A recent decision in the NSW Court of Appeal in Roads and Traffic Authority (NSW) v Refrigerated Roadways Pty Ltd (2009) 168 LGERA 357 provides an insight into the factors that a court will consider in determining whether a public body has breached its duty of care in the performance or non-performance of a particular public function.
An employee of Refrigerated Roadways Pty Limited (RR) sustained fatal injuries in August 1998 when, as he was driving on a freeway in the course of his employment as a truck driver, he was struck by a concrete block that had been thrown from an overhead bridge. The freeway was under the control of the Roads and Traffic Authority of NSW (RTA), a corporation created under the Transport Administration Act 1988 (NSW).
RR made payments to the deceased's widow pursuant to the Workers Compensation Act 1987 (NSW) and sought an indemnity from the RTA alleging that the deceased's death arose in circumstances that created a liability on the part of the RTA. RR succeeded in obtaining a judgment against the RTA in the District Court of NSW. The RTA appealed against the decision.
The issues on appeal were:
- whether the RTA's duty of care to ensure a safe environment for road users entailed taking "reasonable care" to protect road users from harm resulting from the criminal conduct of others, and
- if so, whether the RTA breached its duty by not installing a safety screen on the relevant bridge prior to the incident which caused the deceased's death, even in circumstances where the RTA actually foresaw harm occurring in the manner consistent with the facts of this matter.
As early as 1995, the RTA had foreshadowed that motorists might be killed or injured by people dropping objects from overhead bridges on freeways. The RTA received Commonwealth funding earmarked for safety and urgent minor works, however, the allocations did not specify what projects the funds should be applied to. Using a risk methodology developed in 1995, the RTA began installing safety screens on certain bridges in order of priority. Unfortunately, at the time of this incident, the installation of the screen at the relevant bridge was not yet completed to prevent the concrete block from being thrown onto the freeway, killing the deceased.
The Court noted that:
- a highway authority could be held liable in negligence for failing to exercise its statutory powers or exercising its statutory powers in a particular manner
- the issue of whether the RTA had breached its duty of care had to be considered by determining the anticipated, reasonable response to the risk of a vehicle on the freeway being struck by an object falling from an overhead bridge, and
- in considering whether the RTA had breached its duty, the Court must have regard to section 5B of the Civil Liability Act 2002 (NSW) (Act), which incorporates the reasonable person test derived from the common law.
Section 5B of the Act provides that:
- a person is not deemed to be negligent in failing to take precautions against a risk of harm unless it can be demonstrated that the risk was foreseeable, not insignificant and, in the circumstances, would have been taken by a reasonable person, and
- in deciding whether a reasonable person would have taken precautions against a risk of harm, the Court is to have regard to the following factors, which are not exhaustive:
- the probability that the harm would occur if care were not taken
- the likely seriousness of the harm
- the burden of taking precautions to avoid the risk of harm, and
- the social utility of the activity that creates the risk of harm.
The Court found that the RTA owed a duty of care to road users to take reasonable care to prevent harm to road users. This duty was not to control the conduct of others but simply to take reasonable care to prevent harm to road users. This included taking reasonable care to protect road users from harm resulting from the criminal conduct of others.
However, the RTA was found not to have breached this duty by not erecting the safety screens on the relevant bridge for the following reasons:
- in considering the section 5B factors of the Act, the RTA's response to the risk was not shown to be unreasonable
- negligence was alleged for failure of the RTA to embark on doing something rather than for not doing something they could have done
- the RTA appreciated in a reasonably timely manner the nature and magnitude of the risk to road users from objects being dropped off bridges. In the context of the overall number of accidents on NSW roads during 1998, incidents involving vehicles being struck by objects thrown from overpasses represented 0.4% of the total accidents and most incidents involved opportunistic rather than premeditated behaviour. Also, from 1990 to 1998 there had only been one death from such a cause in Australia
- the RTA adopted a rational system to assess the priorities for the erection of screens based on the magnitude of risk and having regard to the funds available to the RTA for such works, and
- the evidence did not establish any probability that a reasonable authority in the position of the RTA would have sought additional funding from the Commonwealth to ensure installation of a screen at the relevant bridge.
Section 42 of the Act would have been relevant to the determination of this case if RR alleged that the taking of reasonable care by the RTA would have required it to make a different general allocation of resources than that which it in fact made, but this was not alleged. Nevertheless, section 42(b) of the Act provides that in determining whether a public or other authority has a duty of care (except in matters which commenced before 6 December 2002), the general allocation of resources that are reasonably available to the Authority to exercise its functions is not open to challenge.
It is important that a public body is capable of presenting appropriate evidence when defending a claim which asserts it was negligent in the performance or non-performance of its public functions. In order to do so, it is prudent to keep a proper record of:
- the nature, frequency, quantity of risks identified by or reported to the public body, which are within the scope of its responsibility
- the costs and practicability of taking certain precautions or actions to alleviate or prevent the risks
- the budgetary limits of works, and
- the system and approach it adopts to deal with the various risks and priority of works.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.