects from the Glenlee Bridge on 10 August 1998. Mr Fishburn reasoned that the defendant's risk management technique "was a very good method to use" and that generally its response to the problem was reasonable for a prudent road authority to take. It will be apparent from my findings that I do not accept Mr Fishburn's views.

65 Professor White reported on 20 October 2006. As a criminologist, the Professor examined the likelihood and prevention of rock-throwing from overpass bridges and responses available to such activity in the context of prevention through environmental design. He, like Mr Jamieson, thought rock-throwing associated with vandalism to have a long history and, perhaps contrary to the defendant's approach in emphasising the nearby presence of schools, said there was insufficient evidence to attribute it to young people and children - there was a considerable variation in the profile of the throwers of rocks. Indeed, Professor White as to the risk assessment technique adopted by the defendant said that it "was constructed primarily from the point of view of 'safety' rather than 'crime' ", and had it incorporated a criminological dimension "then the criteria and the process may well have been different." Of course, the very reason for erecting a screen on a bridge is to deter or prevent the criminal act of throwing objects onto users of the road below by adopting the safety mechanism of a screen. As the Professor acknowledged, "It is precisely the isolated position of the bridge, its modest use at this time of the day, and its functional use for motor vehicles but not pedestrians, that makes it a suitable venue for this type of activity" - those aspects, as I have earlier indicated, were the very criteria which the defendant's risk assessment technique gave little or no weight resulting in a lower priority for screening the Glenlee Bridge.

66 Acting on the proposition that the perpetrators had chosen the Glenlee Bridge rather than the bridge choosing them, Professor White considered "there was no way that the RTA could have predicted the specific event." I disagree; that statement is, with all respect to Professor White, a non sequitur. By reference to the testimony, he said, "the actions of the perpetrators were largely 'spontaneous' and 'unthinking'." However, evidence in the proceeding from statements made by some of those involved in the incident makes it clear that they, or some of them, were involved in the rock-throwing incidents on 9 and 10 August 1998 at the Glenlee Bridge, Menangle Bridge and the bridge at St Andrews Road; they deliberately targeted the Glenlee Bridge on 23 August 1998 so that, in my view, what occurred was in fact readily foreseeable in the circumstances of the nature and location of the Glenlee Bridge.

67 Professor White reached the following general conclusion: "The variability surrounding risk assessment and preventive measures is due to a combination of technical, financial and human factors. The construction of risk and of appropriate prevention takes place in the context of budgets, priorities, human behaviours, physical environments and potential harms.

Specific events, such as demonstrated in this case, are difficult to predict or to prevent precisely because of their unique qualities. Modification of physical environments is only one variable in what are very complex social phenomena." 68 Be all that as it may, the fact is that in 1968 the American experience pointed to the appropriateness of screening these overbridges against the very serious and fairly frequent conduct of throwing or dropping objects from overpasses onto the freeways below thus putting road users at high risk of injury - screening was suggested on construction of an overpass or later modification of an existing unscreened structure. The commencement of incidents in the Sydney Region of the defendant in 1992 and the continuing incidents thereafter at regular intervals, as well as the 1994 fatal incident in Victoria, highlighted the American experience and the need to address the problem in a timely way. Clearly, on the facts here, it took the most unfortunate death of Mr Evans on 23 August 1998, following the incidents on 9 and 10 August 1998, to screen the Glenlee Bridge by 17 October 1998 and for State, not federal, funds to be made available to screen all remaining overbridges on the F5 freeway/Hume Highway by July 1999.

The subject incident on 23 August 1998 69 It is apparent from statements obtained by police following the incident on 23 August 1998 and from convictions obtained that four persons were involved, namely, Sean Sutcliffe, Lance Chapman, Sean McGoldrick and Liam McGoldrick. Some or all of them were involved in the rock-throwing incidents on 9 and 10 August 1998 at the Glenlee Bridge, Menangle Bridge and the bridge at St Andrews Road. What emerges from the statements may be stated in summary form as follows- . About two weeks prior to 23 August 1998, Sean Sutcliffe at a social gathering was heard to say "I've been down to the overpass throwing rocks off the bridge onto the traffic…I only throw it at trucks."

. The rocks thrown from the Glenlee Bridge on 10 August 1998 were in all likelihood thrown by Lance Chapman, Sean McGoldrick and Liam McGoldrick according to what Lance Chapman said.

. The strong possibility from a statement made by a Colin Claude Daw after a discussion with Sutcliffe in early August 1998 was that Sutcliffe was amongst those who threw rocks from the bridge at St Andrews Road on 9 August 1998.

. The rocks thrown from the Glenlee Bridge on 23 August 1998 were collected from Sutcliffe's home at the nearby suburb of Bradbury and placed in the boot of his vehicle for the specific purpose of throwing them from the bridge.

. The four named persons then drove to the Glenlee Bridge around midnight on 22 August 1998 in a car driven by Sean McGoldrick.

. Each of the four persons pushed a rock from the bridge onto the F5 below; the rock pushed by Sutcliffe was the rock, according to Chapman's statement, that struck Mr Evans' windshield and from which he was killed.

. Sutcliffe denied the rocks were thrown at cars because that would be "a bit dangerous" and they were only thrown at trucks - "It wasn't meant to hit where it went, it was meant to hit in the back." 70 Counsel for the defendant submitted that the death of Mr Evans was caused by the deliberate and criminal act of Sean Sutcliffe who had a well-formed intention by earlier collecting the rocks at his home and having Sean McGoldrick drive the car to the Glenlee Bridge where he and the three other persons set about their activities with deliberation. Thus, submitted counsel, the death of Mr Evans was not caused by the absence of a screen, although that may have facilitated the event, but rather by the well-formed criminal intention of Sean Sutcliffe to cause damage to vehicles on the freeway.

71 This issue will be returned to in considering whether there was a breach of any duty, but at this stage it is sufficient to point out that whilst the direct cause of Mr Evans' death may have been the criminal act of throwing the rock there arises for consideration the indirect cause of the failure to screen the bridge and but for which the direct cause may not have existed. It needs to be observed that negligence, certainly in a common law sense, in my view may be the causa causans of injury but it may occur also from the causa sine qua non as pleaded in the particulars of negligence here.

72 The final thing to observe about the event of 23 August 1998 at the Glenlee Bridge is that it followed the events on 9 and 10 August 1998, and in the context of the litany of similar events since 1992, and as to which, as Mr Dunlop said in moving to screen the Glenlee Bridge, "there was obviously something happening down at that location which was unusual, and we needed to respond to it." Further, Mr Onggo agreed that with a screen in place it would require a rare ability for a person to launch an object from the bridge so as to time it to strike a vehicle below. In any event, an overall view of the evidence, including the American experience, would tend to show that screening was an effective deterrent. The following evidence from Professor White is instructive in this respect: "Q. Professor White, based on the details you were asked to assume in those last few questions by Mr Perry, if there had been a metal mesh fence it wouldn't have been possible to place this rock on the rail and merely drop it onto a vehicle travelling below, would it? A. That's true, yeah." Duty of care 73 Defendant's case: The defendant conceded it had a duty to take reasonable care for the safety of road users and, in that respect, it had the care and control of the Glenlee Bridge and the F5/Hume Highway below it at Menangle. However, it was denied that the scope of the duty extended to the prevention of the commission of criminal acts by third parties on road users. Through its counsel, Mr Phillip Perry, the defendant put, therefore, that the key question concerned the extent of the duty of care in circumstances where the conduct by the third parties in dropping objects from the Glenlee Bridge was not merely opportunistic but rather was planned, thought about and deliberate - there was no power in the defendant, said counsel, to control the conduct of those persons; its only power was to do something to the bridge by erecting a screen but there was no duty imposed on the defendant to do so: see per Lord Goff of Chieveley in Smith v Littlewoods Organisation Ltd [1987] AC 241 at 270; and Modbury Triangle (per Gleeson CJ at 265 in para [25]). The Chief Justice in Modbury Triangle (at 266 in para [26]) cited with agreement, on the basis that the common law does not ordinarily impose liability for omissions, the following passage from what his Lordship said in Smith v Littlewood:

"Now if this proposition is understood as relating to a general duty to take reasonable care not to cause damage to premises in the neighbourhood…then it is unexceptionable. But it must not be overlooked that a problem arises when the pursuer is seeking to hold the defender responsible for having failed to prevent a third party from causing damage to the pursuer or his property by the third party's non deliberate wrongdoing. In such a case, it is not possible to invoke a general duty of care, for it is well recognised that there is no general duty of care to prevent third parties from causing such damage." (Original emphasis.) 74 Mr Perry emphasised by reference to Smith v Leurs (1945) 70 CLR 256 at 262 (per Dixon J) that "the general rule is that one man is under no duty of controlling another to prevent his doing damage to a third." In other words, as Mr Perry said as to the present case, although the defendant took steps, and indeed was taking steps, in an effort to inhibit the type of criminal conduct which killed Mr Evans, it had no power to control their activities. This aspect of control in determining the scope of a relevant duty of care was illustrated by counsel by reference to what Hayne J reasoned in Modbury Triangle (at 291-292 in para [109]) where it was alleged reasonable care required the leaving on of lights in a car park and the failure to do so subjected a user of the car park at night to a foreseeable risk of injury from assault by third parties. His Honour said: "If the appellant owed the first respondent a relevant duty of care, it was to take whatever steps were reasonable in all the circumstances to hinder or prevent any criminal conduct of third persons which injured the first respondent or any person lawfully on the premises. But the acts of those third parties resulted from the choices which they made. Moreover, they were choices which were, as I have said, not necessarily dictated by reason of prudential considerations, it was, therefore, a duty to take reasonable steps to attempt to affect the conduct of persons whom it had no power to control. No such duty has been or should be recognised." (Original emphasis.) 75 In terms of foreseeability of any risk to Mr Evans as a user of the freeway in order to establish a duty on the defendant, Mr Perry conceded on the present facts that it was indeed foreseeable somebody might drop an object from the Glenlee Bridge on the night of 23 August 1998 with the intention of causing damage to traffic below or, alternatively, with reckless indifference to the damage which may be caused. However, submitted counsel, foreseeability in itself did not create the type of duty contended for by the plaintiff: see Perl Ltd v Camden London Borough Council [1984] QB 342 at 357-358; and Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 479 per Brennan J and at 502 per Deane J. In Modbury Triangle (at 298 in para [137]) Callinan J similarly found by commenting that "foreseeability alone is not enough to found a duty." This conclusion was explained by Gleeson CJ in Modbury Triangle (at 267 in para [29]) in this way: "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." 76 And, so Mr Perry submitted, in the absence of a special relationship, the general proposition stated in Modbury Triangle applied to deny a relevant duty of care on the defendant towards Mr Evans - by extension, there was then no ground for recovery by the plaintiff against the defendant under s 151Z(1)(d) of the Workers Compensation Act.

77 Mr Perry illustrated the application of the Modbury Triangle doctrine, consistent with his submissions, in the case of Ashrafi in which a sleeping person in a motel was struck on the head with an iron bar by an unknown person through a small gap in a sliding window of her room which had an internal locking device - it was claimed that the owner of the motel should have installed an external security grille to prevent access by an intruder. It was held that the duty of an occupier did not extend to taking reasonable care to prevent physical injury, in the absence of special circumstances warranting an exception to the rule in Modbury Triangle, from the criminal behaviour of third parties on the land; that was so even where the risk was foreseeable.

78 The existence of a "special relationship" or "special circumstances" toward the operation of the Modbury Triangle principle, in terms of the scope of a duty of care owed by a road authority such as the defendant here, was dealt with by Mr Perry by reference to Leichhardt Municipal Council v Montgomery (2007) 81 ALJR 686 in paras [123]-[125] in the decision of Kirby J in a case concerned with footpath maintenance. His Honour was speaking of whether the duty of a road authority was non-delegable, and therefore of a special dependence, as existed in relationships such as hospital/patient, employer/employee and school authority/pupil; it was found not to exist as between roads authority/road user. It was added by Kirby J (in para [125]): "…users of roads are normally unknown and unknowable to roads authorities. They do not represent a closed category. Their identities and number are not typically known in advance. They comprise pedestrians, truck and car drivers, motorcyclists, bicyclists, scooter-riders, skateboard users runners, walkers and a great variety of other persons. Their individual needs are infinite in their variety. In such circumstances, to recognise a non-delegable duty in respect of them, would be extremely burdensome and costly. It would be such that the duty could not readily be met by reasonably adapted preventive measures." 79 Counsel furthered the point as to the scope of the defendant's duty of care by reference to Roads and Traffic Authority of NSW v Dederer (2007) 81 ALJR 1773 which, although not concerning criminal conduct, did deal with the nature of the duty imposed on the defendant as a roads authority by citing Modbury Triangle and Montgomery: see Dederer at 1784, 1786 and 1787 in paras [46], [51], [52] and [54]. Mr Perry thereby emphasised the point, as Gleeson CJ made in Modbury Triangle (at 266 in para [28]), that "the common law distinguishes between an act affecting another person, and an omission to prevent harm to another. If people were under a legal duty to prevent foreseeable harm to others, the burden imposed would be intolerable."

80 Given, then, the distinction between an act affecting another person and an omission to prevent harm, Mr Perry submitted that the alleged failure to fit screens to the Glenlee Bridge was in the latter category so that it could not lead to a conclusion the defendant owed any relevant duty to road users to attempt to control criminal conduct; what affected Mr Evans was the result of the criminal conduct in the throwing or dropping of an object from the bridge.

81 Plaintiff's case: Counsel for the plaintiff, Mr R S Sheldon, put the primary submission that Modbury was not support for the proposition that there was no liability for harm the genesis of which was the result of criminal activity. That is, it did not follow from the commission of a crime that the defendant thereby owed no duty to users of the highway to take reasonable care for their safety by having a properly secured overbridge. Indeed, Mr Sheldon submitted, Gleeson CJ in Modbury (at 267 in para [30]) specifically left open the circumstances of illegal activity when his Honour said: "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. The possibility that knowledge of previous, preventable, criminal conduct, or of threats of such conduct, could arguably give rise to an exceptional duty, appears to have been suggested in Smith v Littlewoods Organisation Ltd ([1987] AC 241 at 261 per Lord Mackay of Clashfern)." 82 Given that the defendant owed a duty to exercise reasonable care for the safety of road users and that the test for determining liability of a roads authority was the ordinary test of liability in negligence - see Brodie v Singleton Shire Council (2001) 206 CLR 512 at 577 in para [150] - Mr Sheldon said the present issue was concerned with the scope of the duty.

83 Mr Sheldon maintained the defendant's reliance on Modbury Triangle was an overly generous interpretation in its favour of the reason of the High Court and failed to account for the exceptions to and limitations on the principles discussed in that decision. In Modbury Triangle the basis for denying liability developed from the fact that the defendant there was a mere occupier of land whereas the defendant in the present case was a roads authority, a statutory entity, which had itself constructed the F5 freeway and Glenlee Bridge to its own design and exercised control over those facilities; it had a high degree of predictability over an extended period of many years of exposure of road users to a risk of injury or death from the throwing or dropping of objects from the bridge. It was unexceptionable, counsel submitted, for a roads authority to be held liable in negligence as demonstrated by Royal v Smurthwaite [2007] NSWCA 76 where the Roads and Traffic Authority was found to be liable for the defective design of a highway intersection in conjunction with a primarily liable driver.

84 Mr Sheldon identified a number of factual differences between Modbury Triangle and the present case to support a submission that Modbury Triangle was distinguishable, particularly in respect of the degree of control which could have been exercised by the defendant over third parties in their conduct at the Glenlee Bridge. The principal control available to the defendant was appropriately screening or fencing the Glenlee Bridge. Reference in this respect of control was made to Edson v Roads and Traffic Authority (2006) 65 NSWLR 453 in which Ipp JA, with whom Beazley JA and Hunt AJA agreed, said (at 469-470 in para [104]): "…Where the exigencies of life and human nature combine to cause large numbers of persons to take grave risks in utilising areas under the control of a statutory authority, the community expects that the authority itself will take reasonable steps to limit the harm likely to result. It was the very function of the RTA, after all, to promote traffic safety. Considerations of common humanity would require the RTA to act…" 85 In distinguishing Modbury Triangle, Mr Sheldon made the following points - . The very subject of the risk here was created by the defendant whereas in Modbury Triangle the coming of darkness, no doubt to hide the perpetrators, could not be overcome by any act on the part of the occupier of the car park where the assault occurred.

. There was nothing intrinsic to the car park in Modbury Triangle that gave rise to the risk as it could have happened anywhere whereas the occurrence here could only have arisen on a bridge over the high-speed freeway.

. Because the bridge crossed the freeway the opportunity was given to people to throw objects from it onto the freeway below and it was the very construction of the bridge that gave rise to the risk; a car park adjacent to a suburban shopping centre was quite different as in itself it provided no such opportunity, but the subject incident could not have taken place on an adjoining street.

. The risk engendered by the bridge crossing the freeway could be controlled by physical means within the capacity of the defendant so as to prevent a direct physical barrier to the throwing of objects from the bridge; Modbury Triangle concerned a psychological deterrent of better illumination of the car park. 86 Mr Sheldon concluded: "It was of the essence of the configuration of the F5 and the Glenlee Bridge that an opportunity was created by that configuration for the entirely foreseeable activity of dropping objects from the bridge: the RTA created the risk. That fact alone is enough to distinguish Modbury. "

87 Consideration of Modbury Triangle: In Modbury Triangle the defendant was the owner of a shopping centre which had an adjacent outdoor car park controlled by the defendant. The car park was illuminated at night by floodlights. The plaintiff was employed in a video shop in the centre and on ceasing work one night was assaulted by three persons as he walked to his car in the car park - the floodlights had been turned off shortly beforehand. Gleeson CJ held that an occupier of land did not ordinarily owe a duty to take reasonable care to protect lawful entrants from the criminal conduct of third parties; Hayne J decided that liability depended on some "special relationship" and agreed with Gleeson CJ; Gaudron J agreed with Gleeson CJ and Hayne J; and Callinan J decided that there had to be "something special in the circumstances, or the nature of the relationship between the plaintiff and the defendant."

88 It may be undoubted that Modbury Triangle represents the law in Australia and it may be undoubted also that I am bound to follow it. However, I do not understand the doctrine so stated as laying down a universal rule that an injured person is excluded from recovering damages from an occupier in negligence where the damage is consequent upon the criminal act of a third party. So much is clear, it seems to me, from the judgments in the case where they speak of a duty not "ordinarily" owed and where exceptions arise from a "special relationship" or "special circumstances". Also, of course, a consideration of the application of the rule is to be evaluated in terms of the particular facts of this case and in light of the usual principles of the law of negligence. As the Earl of Halsbury said in Quinn v Leatham [1901] AC 495 at 506, cited with approval by Priestley and Handley JJA in Production Spray Painting & Panel Beating Pty Ltd v Newnham (1991) 27 NSWLR 644 at 645, that: "…every judgment must be read as applicable to the particular facts proved…since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found."

89 The content and breach of the duty of care imposed on road authorities was stated in Brodie (at 577 in paras [150] - [152]) by Gaudron, McHugh and Gummow JJ as follows: "150 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 LG Act 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.

151 The perception of the response by the authority calls for, to adapt the statement by Mason J in Wyong Shire Council v Shirt (1980 146 CLR 40 at 47 - 48, a consideration of various matters; in particular, the magnitude of the risk and the degree of probability that it will occur, the expense, difficulty and inconvenience to the authority in taking the steps described above to alleviate the danger, and any other competing or conflicting responsibility or commitments of the authority. The duty does not extend to ensuring the safety of road users in all circumstances...In the application of principle, much thus will turn upon the facts and circumstances disclosed by the evidence in each particular case.

152 In dealing with particular cases and in determining factual issues respecting breach of duty, it may be convenient to differentiate between the design and construction of a roadway, between subsequent works done on it and between courses of inspection to ascertain its soundness. These matters are not mutually exclusive and sometimes may overlap." 90 In considering the construction and design of roadways, their Honours as to a foreseeable risk of harm commented (at 579 in para [157]) that "if a ravine is cut alongside a road, or exposed by the removal of natural scrub, it might well be incumbent on an authority having the management of that road to install fencing to prevent users of the road too easily falling into the ravine…"

91 In Dederer (at 1784 in para [46]), Gummow J affirmed that the duty of the Roads and Traffic Authority to exercise reasonable care was not obliged to do so in the abstract and it was still less obliged to ensure that a road be safe in all circumstances: see also Montgomery.

92 Edson was a case in which a teenage girl was seriously injured when struck by two cars as she attempted to cross a freeway owned and controlled by the Roads and Traffic Authority; she was able to do so, as did many other persons with high frequency, because the Authority had failed to ensure that a particular sound wall and fence be repaired so that the freeway could not be traversed. Ipp JA reviewed the statutory functions of the Authority under the Transport Administration Act 1988 and its powers as to road works carried out on freeways under the Roads Act 1993 and said (at 464 in para [79]) that there was nothing in the legislation to exclude it from compliance with the common law. His Honour concluded as follows in holding that the Authority owed persons crossing the freeway a duty of care (at 468 in para [97]): "The RTA was the owner and in control of the freeway and the freeway reserves on which the sound wall and the fence were constructed. It was also the owner and in sole control of the wall and the fence, which it maintained. It had the exclusive function of making decisions as to what roadwork was to be carried out on the freeway. Roadwork, as the dictionary to the Roads Act provides, includes any kind of work constructed or installed in the vicinity of the freeway for the purpose of facilitating its use as a road. The wall and the fence were constructed or installed for the purpose of facilitating the use of the freeway as a road. The RTA knew that large numbers of persons crossed the freeway by the path on a daily basis. It knew that this was an extremely hazardous practice and had led to a number of people being killed and seriously injured. It knew of the attractions of Raby to the persons who lived in St Andrews and the incentives to them to cross by the path, The RTA's own senior officers had enjoined it to take appropriate steps to remove or reduce the danger. The users of the freeway and the persons living adjacent to it had no one else on whom they could rely to deal with dangers that the freeway and its surrounds might cause." 93 If the unscreened Glenlee Bridge, which facilitated the use of the F5 as a high-speed freeway, be substituted for the sound wall and fence in the above extract then, it seems to me, the conclusion of his Honour is equally applicable to the present case so that the defendant had owed users of the F5, including Mr Evans, a duty to exercise reasonable care for their safety - the dangers posed by an unscreened bridge over freeways were well known to the defendant from previous incidents on it and other overbridges from objects thrown or dropped onto the freeway below and senior officers of the defendant had recognised the risk posed and the need to provide relief by appropriate screening. The defendant was in a unique position as the roads authority to do so, The only distinction between the two situations, as I view them, is that in Edson injury directly resulted from the cars hitting her, where the drivers in some circumstances may also have been guilty of negligence, whereas in the present case the criminal conduct of the dropping of an object from the bridge directly led to fatal injury - either way, however, it was the structure itself, unscreened bridge or unrepaired wall and fence, which materially contributed to the injury. This raises the issue from Modbury Triangle that the defendant could not control the criminal conduct so as to exclude such conduct from its duty of care.

94 Apart from criminal conduct as the cause of what occurred to Mr Evans, there is the factual circumstance that the unscreened bridge, designed and constructed by the defendant, provided the opportunity and the means for such conduct to occur by those inclined to engage in it as was well known to the defendant - the causa sine qua non. A screen fitted to the bridge, such as the 3 metre high steel mesh installed later on 17 October 1998, would have, on Professor White's evidence, made it impossible for the rock to have been dropped, as it was, onto Mr Evans' truck. Those facts, in my view, are sufficient to distinguish Modbury Triangle where the alleged risk of harm was an unlit car park. Unlike in Modbury Triangle, the defendant here was responsible for the bridge itself as a structure and thereby by its design and features could directly control the conduct of persons using the bridge for whatever reason, criminal or otherwise. It is very much analogous to the sound wall and fence in Edson rather than the car park in Modbury Triangle about which there was no intrinsic feature to connect it with criminal conduct.

95 I have earlier summarised various points of distinction between the present case and Modbury Triangle as made by Mr Sheldon. I accept those points. As counsel said, properly in my view, "the RTA created the risk."

96 Accordingly, I conclude that the Modbury Triangle doctrine has no application to the circumstances of the present case.

97 I should however add, in deference to the submissions of Mr Perry, that the application of Modbury Triangle in Ashrafi does not, in my view, affect the finding made. In Ashrafi, as I have earlier said, the plaintiff was injured while sleeping in a motel when she was assaulted with an iron bar through the open window of her ground floor room. It was alleged the danger could have been avoided by the motel proprietor defendant providing a security door on the window. In rejecting that proposition, Heydon JA, with whom Mason P and Handley JA agreed, commented (in para [82]) that the danger was effectively met by the presence of a lock on the sliding window and there was no expert evidence to suggest that that means of security was ineffective or fell below good standards of practice. Thus, any duty on the defendant was discharged by the provision of the lock and the taking of other precautions, such as removing the capacity to open the window, providing a security door or an armed guard, would be to demand more than the taking of reasonable care against the risk concerned. I think it manifest that those facts in Ashrafi were well distant from those in the present case, particularly as the sliding window had a security lock available but which the plaintiff did not use by opening the window. As Heydon JA said (in para [69]), "the defendant in the present case had no more control over the plaintiff's safety than the occupier had in relation to the first plaintiff in the Modbury case. Both the present plaintiff and the first plaintiff in the Modbury case, had they turned their minds to the question, no doubt would have assumed the premises to be safe." In the case before me, the danger of objects being thrown or dropped from overbridges onto the freeway below was known and the subject of various incidents over a period of very many years.

98 Exceptions to Modbury Triangle: If I be wrong in my non-application of Modbury Triangle, it is necessary to consider whether there is any exception to the rule. I think there is. This can be dealt with quite shortly.

99 In Ashrafi (in para [71]), Heydon JA identified three avenues of exception: first, the existence of special circumstances or a special relationship; second, a high degree of certainty that harm will follow from lack of action; and, third, restricted circumstances not applying to an occupier of land. Mr Sheldon for the plaintiff here relied on the first and second exceptions.

100 In considering the factual background to this matter I made various findings. I do not repeat them. Suffice it to say that, in my opinion, in combination those findings establish special circumstances in relation to the construction and subsequent failure to fence or screen the Glenlee Bridge so as to impose a liability on the defendant for its failure to do so notwithstanding the criminal conduct ending in Mr Evans' death. In particular, reference is made to the American experience in 1968 of which the defendant ought to have been aware by September 1970 when the Glenlee Bridge was constructed in November 1977; the need from experience to secure the safety of road users from overbridges by use of appropriate screening; the incidents over very many years of objects being thrown or dropped from overbridges onto the freeways below (from no later than February 1992); failure until mid-1995 to have any policy regarding the screening of overbridges; delay in effecting the 1996 decision to erect fencing on all bridges over high-speed freeways; the flawed methodology for determining a priority rating for bridges to be screened; lack of attention to the Glenlee Bridge for screening it in a timely way in light of the history of incidents on it; failure to seek funding for screening at a time when the budget for urgent safety and minor works was underspent in 1996/97; expenditure of funds on minor environmental works rather than on the safety screening of bridges; and the apparent lack in that period from 1995 to 1998 of any co-ordinated approach to the screening of overbridges, including from a funding viewpoint.

101 The defendant, as Ipp JA concluded in Edson (at 468 in para [97]), was the owner and controller of the F5 freeway (including the Glenlee Bridge) with the statutory power to decide what roadwork was to be carried out. As His Honour observed (in para [97], "the users of the freeway…had no one else on whom they could rely to deal with dangers that the freeway and its surrounds might cause." I would draw from those remarks that the scope of the duty cast on the defendant is to be seen as involving important public interest considerations. By definition, in my view, that raises matters of special circumstances.

102 It is true, as Kirby J noted in Montgomery (in para [25]), that a roads authority did not have a non-delegable duty of care to road users who were unknown and did not represent a closed category - presumably not as would constitute a special relationship such as employer/employee, school/pupil, parent/child or bailor/bailee. Even so, the duty of care possessed by a highway authority, like the defendant here, was stated by the majority in Brodie (at 558 - 559 in paras [102]- [103]) in this way: "102…on occasions, the powers vested by statute in a public authority may give it such a significant and special measure of control over the safety of the person or property of citizens as to impose upon the authority a duty of care. This may oblige the particular authority to exercise those powers to avert a danger to safety or to bring the danger to the knowledge of citizens otherwise at hazard from the danger. In this regard, the factor of control is of fundamental importance...

103 It is often the case that statutory bodies which are alleged to have been negligent because they failed to exercise statutory powers have no control over the source of the risk of harm to those who suffer injury. Authorities having the control of highways are in a different position. They have physical control over the object or structure which is the source of the risk of harm. This places highway authorities in a category apart from other recipients of statutory powers." 103 Therefore, my view is that in a very real sense the defendant, for the present purpose at least of considering any exception to the Modbury Triangle doctrine, has a special relationship with road users in the public interest to take reasonable care for their safety so as to alleviate against the potential of criminal conduct by third parties in relation to the infrastructure of which it has the sole care and control.

104 In the circumstances so found, particularly the knowledge of the American experience, incidents in Victoria and the history of incidents on the F5 in the Campbelltown area since February 1992, including on the Glenlee Bridge, it was well established with a high degree of certainty that harm will follow from a failure to screen overbridges, such as the Glenlee Bridge, by the criminal conduct of persons dropping or throwing objects from them onto the freeways below.

105 It follows, therefore, that if Modbury Triangle applies then the present is a case within the relevant exceptions as would impose on the defendant a duty to take reasonable care for users of the F5 passing under the Glenlee Bridge as did Mr Evans on the occasion of his fatal injury.

Breach of duty of care 106 Whether what the defendant did or did not do in terms of satisfying its common law duty of care depends upon what was "reasonable". Mr Sheldon relied on the American experience in 1968 for the submission that it was reasonable to screen new bridges over freeways, including the Glenlee Bridge when initially constructed with little extra inconvenience and at modest cost. In any event, counsel said that by the time of the early 1990s there was sufficient manifestation of the risks from actual incidents, as recognised from the American experience, to justify a response by the defendant "retro-fitting" screens on overbridges. From the evidence, Mr Sheldon submitted, properly in my view: "Critically it has become obvious that the defendant had no system for understanding the nature, frequency and extent of complaints made to it, let alone for tracking the knowledge of Police in a given area, in relation to activities such as the throwing of objects from overhead bridges. … …The evidence was clear as to the prevalence of action of the type sought to be guarded against in the Campbelltown region. Whatever else might have been the academically perceived potential for similar occurrences at other bridges the fact remained that those events had actually occurred at a number of bridges in the Campbelltown region, including the Glenlee Bridge." 107 Against that, Mr Perry summarised the reasonableness of the defendant's position in this way: " It is beyond argument that RTA, both before and after Mr Evans' death had in place a program to screen literally hundreds of bridges, that being a program which clearly was continuing in 2002, four years after Mr Evans' death. It is equally clear that RTA at all times was discharging its function to improve safety for motorists in New South Wales…It is a truism that to expedite one project is to retard another. Had RTA, then, done something which was entirely within its power, namely to divert monies from other projects into the bridge screening project, inevitably black spots would have been left unattended, level crossings would have remained without satisfactory protection, and so forth ad infinitum." 108 Again, this aspect of breach of the duty to take reasonable care may be dealt with quite shortly by reference to the factual findings I have made earlier. On all the evidence, it is clear that the appropriate response to the apparent risk of objects being thrown from overbridges was to erect appropriate fences or screens. Whilst that emerged as early as 1968, perhaps September 1970, the defendant did nothing about the problem until mid-1995. And that was despite the commencement of actual incidents in February 1992 and continuing for the next few years, particularly on the F5 in the Campbelltown area. Even then, as I have said, nothing effectively occurred until 1997/98 to screen bridges over national roads such as the F5. It was not until the "spate" of incidents on 9 and 10 August 1998 on the Glenlee Bridge and the two nearby bridges that suddenly the defendant, as Mr Dunlop said in evidence, moved to erect screens and that was completed as soon as 17 October 1998 on the Glenlee Bridge. Mr Dunlop did not see funding as a problem as it would be obtained from "wherever" and, indeed, the Minister forthwith announced State funding to screen the overbridges on the national F5 freeway. For the incident concerning Mr Evans on 23 August 1998 it was, of course, all too late.

109 I am satisfied that the risk posed to users of freeways by an unscreened overbridge, such as the Glenlee Bridge, from objects being thrown or dropped from it was real, known and foreseeable. The appropriate and reasonable response by a freeway authority, such as the defendant, was to fence or screen the overbridge, as in fact the Glenlee Bridge was by 17 October 1998. The failure by the defendant over very many years beforehand to do so, in my view, represents a failure to take reasonable care. The count of negligence is made out.

110 Mr Perry relied on s 5D of the Civil Liability Act to defeat the plaintiff's claim. The section in sub-s (1)(a) requires that the negligence was a necessary condition of the occurrence of harm (factual causation); and sub-s (1)(b) requires that it is appropriate for the scope of the defendant's liability to extend to the harm so caused (scope of liability).

111 In dealing with the application of and any exceptions to the Modbury Triangle doctrine I have effectively dealt with these s 5D (1) requirements in a manner against the defendant. I need say no more about them, other than to emphasise, as Professor White accepted, that what occurred would not have been possible if the Glenlee Bridge had been screened as it later was with a 3 metre high steel mesh fence; also, by reference in particular to Brodie and Edson the occurrence of the harm here for Mr Evans was within the scope of the defendant's duty of care.

Statutory defences to liability for negligence 112 The defendant pleaded reliance on ss 42 and 45 of the Civil Liability Act to defeat the plaintiff's claim. However, during argument s 45 was not pursued; I think the omission to do so was correct. The section operates to excuse a roads authority from liability for the harm arising from a failure to carry out roadwork, or to consider carrying out road work, unless at the time of the alleged failure the authority had actual knowledge of the particular risk which materialised. It is plain from the evidence in this case that the defendant had the relevant degree of knowledge posed by the risk of the unscreened Glenlee Bridge - that was so since mid 1995 at least and certainly by early August 1998. It is only necessary, therefore, to deal with s 42.

113 Section 42 lays down principles concerning resources and responsibilities of public authorities, such as the defendant, in determining whether they have a duty of care or have breached such a duty in proceedings for civil liability. The principles so laid down are as follows: "(a) the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising those functions, (b) the general allocation of those resources by the authority is not open to challenge, (c) the functions required to be exercised by the authority are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceedings relate), (d) the authority may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceedings relate." 114 Mr Perry took the plaintiff's position, that had more money been allocated for bridge screening on the national highway there would have been a screen on the Glenlee Bridge prior to 23 August 1998 when the fatal incident occurred, as a direct challenge to the general allocation of the defendant's resources and so specifically forbidden by s 42(b). Further, counsel referred to s 42(c) as requiring consideration of the broad range of the defendant's activities and not merely bridge screening. And, so counsel submitted: "By application of s 42, then, the duty owed by RTA did not extend to reaching beyond the monies reasonably available to it to bring forward the screening of bridges at the expense of other projects. The allocation of resources is not open to challenge, and that challenge therefore fails." 115 For his part, Mr Sheldon put that the real reason for a lack of funding was the failure of the defendant to perceive the extent of the risk and to respond to it by seeking money to screen bridges in a timely fashion. From the evidence, Mr Sheldon summarised the position against the reliance on s 42 as follows: "The fact that the RTA spent less than it had available to it in circumstances where the budget in question had not been framed by reference to any allowance for screening bridges makes it crystal clear that financial constraints had nothing to do with the fact that the Glenlee Bridge had not been screened.

Money for screening had not been sought because no one properly understood the extent of the problem…The bureaucrats within the defendant had no idea about the problems in 1992 and 1993 because the reports of them did not find their way to the relevant officers. The RTA had no policy of maintaining a dialogue with local police, despite regular meetings, so as to remain abreast of police experience of road network issues…. There is no doubt that the RTA had or could have had the resources necessary to have screened this bridge prior to the accident….

There was no shortage of funds available to fence the bridge after the deceased's death…That death added nothing more to the risk profile of the bridge….

Part of the central issue in this case is whether screening should have been started earlier than it was, including the commencement of the preparatory steps at the same time as they were commenced for the M4, namely in 1994… …" 116 In the result, Mr Sheldon submitted that really the funding position and the defendant's resources came down to the contention that there was no co-ordinating mind in possession of sufficient facts to be able to prioritise the various proposals. As counsel said, "it remains a mystery who dreamt up the project of screening bridges…Someone proposed a budget for it but how that figure was arrived at remains a complete mystery."

117 In my view, if s 42 was to be read strictly, as I apprehend Mr Perry did, then a public authority could simply plead para (b) in most, if not all, cases so as to avoid exposure to liability; that cannot be the intention as it would effectively grant immunity for a public authority from civil liability - all public authorities are granted resources and allocate them in satisfaction of their functions and consistent with their statutory powers. However, to so read the paragraph, I think, would be to deny a proper and responsible approach to its true meaning. In my view, the paragraph is to be seen in terms of a bar to the challenge of "the general allocation" (my emphasis) of resources, that is, not the allocation in any particular case to a certain specified project. There was no challenge here to the defendant's general allocation of its resources but only to the allocation of sufficient funding to screen overbridges from the safety and urgent minor works budget and, even then, only for the Glenlee Bridge. Reliance by the defendant on s 42 is rejected.

Indemnity for plaintiff's loss 118 In light of the findings made, the plaintiff is entitled to a verdict against the defendant as a tortfeasor by way of an indemnity for its payment of compensation pursuant to s 151Z(1)(d) of the Workers Compensation Act for the damages otherwise payable by the defendant in respect of its negligence. As I have said, there was no issue between the parties as to the quantum concerned only as to the calculation of interest - the plaintiff sought interest at court rates being an average of 10 per cent per annum from 3 December 1998 (date of payment of the lump sum death benefit); the defendant conceded an interest component but at 6 per cent per annum being the average Reserve Bank bond rate from 3 December 1998. The calculations made by the parties were up to 31 December 2006 so that they need to be updated to the date of judgment. A determination has to be made, however, as to the appropriate rate of interest.

119 Section 100(1) of the Civil Procedure Act 2005 enables in proceedings for the recovery of money interest to be allowed at such rate as the court thinks fit. The purpose of the discretion so granted is to permit a successful party to be properly compensated for the loss suffered and generally an award of interest will be made: see Ruby v Marsh (1975) 132 CLR 643 at 644; and Falkner v Bourke (1990) 19 NSWLR 574 at 576. However, s 100(3)(a) prohibits the award of interest on interest so that it is only payable on the capital sum. The section does not prescribe any particular rate of interest, but s 101 as to interest on judgments sets out rates in Sch 5 of the Uniform Civil Procedure Rules 2005 and it was those rates which the plaintiff relied upon. Ordinarily, interest under s 100 up to judgment will be allowed at the prescribed rates for s 101 without the necessity for calling specific evidence: Hexiva Pty Ltd v Lederer (No 2) [2007] NSWSC 49 in para [16].

120 It has been held in Wallersteiner v Moir (No 2) [1975] QB 373 that an award of interest at a lesser rate than court rates can only be justified if there is good cause for so doing in the special circumstances of the particular case; it is incorrect to adopt a merely conventional rate of interest: see Legal & General Insurance Australia Ltd v Eather (1986) 6 NSWLR 390 at 409.

121 Mr Perry, in seeking interest at a rate lower than court rates pointed to the commercial nature of the present claim so that the bond rate was said to be appropriate. However, as I debated with counsel, in ordinary trade where the bond rate is used interest accrues on interest whereas with court rates it does not. The suggestion of 6 per cent per annum by the defendant was calculated as simple interest on the capital sum and not compounded. If, as is usually the case, the compounding approach were to be applied to the 6 per cent rate then the resultant interest may be as much, if not more, than that calculated by the plaintiff using the 10 per cent court rate - I had no figures to answer this question. However, I think the answer is resolved by adopting an appropriate rate of interest.

122 I accept the plaintiff's approach for interest to be awarded at court rates being an average of 10 per cent per annum from 3 December 1998 to the date of judgment.

Orders 124 The parties are directed to confer as to appropriate orders to give effect to this decision and to bring into court at a time to be fixed short minutes of order, including as to interest and costs.

17/06/2008 - replaced abbreviation with full title for Roads and Traffice Authority of NSW - Paragraph(s) Citation in coversheet

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