Refrigerated Roadways Pty Ltd v Roads and Traffic Authority of NSW

Refrigerated Roadways Pty Ltd v Roads and Traffic Authority of NSW - [2008] NSWDC 91 - NSWDC 2007 case summary — Zoe

[36]

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.

[46]

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.

[67]

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.

[111]

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:

[112]

"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.

[114]

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."

[128]

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.

[141]

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.

[146]

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.

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