Do council authorities owe a duty of care to road users for criminal acts of third parties?

Published 06 Nov 2015

This recent case provides some assistance, though not ground-breaking judicial guidance on the circumstances in which a road authority, or council may be held liable in negligence for a failure to prevent the criminal acts of third parties. The case of Rankin v Gosford City Council [2015] NSWSC 1354 (Rankin) provided the NSW Supreme Court with the opportunity to delve into this issue.

The facts of the case were relatively simply. Gosford City Council was responsible for the care and maintenance of Woy Woy Road, Kariong, NSW. During July 2008, the Council performed a slip repair on a portion of the road. Due to the road works, the council workers cordoned off the shoulder of the road with 60 hard plastic crash barriers.

At around 5:30am on 20 July 2008, Stephen Rankin (the plaintiff) rode his motorcycle when visibility was poor and whilst it was still dark. It was found that moments before the plaintiff reached the site, some unknown persons with malicious intent stretched four of the barriers across both lanes of the road, which had effectively constructed a trap. The plaintiff, unaware of the barriers collided into the barriers and the impact ejected him off his motorcycle. As a result of the impact and the collision, the plaintiff suffered from serious injuries.

The plaintiff commenced proceedings against the Council in negligence for failing to take adequate precautionary measures against the risk that vandals might move the plastic crash barriers across the road. The predominance of the arguments at trial focused on the question of the duty of care owed by Gosford Council to the plaintiff. More broadly and generally, the Court directed its attention upon the question of whether a Council defendant owed a duty of care to protect the general public against criminal acts of third parties.

Both parties were in agreement over the leading authority on this question, being the High Court case ; Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000]. In this case, the High Court held that a person does not ordinarily have a duty of care to protect another from the criminal acts of third parties over whom the person has no control. However, an exception to this rule would be where there was a special relationship between the person and the injured party such as an employer and employee or school and pupil.

The plaintiff in advancing its argument, relied upon a NSW Court of Appeal case, RTA v Refrigerated Roadways Pty Ltd [2009] (“Refrigerated Roadways). In that case, the Court of Appeal held 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, and as such it was held that road authorities owe a general duty to take reasonable care to protect a road user from the criminal actions of another.

However, in Rankin, the Court went to distinguish Refrigerated Roadways for its application in Rankin.  In Refrigerated Roadways, there was sufficient evidence that the RTA was well aware of the habit of criminals dropping heavy items from overpasses. In contrast, there was no evidence in Rankin suggesting that the Council was aware or had knowledge of instances of vandals using the barriers in such a manner.  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.

Therefore, the Court in Rankin concluded that the scope of the duty owed by Council to the plaintiff did not extend to taking reasonable care to forestall the criminal actions of third parties.’

Conclusion

Although, the decision in Rankin does not assist in extending the scope of duty owed by Council to protect a road user against the criminal acts of others, the case does assist in refining the circumstances in which a duty of care will be established. Such circumstances may include where there is:

  • a relationship between the plaintiff and defendant suggesting that such a duty should be imposed for policy reasons; or
  • circumstances that suggest a Council should have been in a position to protect a road user against the risk of harm that materialised in any event such as in Refrigerated Roadways. 

If you believe you have suffered injuries in a road or motor vehicle accident as a result of another party’s fault whether it was an individual, council authority, road authority or any potential third party, please contact us on 1800 004 878 and we will arrange a free consultation appointment for you at an office convenient to you in Sydney & NSW.