Council found not liable for the criminal act of a third party… again
On Tuesday, the NSW Court of Appeal delivered its decision of Rankin v Gosford City Council  NSWCA 249 and dismissed an appeal by a motorcyclist injured after colliding with road works barriers that had been moved on to the Woy Woy Road by unidentified persons. The incident occurred in the early hours of 20 July 2008, when no road works were being completed. The barriers had been moved after the Council workers left the site. Council was not aware of any prior similar incident.
Mr Rankin, the appellant, sought damages from the Council for negligence for the severe personal injuries he sustained as a result of the incident. At trial, the Supreme Court rejected the claim on the basis that Council's duty of care did not extend to taking steps to protect the appellant from the criminal acts of third parties.
The primary basis for the appeal related to the type of barrier used by the Council along the side of the road where road works ensued. The appellant argued that if the barriers could be moved, then it was reasonably foreseeable that irresponsible persons could shift them from their designated location such to create a risk of injury to road users. The appellant contended that concrete barriers should have been used or alternatively, if water filled barriers were acceptable, then the Council owed a duty to ensure the barriers were filled, rendering them unable to moved without mechanical assistance.
In defining the duty owed, the Court of Appeal found that the Council had the legal authority to control the road works and to impose controls over traffic to provide for safe use of the road during those works. This authority was being exercised by the Council and one relevant control put in place was the use of barriers on the side of the highway. Subject to the following considerations, the Court of Appeal found these circumstances would lead to a duty of care at general law:
- The purpose for having barriers in place, namely to protect workers from vehicles using the highway during the works;
- The risk which materialised, being the unauthorised movement of the barriers by persons unknown; and
- How the Civil Liability Act 2002 (NSW) (CLA) frames the duty.
As it was in control of the road works, the Court of Appeal held that the Council owed a duty to ensure that appropriate warnings were in place to notify users of the highway of the works and enforce a suitable driving speed through the area. There was no suggestion during the trial or the appeal that the Council failed to discharge this duty.
The Court of Appeal found that the risk that materialised was the movement of the barriers by unidentified persons. It then went on to consider the principles in Modbury Triangle Shopping Centre Pty Ltd v Anzil  HCA 61 to determine whether Council’s duty extended to take precautions to reduce that risk, noting it involved the criminal actions of third parties. Modbury was a claim by a plaintiff assaulted by 3 persons whilst crossing the unlit car park of the shopping centre he worked at during the evening. The shopping centre had turned off the car park lights, despite the centre still being utilised. The Court of Appeal noted the Modbury principal as:
“[t]he unpredictability of criminal behaviour is one of the reasons why, as a general rule, and in the absence of some special relationship, the law does not impose a duty to prevent harm to another from the criminal conduct of a third party, even if the risk of such harm is foreseeable.”
The appellant argued that he and the Council had a special relationship outside the principles of Modbury and referred to the decision of RTA v Refrigerated Roadways Pty Ltd  NSWCA 263 in support of this contention. In that matter, 4 persons (who had been convicted and sentenced) dropped a concrete block from the overpass on to a truck below, killing its driver. In RTA, whilst a duty was found to be owed, there was no evidence of breach as the Court of Appeal was unable to find that the RTA had acted in a way which failed to take reasonable care to prevent harm to the plaintiff, considering all of the evidence, including reports of similar incidents.
The Court of Appeal noted the following from RTA (at paragraph 138):
“ In Modbury at … , Hayne J explained how the duty of care of an employer to take reasonable care to prevent an employee being robbed could exist. He said: ‘The duty which the employer breaks in such a case is not a duty to control the conduct of others. It is a duty to provide a safe system of work and ensure that reasonable care is taken’ (footnote omitted). In a similar way, if it were the case that Mr Evans’ death resulted from a breach of a duty of care by the RTA, the duty breached would be the RTA’s general Brodie duty, not some exceptional duty to control the conduct of others. In my view, the duty of care that the RTA owes, of the type recognised by the High Court in Brodie, has a content that does not exclude taking reasonable care to protect a motorist from the criminal actions of another.”
In dismissing the appellant’s argument and reliance on the RTA decision, the Court of Appeal cited the following passage from RTA (at paragraph 131):
“… it is significant that the type of harm suffered by the plaintiff in Modbury Triangle is a type of harm that could arise only through criminal conduct. In that respect it differs from the type of harm suffered by Mr Evans in the present case. A motorist travelling on a freeway could suffer physical injury as a result of an object falling from an overhead bridge and striking his or her vehicle even if no criminal conduct was involved. Such an event could happen as a consequence of part of a poorly secured load on a truck going over the overbridge becoming loose and falling over the edge, or as a result of some object that a pedestrian on the bridge was carrying or playing with accidentally going over the edge.”
The Court of Appeal considered that the RTA decision did not further the appellant’s position on the basis that the duty owed by RTA was to take precautions to prevent material falling from the overpass to the roadway below, regardless of the reason for the fall (i.e. whether a deliberate criminal or an unintended act). It found that in the circumstances of the appellant’s incident, nothing but criminal actions could have led to the barriers being placed on the road. The Court of Appeal agreed with the conclusion of the trial judge and dismissed the appeal on the basis that the law did not impose a duty on the Council to take steps to avoid the creation of a risk by the criminal conduct of others.
Whilst breach and causation were not considered in the context of the appeal, the Court of Appeal discussed a factual issue in response to the appellant’s contention that the trial judge erred in finding that any duty of care which may be owed did not require the installation of concrete barriers. The appellant argued that the trial judge had not placed significant weight on the uncontested evidence of his expert Mr Duckworth that it was industry practice for concrete barriers to be utilised in remote areas. In dismissing this contention, the Court of Appeal noted that evidence had been led by a Council employee confirming that water filled barriers were the standard barriers used for works such as those being conducted in the incident location. Further it was practice not to fill the end barriers to limit the risk of injury to persons in vehicles which might collide with the barrier. The Court of Appeal noted Mr Duckworth’s lack of familiarity with the industry and found that the trial judge had correctly held his evidence to be unpersuasive.
Finally, the Court of Appeal noted that the Council had not contested the trial judge’s finding that section 45 of the CLA did not operate to protect the Council as there was no harm arising from a failure of Council to carry out the works, particularly in circumstances where there was no actual knowledge of the risk which materialised to cause the appellant’s injuries.
This case is another timely reminder of the importance to properly consider the scope of duty owed by a defendant in cases involving the criminal acts of third parties. Not only is it important to correctly categorise the “risk” that materialised to cause the harm suffered by a plaintiff, but also to identify whether the harm suffered in circumstances involving the criminal actions of third parties could have occurred but for that criminality.