Duty of Care - Gravel and 75 km/h Sign
118 The RTA challenged the finding that it owed a duty of care to the Plaintiff. The starting point for determining this issue is the decision of the High Court in Brodie v Singleton Shire Council (2001) 206 CLR 512. In the joint judgment of Gaudron, McHugh and Gummow JJ, their Honours said:
"[150] … Authorities having statutory powers of the nature of those conferred by the [ Local Government] 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."
119 The particular duties of a road authority referred to in this passage are an application to a particular case of the general principles discussed earlier in the judgment under the heading "Negligence and statutory powers".
"[102] … [T]he 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." [Footnote omitted.]
120 Furthermore, their Honours went on to state:
"[140] … The powers vested by the [ Local Government ] Act in the respondents gave them a measure of control over the safety of the person or property of citizens which was significant and exclusive. In general, road users in New South Wales are not empowered to manage or change the features of public roads. Without the consent of the relevant authority, a person must not erect a structure or carry out work in, or over, a public road, dig up or disturb its surface or remove or interfere with a structure, work or tree upon it. The result, as indicated earlier in these reasons under the heading 'Negligence and statutory powers', is that the powers vested in road authorities give them a significant and special measure of control over the safety of the person and property of road users. This may make it incumbent upon the authority to exercise its powers, whether by averting the danger to safety or by bringing it to the notice of persons in the situation of the plaintiff. In Pyrenees Shire Council v Day ((1998) 192 CLR 330), the powers of the appellant were in this category." [Footnotes omitted.]
121 With respect to the issue of control, the joint judgment referred to Burnie Port Authority v General Jones Pty Ltd (1992) 179 CLR 520 at 551-552. In that part of the joint judgment in Burnie Port Authority, the Court was dealing with the issue of non-delegable duty and gave particular attention to the interaction between the control exercised, relevantly, by someone who had undertaken inherently dangerous activities on his or her property, and the vulnerability of persons outside the premises.
122 The central significance of control in a statutory context such as the one under consideration in the present case, has been emphasised in the most recent relevant judgment of the High Court, Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54. In that case a number of persons had contracted Hepatitis A from oysters contaminated by human faeces. The contamination occurred as a result of run-off which entered Wallis Lake after heavy rainfall. The defendants were the producers and distributors of the oysters (Barclay), the State Government (on the basis of its responsibility to control the oyster industry and environmental quality generally) and the Great Lakes Council (on the basis of its responsibility for the lake environment).
123 The High Court determined that in the particular circumstances of that case, neither the State nor the Council owed a duty of care. Gummow and Hayne JJ delivered a joint judgment with which Gaudron J relevantly agreed (at [58]). Their Honours said:
"[149] An evaluation of whether a relationship between a statutory authority and a class of persons imports a common law duty of care is necessarily a multi-faceted inquiry. Each of the salient features of the relationship must be considered. The focus of analysis is the relevant legislation and the positions occupied by the parties on the facts as found at trial. It ordinarily will be necessary to consider the degree and nature of control exercised by the authority over the risk of harm that eventuated; the degree of vulnerability of those who depend on the proper exercise by the authority of its powers; and the consistency or otherwise of the asserted duty of care with the terms, scope and purpose of the relevant statute …
[150] The factor of control is of fundamental importance in discerning a common law duty of care on the part of a public authority. It assumes particular significance in this appeal. This is because a form of control over the relevant risk of harm, which, as exemplified by Agar v Hyde ((2000) 201 CLR 552 at 562 [16], 564 [21], 581-582 [81]-[83]), is remote, in a legal and practical sense, does not suffice to found a duty of care.
[151] In Brodie , the Council exercised physical control over the condition of the road which it was empowered by statute to maintain and which themselves constituted the direct source of harm to road users ((2001) 206 CLR 512 at 558-559 [102]-[103], 573-574 [140]). The council's measure of control over the safety of the person or property of citizens was 'significant and exclusive'. ((2001) 206 CLR 512 at 573-574 [140]). So, too, the fact of control over, and knowledge of, land or premises has been significant in identifying the duty of care owed to users of land or premises by a statutory authority which controls and manages that land or premises. Again in Pyrenees Shire Council v Day ((1998) 192 CLR 330), the Shire held a significant and special measure of control over the safety from fire of persons and property at the relevant premises. That degree of control was the touchstone of the Shire's duty to safeguard others from the risk of fire in circumstances where the Shire had entered upon the exercise of its statutory powers of fire prevention and it alone among the relevant parties knew of, and was responsible for, the continued existence of the risk of fire." [Some references omitted.]
124 Their Honours went on to consider the liability of the Great Lakes Council and said:
"[152] The Council in the present appeal, by contrast, exercised a much less significant degree of control over the risk of the harm that eventuated. At no stage did the Council exercise control, let alone significant or exclusive control, over the direct source of harm to consumers, that is, the oysters themselves. It may be that the predominantly land-based sources of pollution were all ultimately subject to Council control. That, however, is the start, not the end, of the inquiry. Control over some aspect of a relevant physical environment is unlikely to found a duty of care where the relevant harm results from the conduct of a third party beyond the defendant's control. … What is significant here is the extent of control which the Council had over the risk of contaminated oysters causing harm to the ultimate consumer; control in that sense is not established by noting the Council's powers in respect of some or most of the sources of faecal pollution.
[153] As Lindgren J observed in the Full Court, the relationship between the Council and the oyster consumers is indirect; it is mediated by intervening conduct on the part of others. Between the Council on the one hand and the oyster consumers on the other, their stands, in the present case, an entire oyster-growing industry comprising numerous commercial enterprises, each of which, in pursuit of profit, engages in conduct that presents an inherent threat to public safety. That threat arises from the insusceptibility of oysters to effective and reliable tests to identify contamination of the type that eventuated here.
[154] In broad terms, the Council's statutory powers enabled it to monitor and, where necessary, to intervene in order to protect, the physical environment of areas under its administration. However, the conferral on a local authority of statutory powers in respect of activities occurring within its boundaries, does not itself establish in that authority control over all risks of harm which may eventuate from the conduct therein of independent commercial enterprises. … The conduct of the Council did not 'so closely and directly [affect]' oyster consumers so as to warrant the imposition of a duty of care owed by the former to the latter (cf Agar v Hyde (2000) 201 CLR 552 at 579 [70]). There were 'too many intervening levels of decision making' between the conduct of the Council and the harm suffered by the consumers (cf Agar v Hyde (2000) 201 CLR 552 at 581 [81]). As the trial judge noted, the Council had no direct responsibility for the operation of the oyster industry or the quality or safety of Wallis Lake oysters. It did not control the process by which commercial oyster growers cultivated, harvested and supplied oysters, nor the times or locations at which they did so. The Council has not been given, by virtue of its statutory powers, such a significant and special measure of control over the risk of danger that ultimately injured the oyster consumers so as to impose upon it a duty of care the breach of which may sound in damages at the suit of any one or more of those consumers." [Some references omitted.]
125 This last sentence, being the ultimate finding of the joint judgment in the Barclay Oysters case, has a relevant parallel in the present proceedings, as do some other formulations in the above extract. However, the last is particularly apt. Does the RTA have "by virtue of its statutory powers, such a significant and special measure of control over the risk of danger that ultimately injured [the Plaintiff] so as to impose upon it a duty of care"?
126 Each of the other judgments in Barclay Oysters made reference to control elements in different way. It is unnecessary for present purposes to set them out. It is appropriate however to note the observations of McHugh J:
"[81] Ordinarily, the common law does not impose a duty of care on a person to protect another from the risk of harm unless that person has created the risk. And public authorities are in no different position. A public authority has no duty to take reasonable care to protect other persons merely because the legislature has invested it with a power whose exercise could prevent harm to those persons. Thus, in most cases, a public authority will not be in breach of a common law duty by failing to exercise a discretionary power that is vested in it for the benefit of the general public. But if the authority has used its powers to intervene in a field of activity and increase the risk of harm to persons, it will ordinarily come under a duty to take care." [Footnotes omitted.]
127 His Honour's judgment primarily referred to the circumstances of the case which concerned what his Honour described as "an affirmative duty of care", i.e. a duty in which non-feasance would be a breach, as the joint judgment in which his Honour participated in Brodie established. His Honour also identified a list of relevant questions in the context of establishing a duty of care on a public authority that his Honour had formulated in Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at 39 [93], one of which questions he described (at [84] of Barclay Oysters) as:
"Was the authority in a position of control and did it have the power to control the situation that brought about the harm to the injured person?"
128 In Barclay Oysters McHugh J went on to further consider the element of control and explained Crimmins in part in the following way at [94]:
"But most important of all, the Authority had used its powers to direct waterside workers to places of work that contained reasonably foreseeable risks of injury to the workers. This last point alone was sufficient to create a duty of care although the case was not conducted on that basis."
129 With respect to the alleged duty of the Council in Barclay Oysters his Honour said:
"[99] … There was simply no relationship between the Council and oyster consumers sufficient to create a duty of care. … To create a duty, the relationship between the public authority and persons affected by the conduct of the authority must be 'so closely and directly affected by [its] act [or omission] that [it] ought reasonably to have them in contemplation as being so affected' ( Donoghue v Stevenson [1932] AC 562 at 580 ) when it directs its mind to the relevant conduct in question. In considering whether it should exercise its powers over pollution, the Council was no more concerned with oyster consumers than any other section of the public or individual. There was no close or direct relationship between oyster consumers and the Council such that it had a duty to take care for the safety of each and every one of them. In that respect, the Council stood in a different position from that of the Barclay companies which had a direct relationship with the consumers of their product."
130 The statutory scheme of the Roads Act is set out in par [24] above. By s71 a roads authority "may carry out work on any public road for which it is the roads authority". The RTA is the roads authority for certain roads by force of statute or regulation (s37) and has an exclusive power to make decisions on roadwork with respect to certain roads (s61). These provisions did not apply to Main Road 54.
131 The RTA may assume responsibility for some or all of the functions of a roads authority by agreement (s62). Alternatively, it may exercise such functions whether or not it is the roads authority (s64). It was submitted that each of these provisions, in the alternative, applied with respect to Main Road 54 by reason of the arrangements between the RTA and the Council. I would, if necessary, reject these submissions, but it is not necessary.
132 A considerable proportion of the submissions at first instance, and on the appeal, focused on whether or not the RTA was or had assumed the functions of the "roads authority" under s62 or s64 of the Roads Act 1993. That emphasis was misconceived. The answer to that statutory question would not determine the RTA's liability in tort. That liability would turn on what functions of a roads authority the RTA had assumed either by s62 or by exercise of the s64 power.
133 The existence of a duty of care at common law, as most recently affirmed in Brodie, turned on what the joint judgment identified at [103] as the roads authority's "physical control over the object or structure which is the source of the risk of harm". (See also Barclay Oysters at [151].) Whether the RTA had control of that character and, accordingly, owed a duty of care to the Plaintiff, depends on a "multi-faceted inquiry" (as Gummow and Hayne JJ said in Barclay Oysters at [149]) focussed on the actual role of the RTA in all the circumstances.
134 The Council did submit that the RTA was liable to the exclusion of the Council. This submission should be rejected. His Honour's reasons for holding the Council directly liable were correct. (See pars [7]-[9] above.) The Council clearly had, in my opinion, the requisite degree of physical control over the works. This is implicit in the provisions of the State Road Maintenance Agreement. (See pars [32]-[41] above.)
135 The Council is engaged by cl 4.1 to "provide" certain services including "delivery of the work program". Clause 2.5 of that Agreement in terminology repeated in Section B.01, Section C.03, Section C.07 and Section F.01 of the Yellow Book, affirms that it is the Council that "carries out the work". An authority which carries out work has "physical control" of the risk of harm relevant in the present proceedings. The role of the Council Superintendent under the Contract with Pioneer, in a form determined by the RTA, confirms the other evidence that it was the Council with Pioneer, to the exclusion of the RTA, that 'carried out' the work.
136 Amongst the documentation supplied by the RTA to the Council were the General Conditions of Contract and RTA Specification G.10 on Traffic Control. The use of this documentation between a Council and a subcontractor was contemplated by the RTA. This documentation makes clear what the evidence establishes to have been the case, that the hands-on role of physical supervision is to be undertaken by the Council through its Superintendent, relevantly, in this case, the Chief Engineer of the Evans Shire Council.
137 There are numerous roles contained in the documentation for the Superintendent. It is unnecessary to set them out in full. Of particular significance are the following:
· Clause 23 of the General Conditions of Contract provides:
"The Works shall be executed in accordance with the Contract and in accordance with any directions of the Superintendent pursuant to the provisions of the Contract."
· Clause 25 provides:
"The Contractor shall personally superintend the execution of the Works or have a competent representative acceptable to the Superintendent present on the site.
…
In the absence of the Contractor and his representative the Superintendent may take such action as he considers necessary to prevent loss of or damage to the works or any property, or to prevent injury to any persons, and the cost of such work shall be borne by the Contractor if the Superintendent so determines." [Emphasis added.]
· Clause 26 provides:
"The Superintendent may object to and direct the Contractor to have removed from the Works any person employed by the Contractor or by any sub-contractor who, in the opinion of the Superintendent, misconducts himself or is incompetent or negligent in the performance of his duties; and any such person shall not again be employed in upon or about the Works without the prior approval of the Superintendent."
· Clause 30 provides:
"In the absence of any relevant provision in the Contract, the material or standard of workmanship, as the case may be, shall be of a kind which, in the opinion of the Superintendent, is suitable for the Works.
If at any time during the progress of the Works the Superintendent is of the opinion that any materials or work are of an inferior description he may direct the removal or amendment of the same by the Contractor who shall comply with such direction at his own cost."
· Clause 31 provides:
"The Superintendent may direct that any materials or work to be used in or form part of the Works shall be examined and/or tested, and the Contractor shall make available the said materials or work."
· Clause 34 provides:
"The Contractor shall proceed with the Works at a rate of progress and in a manner satisfactory to the Superintendent.
The Superintendent may by written notice order the Contractor to suspend the whole or any part of the Works until such time or times and for such reasons as the Superintendent may think fit …"
138 Part 5 of the contract between the Council and Pioneer, relating to "Technical Specification", also includes a number of roles for the Superintendent including the following:
"5.2.3.2 Traffic Controllers
Prior to work commencing, the Contractor is to supply the Superintendent with proof that traffic controllers have attended an approved training course in the duties and responsibilities of controlling traffic, and/or hold an RTA Traffic Controller's Certificate."
139 To similar effect is the contractual obligation in cl 1.5 of RTA Specification G.10:
"The Contractor shall advise the Superintendent of the names of proposed traffic controllers with a signed declaration that they are appropriately trained in the duties of traffic controllers in accordance with AS 1742.3."
140 For present purposes it is particularly significant that pursuant to cl 1.7 of RTA Specification G.10 (referred to in cl 5.3.2 of Pt 5 of the contractual documentation), it is the Superintendent who directs "where and when" temporary speed zoning signs shall be erected. Furthermore, pursuant to cl 4.1, traffic control devices require the approval of the Superintendent before their erection. By cl 1.3 the Traffic Control Plan (which must include a "signpost layout plan") is a document to be submitted "for the Superintendent's approval".
141 The State Road Maintenance Agreement between the RTA and the Council summarises the role of the RTA as: deciding "what work is to be done"; engaging the Council to carry out the work, (Clause 4.1 and recital 2.5 set out in pars [32] and [37] above) and providing funds under s207 of the Act. (See B.01 of the Yellow Book set out in par [46] above.) The oral evidence about what happened in this specific case confirms that this accurately describes the basic nature of the relationship.
142 The broader context is that of a sharing of responsibility between the RTA and Council "for the management of the roads and traffic system in New South Wales" (Recital 2.1). As the body which provides the whole of the funds for work on a main road (s207(2)(a) of the Roads Act 1993), the RTA is accountable, and concerned, to ensure that the funds are properly expended (see, e.g. Recitals 2.2, 2.3, set out in par [37] above). The focus on project management in the Yellow Book (see, e.g. pars [43]-[44] and [48]-[49]), and the requirements that subcontracting by the Councils be conducted within a specific tendering framework (see Yellow Book C.14 set out in par [54] above and Maintenance Agreement cl 6.6 set out at [39]), manifest this interest.
143 The RTA also reserves to itself the ability to require the Council to comply with certain specifications and procedures (see s74 of the Roads Act and clauses 11.3, 11.4, 11.6 11.13 and 11.15 of the Maintenance Agreement set out in par [41] and in the Yellow Book see cl 6.1 set out in par [38]).
144 Amongst the matters for which the RTA imposes requirements is the detail of any arrangement between a Council and a subcontractor like Pioneer. This encompasses RTA Form 403 on Conditions of Tendering (par [57] above); RTA Form 404 providing the General Conditions of Contract (par [59] above) and RTA Specification G.1O on Control of Traffic (par [70]-[75] above).
145 The RTA is the person for whom the work, relevant to the present proceedings, was undertaken. It selected the work and provided the whole of the funds. The process of selection of this particular project included an overview audit of the state of a number of roads, including of the relevant road. The work was to be conducted in accordance with procedures and specifications which it determined. Those specifications included requirements specifically addressed to ensuring the safety of drivers.
146 In terms of liability for non-feasance, it is pertinent to note that the primary responsibility for putting forward proposals is that of the Council.
147 The closest the RTA came to direct involvement with the temporary advisory signs required during works was set out in the evidence of the Roads Safety and Traffic Officer of the RTA which Wood CJ at CL summarised as follows:
"[232] He said that as a Road Safety and Traffic Officer, it fell to him to make decisions about regulatory road signs. He also agreed that there was a protocol for the receipt and processing of applications by Councils to alter such signs, including temporary regulatory speed signs during road works. This required, in his case, authorisation by the Road Safety & Traffic Manager at Parkes, following referral by him to that office."
148 The evidence on which his Honour based these findings was to the effect that the RTA authorised temporary speed zones, when requested to do so by a Council. It did so without inspection of the site, in the case of signposting associated with roadworks under a traffic control plan. In this case there was no such plan and no such request. The Council's relevant officer accepted, however, that it was the Council's responsibility to apply to the RTA for approval to impose a temporary speed sign. This confirmed the uncontradicted evidence of the relevant Roads Safety and Traffic Officer of the RTA that councils had responsibility for advisory signs because they had day to day knowledge of the roads. This must apply with particular force to the temporary signs required by road works undertaken by Council. Nevertheless, the general supervisory function with respect to regulatory speed signs is a matter relevant to the characterisation of the RTA's role in relation to the relevant risk of harm.
149 The liability of a road authority for non-feasance, established by Brodie v Singleton Shire Council, puts the RTA's position in a somewhat different light. It is not merely a funding body. It does determine what work is to be done. Nor is it a body which responds only to applications. It does concern itself with reviewing requirements, so that it is in a position to assess the need for a work. This enables it to have an input into the priority determination process. It does concern itself with technical specifications, the quality and the cost effectiveness of work. Questions of degree are involved.
150 The issue is one of control. In this regard it is pertinent to note that his Honour found at [218] that "typically", including for the 1996/1997 year, the funding process proceeds in the following way:
"- allocation by head office of the RTA of maintenance funding, on a regional basis, following approval of the State budget;
- allocation of the regional funds between each council in the region;
- requests by Mr Maloney of each council, within his sphere of responsibility, for proposals requiring an allocation of the funds available for that council, for the coming year;
- upon acceptance of the proposals, inclusion of the work in the approved work program embodied in the State Road Maintenance Agreement for the Council for that year."
151 This outline of the role of the RTA indicates the limited degree to which its role impinged on the physical elements that led to the risk of harm that is pertinent for present purposes. In circumstances where the RTA had the complete functions of a roads authority, it has been held it acquired a non-delegable duty. (Roads and Traffic Authority v Scroop (1998) 28 MVR 233). This precedent applies only to the Council in the present case, not to the RTA. The Council was the relevant roads authority. His Honour correctly found it to be liable in accordance with Scroop. The limited range of functions performed by the RTA on the facts here under consideration raises the issue of whether there was a relevant duty of care at all. If there was no such duty, the question of delegation does not arise.
152 I have set out in par [11] above, Wood CJ at CL's identification of the facts and matters which led him to conclude that the RTA had a duty of care. His Honour also found that the RTA's liability was wholly vicarious, because there was no "relevant act or omission for which the RTA was directly responsible" (see par [13] above). The reasons why that was so give rise to an issue as to whether there was a duty at all.
153 The elements identified by his Honour are those I have set out above. They involve the selection and funding of the project and a range of interventions designed to ensure the proper (including safe) execution of road projects. Nevertheless, the task of execution is not, in any respect, assumed by the RTA. That task is reposed in the Council and its subcontractors, if any, the latter being subject to detailed supervision by the Council's Superintendent. In accordance with this arrangement, it was a Council officer who attended the site on each day of the resealing works. No officer of the RTA did so or was expected or required to do so.
154 In my opinion, the terms and conditions of RTA funding, detailed as they are, do not involve the RTA in the actual carrying out of the work. The RTA is not an authority which does "carry out works or repairs" upon the road here in issue (cf Brodie at [150]). Nor did it have "physical control over the object or structure which is the source of the risk of harm" (Brodie at [103]; Barclay Oysters at [151]), i.e. the combination of gravel and the 75 km/h sign. The RTA did not "exercise control" over this "direct source of harm" to drivers (Barclay Oysters at [152]). The relationship between the RTA and the Plaintiff was "indirect … it [was] mediated by intervening conduct" on the part of the Council and Pioneer (Barclay Oysters at [153]; see also at [154]). The RTA did not, in my opinion, control in a sufficiently proximate way the "relevant risk of harm" (Barclay Oysters at [150] and [152]). The carrying out of the works extending to the installation of appropriate speed advisory signs in the circumstances, was not a matter which it ever had the capacity to control under the arrangements in place. The RTA did not, therefore, owe a duty of care to the Plaintiff with respect to the gravel and the 75 km/h sign.
155 The position of the RTA with respect to his Honour's alternative finding of breach based on the absence of a guardrail will be considered below.