This case provides judicial guidance on the circumstances in which a road authority defendant may be held liable in negligence for a failure to prevent the criminal acts of third parties.

Steven Rankin v Gosford City Council

Gosford City Council was responsible for the care and maintenance of Woy Woy Road, Kariong, NSW. During July 2008, Council performed a slip repair on part of the road. Workers cordoned off the shoulder of the road at the site of the road works with 60 hard plastic crash barriers.

In the early hours of 20 July 2008, Stephen Rankin (the plaintiff) rode his motorcycle through the site while it was still dark. Shortly before Stephen reached the site, persons unknown with obvious malicious intent, stretched four of the barriers across both lanes of the road, effectively creating a trap. Stephen came upon the barriers and was unable to avoid a collision. He was ejected from his motorcycle and suffered severe injuries.

Stephen brought a damages claim against Council, alleging it was negligent through failing to take adequate precautionary measures against the risk that vandals might move the barriers across the road.

Much of the argument at trial, and the primary focus of the judge’s decision, was the question of the duty of care owed by Council to Stephen. In particular, the judge focussed upon the question of whether Council owed a duty of care to protect the general public against criminal acts of third parties.

Both parties agreed that the leading authority on point was a previous case; Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000]. In this case, the High Court held that a person doesn’t ordinarily have a duty of care to protect another from the criminal acts of third parties over whom the person has no control, except where there was a special relationship between the defendant and the injured party such as employer and employee or school and pupil.

The plaintiff in the Modbury Triangle case relied upon a NSW Court of Appeal case, RTA v Refrigerated Roadways Pty Ltd [2009]. In this case, the Court of Appeal found the RTA liable for failing to take further precautions against the risk of persons throwing bricks from an overpass onto vehicles travelling on a highway below (a missile thrown from the overpass killed a motorist travelling below). Refrigerated Roadways submitted that road authorities owe a general duty to take reasonable care to protect a road user from the criminal actions of another.

The judge in the Steven Rankin v Gosford City Council case agreed with the defendant’s submissions. In particular, he considered that the authority in the Refrigerated Roadways case didn’t apply, noting that:

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There was a ‘great deal of evidence’ in the Refrigerated Roadways case that the RTA was well aware of the habit of criminals dropping heavy items from overpasses. There was no evidence in the Steven Rankin v Gosford City Council case of prior instances of vandals using the barriers in such a matter within Council’s area of responsibility. Indeed, none of the Council employees had even heard of such an incident occurring before elsewhere.
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It’s not uncommon for the RTA to be found liable in damages when rocks fall onto freeways through natural means, such as from cliffs. The judge who delivered the leading judgment in the Refrigerated Roadways case reasoned that it was appropriate to extend the RTA’s duty of care to include protection against criminals throwing rocks.

It was noted, by contrast, that it was impossible to envisage circumstances in which the barriers could be stretched across Woy Woy Road through natural means.

Similarly, the judge’s reasoning in the Refrigerated Roadways case was based on the recognition that items can innocently fall from overpasses, for example, when accidently dropped by a person or falling from an uncovered load. This logic was again inapplicable in the circumstances of Steven Rankin v Gosford City Council, given it was inconceivable that a person could innocently or accidentally stretch four of the barriers across the road.

The judge in the Steven Rankin v Gosford City Council case therefore concluded:
‘In short, I do not consider that the scope of the duty owed by Council to the plaintiff extended to taking reasonable care to forestall the criminal actions of third parties.’

In the event that he was incorrect on the issue of duty of care, the judge also found that the plaintiff had failed to establish that Council breached its putative duty of care, and failed to establish either limb of the causation test set out in s5D of the Civil Liability Act 2002 (NSW).

Conclusion

The decision in Steven Rankin v Gosford City Council reaffirms the primary position regarding duties of care to protect against the criminal acts of others. The judge moved that road authorities don’t owe a general duty of care to motorists to protect against criminal acts. Instead, the circumstances in which a duty of care will be established remain highly circumscribed and likely dependent upon the existence of either:

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a relationship between the plaintiff and defendant suggesting that such a duty should be imposed for policy reasons; or

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circumstances that suggest a Council should protect against the risk of harm that materialised in any event, because that risk can materialise in the absence of criminal conduct.

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