Supreme Court New South Wales

• Medium Neutral Citation: Rankin v Gosford City Council [2014] NSWSC 1354
• Hearing dates: 9 - 13 December 2013
• Decision date: 02 October 2014
• Jurisdiction: Common Law
• Before: Button J

Decision

(1) Judgment for the defendant.

(2) The plaintiff is to pay the cost of the defendant in the proceedings.

• Catchwords: TORTS - negligence - motorcyclist injured after colliding with traffic barriers placed across roadway by malefactors - whether council undertaking road works is liable for injuries - whether council protected by special non-feasance protection for roads authorities in s 45 of Civil Liability Act - whether council owed plaintiff a duty of care for criminal acts of others
• Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B, 5C, 5D, 5E, 45; Roads Act 1993 (NSW), s 7(4); Transport Administration Act 1988 (NSW) s 45E
• Cases Cited: Benic v State of NSW [2010] NSWSC 1039; Brodie v Singleton Shire Council (2001) 206 CLR 512; Council of the Shire of Wyong v Shirt and Others (1979) 146 CLR 40; Covalon Pty Ltd v Bellingen Shire Council [2008] NSWCA 355; Kavanagh v Ioannou [2002] NSWCA 2; Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254; North Sydney Council v Roman [2007] NSWCA 27; Pettigrew v Wentworth Shire Council [2012] NSWSC 624; Roads and Traffic Authority of New South Wales v Dederer (2007) HCA 42; 234 CLR 330; Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Ltd [2009] NSWCA 263; Sullivan v Moody (2001) 207 CLR 562
• Category: Principal judgment
• Parties: Steven Rankin (plaintiff); Gosford City Council (defendant)
• Representation: Counsel; R S McIlwaine SC, R E Quickenden (plaintiff); J Guihot (defendant); Solicitors: Michael Kerridge & Co (plaintiff); Moray & Agnew (defendant)
• File Number(s): 2011/234040
• Publication restriction: Nil

Judgment

1 In the early hours of the morning of Sunday 20 July 2008, unknown malefactors moved traffic barriers that had been hired by Gosford City Council (the Council) for use in road works being undertaken on Woy Woy Road. At about 5:30 am Mr Steven Rankin (the plaintiff) collided with those barriers while riding his motorbike in a northerly direction along Woy Woy Road, and suffered serious injuries as a result.

2 The issue for determination by me is whether the Council is liable in negligence for the injuries suffered by the plaintiff.

Undisputed facts

3 A number of facts are not in dispute, and can be stated chronologically.

4 The plaintiff was born in 1967, and was aged 41 years at the time of the accident.

5 At the time of the accident, the plaintiff lived in Woy Woy Bay and worked in Frenchs Forest. He rode his motorcycle, a 650 cc BMW, to and from work each day.

6 In July 2008, the Council began work on a stretch of Woy Woy Road between Woy Woy Bay and Kariong. Photographs that became Exhibits L and M show that it is a generally flat road that curves through bushland.

7 On 3 July 2008, Coates Hire delivered 60 "Triton TL2 crash barriers" to the site pursuant to a hire agreement with the Council (Exhibit A). Triton TL2 crash barriers are hollow, plastic barriers designed to be filled with water once placed into position. Each barrier can be connected to the adjacent barriers with pins and steel cable (see annexure B to the statement of Mr Wayne Duckworth, a witness called by the plaintiff to give expert evidence, and which became Exhibit P).

8 Mr David Marsh, a Council employee, was charged with positioning the empty barriers and road signs in accordance with a traffic control plan that had been prepared by Mr Andrew Baxter, the Road Construction Overseer for the Council (Exhibit C). The relevant stretch of Woy Woy Road had one lane travelling north and one lane travelling south. For the duration of the road works, the speed limit for vehicles travelling north was 60 km/h.

9 On 4 July 2008, a Council water cart attended the site in order to fill the barriers with water. Which barriers (if any) were filled, and whether they remained filled up until the time of the collision, is a matter of dispute between the parties. I will consider the evidence on this issue in more detail later in this judgment.

10 On Saturday 19 July 2008, loads of sandstone were delivered to the site (Exhibit S). Aside from this delivery, it seems that no workers attended the site between the evening of Friday 18 July 2008 and the morning of Monday 21 July 2008. Nothing seemed to be amiss when they departed the site on the Friday.

11 On the evening of Saturday 19 July 2008, the plaintiff attended a church service at Oxford Falls. At around 10 pm the plaintiff returned home on his motorcycle, passing the road works as he travelled south along Woy Woy Road. Nothing seemed to be amiss as he did so.

12 In the early morning of Sunday 20 July 2008, the plaintiff rode his motorcycle north along Woy Woy Road on his way to church at Oxford Falls. After rounding a curve to the left, the plaintiff's motorcycle collided with barriers that had been moved to obstruct both lanes of traffic. He became separated from his motorcycle, was catapulted over the barriers, and suffered serious injuries, particularly to his right leg. No-one witnessed the accident, and the plaintiff's recollection of what occurred after he first saw the barriers across the road is limited.

13 Between 5:15 and 5:30 am Ms Lyn Sehlin was driving in a northerly direction along Woy Woy Road. She saw the barriers across the road and shortly thereafter the plaintiff lying on the road, and stopped to assist him. Soon afterwards another passer-by stopped and called an ambulance.

14 At 6:08 am an ambulance arrived, and the plaintiff was conveyed to Gosford Hospital. The fire brigade and police also attended the scene that morning. Investigating officer Senior Constable Murray (who could not be located to give evidence in these proceedings) recorded in his notebook (Exhibit D):

Coates Approved crash

Barrier

131552

Empty x 4 No water

inside

15 On Monday 21 July 2008, Council workers returned to the site and work continued. There was nothing to indicate that an accident had occurred. It appears that the Council was not aware of the collision suffered by the plaintiff until months later, when it received a letter from the solicitor for the plaintiff on 5 March 2009.

16 On Tuesday 22 July 2008, Mr Mark Saundercock, pastor at the plaintiff's Oxford Falls church, and Mr Peter Crean, another church member, visited the plaintiff in Gosford Hospital. At approximately 5:20pm on that day Mr Saundercock and Mr Crean went to the site of the accident, and took a number of photographs (which are attached to Exhibit O).

17 The COPS report with regard to the accident (Exhibit 1) records that on 8 August 2008 police attended the site. Council workers, including Mr Lyle Sherwood, the ganger for the Council, have no recollection of police visiting the site on that day.

18 The road works were completed in September 2008.

19 In November 2009 the plaintiff returned to work. In March 2010 he moved from Woy Woy Bay to Dee Why, and in March 2011 he moved to North Curl Curl. Since November 2009 the plaintiff has used a combination of taxis, buses and trains to get to his place of work in Frenchs Forest. Recently he has relied upon taxis rather than buses.

Resolution of relevant disputed facts

20 I turn to consider a number of facts that were in dispute between the parties.

(i) The state of the barriers

21 It was not disputed that the malefactors could not have moved the barriers across the road if they were full of water, due to their resultant weight. The real dispute about the barriers was: at the time when the workers left the site on the Friday afternoon, were some or all of them full of water, or empty?

22 A great deal of evidence was placed before me about the state of the barriers generally, and at the time of the accident in particular.

23 The manufacturer's "Installation/Maintenance" brochure was annexed to the affidavit of Mr Duckworth, which as I have said became Exhibit P in the proceedings. Under the subheading "Deployment and Retrieval", the brochure relevantly provided:

...

4. Align the sections according to the specified configuration and layout in the traffic control plan.

...

5. Completely fill each section with water.

WARNING!

Sections must be filled with water to ensure proper crash performance.

6. Place caps in fill holes.

7. If an end treatment is specified for the layout, follow the instructions provided by the manufacturer and install it at this time. If the TRITON BARRIER is acting as its own end treatment: ... For TL-2 (70km/h [45 mph]) installations, the first barrier section must be empty and the pin must be removed from the exposed end.

...

24 A number of Council employees gave evidence about the deployment and maintenance of the barriers during the course of the road works. Mr Marsh, Quality Assurance Officer for the Council, deposed in his affidavit of 16 July 2013 (Exhibit 2):

When the traffic barriers were put in place I estimate there would have been at least 25 barriers along the length of the works, given that I estimate each barrier was around 2.4 meters in length.

The two barriers at the end of the barricade were angled towards the side of the road to signify the end of the works and to minimise the risk of them being struck by a vehicle.

The traffic barriers were connected by using a steel cable extending the entire length of the barricade. Each adjoining barrier was joined by a pin so that the barriers were linked.

The traffic barriers were made of hard industrial plastic which could be filled with water.

A water truck came to the site. I arranged for water to be pumped into all of the traffic barriers forming the straight length of the barricade. It takes about ten to fifteen minutes to fill a barricade with water. [T]he two end barriers which were tapered towards the edge of the road were not filled with water. This was the way it was usually done on every [Council] site.

...

To my knowledge all of the barriers on site at the works had fully functioning valves. The valves are around four inches in diameter.

25 During cross examination of Mr Marsh by senior counsel for the plaintiff, the following exchanges occurred (at TT 136.24 - 137.11):

Q. If the traffic barriers were found, at least a number of them, to be empty on 20 July, that is later in that month, would you be able to explain how that could be?

...

A. Could be any number of reasons. Someone could have come along, opened one of the taps and drained it. It could have been hit by a car or whatever and was cracked and it leaked out.

Q. And could a reason be that during the course of the works prior to 20 July the barriers were deliberately drained by council workers in order to move them to allow greater access to the site?

A. Don't think so, because where they were placed and the work that was being done and for their own safety, the only ones they would have moved were the two on either end just to provide access in behind.

26 Mr Baxter, the Council's Road Construction Overseer, deposed in his evidentiary statement of 16 July 2013 (Exhibit 7) that he "regularly inspected the traffic signs and the traffic barriers."

27 The Council prepared a statement in answer to interrogatories on 12 November 2013, and it became Exhibit B in the proceedings. In response to interrogatories concerning Mr Baxter's evidentiary statement, it was said that these inspections "were carried out by driving through the job site from one direction and then back again from the other direction", and occurred "daily".

28 In contrast, during cross-examination Mr Baxter gave evidence that he checked whether the barriers were full of water "probably once a week" (TT 206.21).

29 Extracts from Mr Baxter's work diary became Exhibit T in the proceedings. On the page marked Thursday 3 July 2008 the following entry is recorded:

D. Marsh - set up the water filled barriers at the Kariong slip, set up extra charcoal on the barriers.

30 On the page marked Friday 4 July 2008 the following entry is recorded:

Kariong Slip repair - The water cart filled the TL2 barriers with water [sic]

31 Mr Lyle Sherwood, a ganger for the Council, relevantly deposed in his evidentiary statement of 16 July 2013 (Exhibit 6):

As usual the two barriers at the end of the barricade facing oncoming traffic had not been filled with water and were placed away from the road and angled towards the work area. ...

Whenever I arrived at the site for work I checked to see everything was where it was meant to be, including the traffic control devices and Council property.

I did not check to see if the middle barriers that had been filled with water still had water in them. I was aware that the barriers could leak but if they did it would have been visible and we could call out the water truck to fill them back up again. If I arranged for a water truck to bring water to the work site I would record it in my diary.

At the end of each work day I conducted a walk-through of the work site. ... I do not recall any part of the barricade including the two end barriers being moved at any stage during the works. There was no need to move them as there was sufficient room.

...

32 During cross examination of Mr Sherwood the following exchanges took place (at TT 168.28 - 174.12):

Q. If you were there on the 21st [of July 2008], was it your function to check whether the barriers were filled with water?

A. Well, we didn't see there was anything moved. I don't check them every day, you don't check them. I think Andy drives through there and checks them, but sometimes I have washed me hands in there and I have used the water, because there is no water on site.

...

Q. Are you saying that you didn't check whether the barriers were full of water on a daily basis?

A. No, not on a daily basis, no.

Q. How often do you say that you checked that the barriers were full of water?

A. Only if they had been leaking, I'd check them. You can tell when they have been leaking because there would be water on the road.

...

Q. To your knowledge, at any time prior to 20 July 2008, were the barriers emptied?

A. No they weren't emptied. If they were emptied, you would notice the water on the ground for a start. A lot of water comes out of those barriers.

33 Later, at TT 191.36- 191.43:

Q. Are you saying that when the work started you checked each and every barrier to see if it was filled with water?

A. When we first started, yes.

Q. Each and every one? Each and every one?

A. Not each and every one then. When I seen there was water in there, the first few or whatever, it has got to be full of water, and I was told they were full of water, they are full of water.

34 A number of people who attended the scene directly after the accident occurred gave evidence about the state of the road. Ms Sehlin, who was the first person on the scene after the accident, gave the following evidence in her statement of 11 May 2013, which became Exhibit N:

The weather at the time was fine and dry. There was no water on the road.

I leaned on several barriers on the roadway and they were all empty. I was easily able to push them. They barriers were all joined together at the time, so people had manually moved them into the position they were in. I cannot remember exactly how many barriers there were on the road but at least four and they were covering both sides of the road. I cannot say whether the other barriers that were not on the road (they were in position down the side of the roadway such that they did not obstruct traffic) were empty or full because I did not check them. I only checked the barriers that were actually obstructing the road.

35 During cross-examination by counsel for the Council she elaborated on her evidence that there was no water on the road. She gave evidence that the road in the general vicinity of where the plaintiff was lying was not wet. She also said (at TT 58.26-34):

Well I also walked around the barriers and there was no water on the road, at one point in time he asked me to get something from his saddle bags and his bike which are up on the side of the road. I went down through the ditch and up a couple of times and back to him, up to his bike, and at no time were my feet getting wet.

36 The following exchange also took place during cross-examination (at TT 58.40-47):

Q. Apart from looking to see what was on the ground in the vicinity of the motor cycle rider you didn't have in mind any specific inspection of water, or the absence of water, did you?

A. Well at one point when I leaned against the barriers and they appeared to be emptied, I kind of had a quick look around to see if there was water on the road from them, if someone else had possibly hit them and emptied them or what had emptied them, and there was no water on the road. I didn't do a full inspection but I did a look around.

37 The COPS report, created on 20 July 2008 at 10:35 am, states:

... It is to be noted that there is no street lighting present at the scene of the collision and visibility was poor, [t]he surface of the road was wet and it is not unreasonable for a driver/ rider to expect the roadway to be clear. ...

38 As I have said, Mr Saundercock and Mr Crean visited the scene on the afternoon of Tuesday 22 July 2008, two days after the accident. In his statement of 13 May 2013 (Exhibit R), Mr Crean stated:

I inspected all of the barriers when we attended the scene on 22 July 2008 as I suspected that they may have been empty. I had previously worked with similar plastic road barriers which were designed to be filled with water.

...

In light of my experience ... I was very surprised to see empty barriers of this sort in a relatively remote area of road with no supervision. As a result, I took a particular interest in checking the barriers. I noticed that none of them had any water in them. There were about 8 to 12 of them in total, from memory.

I noticed one of them was missing the valve at the bottom of it which meant that it could not have been filled in any event without the repair of that valve.

I also noticed that one of the barriers had a lot of rubbish in the bottom of it. You could see this from looking in from the top of the barrier. There were bottles and papers. I commented on this to Mark Saundercock and he took a photo of the barrier with the rubbish in it. The paper rubbish looked very dry from which I concluded that the barrier had not contained water for some time.

I estimate that the rubbish was as high as about 30cm or one foot from the bottom of the barrier, which led me to believe it had been used as a rubbish bin for some time.

39 During cross examination, Mr Crean recalled that the barrier with rubbish inside was "either ... the second or the third one along the line" (at TT 124.48). He also stated that he did not see any water on the road on that day (at TT 125).

40 The submission of the plaintiff was that I would find on the balance of probabilities that the barriers across the road were empty on the Friday afternoon, and that I would reject the proposition that they were first emptied by the malefactors before being moved.

41 The submission of the Council was that I would find that all of the barriers were filled with water (save for the ones that occupied the end positions, in accordance with the manufacturer's instructions and Council practice) when the workers left, and it was the malefactors who emptied the barriers before moving them.

42 I accept that the evidence points both ways to a degree and supports both positions. Nevertheless, I have come to the view on the balance of probabilities that the barriers that were moved on the Sunday morning were already empty. That finding has the following bases.

43 First, Ms Sehlin saw no sign of water in the vicinity of the barriers. Cross-examination did not substantially weaken that position.

44 Secondly, two days after the accident Mr Crean saw dry rubbish in one of the barriers.

45 Thirdly, while I am mindful of the limitations of drawing inferences from photographs, nevertheless the rubbish shown in the photograph labelled "A14" attached to Exhibit O appears to be dry to me.

46 Fourthly, I accept that Mr Crean saw a barrier that had no valve at all. Attending the scene two days after his friend had been badly injured, I consider that that observation would have particularly impressed him.

47 Fifthly, the Council officers were being asked to recall events that had occurred years before. Indeed, the Council did not become aware of the accident on 20 July 2008 until many months later. The statements of Mr Marsh, Mr Baxter and Mr Sherwood were all dated 16 July 2013. Whilst I certainly do not find that they were dishonest in their recollections, objectively they were recorded quite some time after the events in question. And it is noteworthy that the evidence of Mr Baxter in cross-examination was not consistent with the answers to interrogatories.

48 Sixthly, I accept that some at least of the barriers were filled with water by the water cart on 4 July 2008, as reflected in the works diary. But it is unclear whether every barrier was appropriately filled, or whether the water stayed in those filled barriers.

49 Seventhly, the evidence establishes that the water level indicators on the barriers were not operating correctly. That, combined with the reasonably infrequent inspection of the barriers, leaves open the possibility that some barriers had not been filled, or that some were cracked and leaked.

50 Eighthly, it is true that the COPS report with regard to 20 July 2008 describes the road as "wet". But that could have been the case by the time that the police arrived. Or it could have been the result of the police attending on a winter's morning. Furthermore, no person was able to be cross-examined as the author or source of that document to test the accuracy of that observation. If it be the case that they are in truth inconsistent, I prefer the evidence of Ms Sehlin to the contents of the COPS entry.

51 Ninthly, (admittedly a small matter) I consider it somewhat more likely that the malefactors took advantage of barriers that were already empty than that they tarried for a period of several minutes to empty the barriers before moving them.

52 Tenthly, the cross-examination, by way of reference to photographic exhibits, of several witnesses with regard to the position of the barriers at various times throughout the road works relative to the road markings did not establish conclusively that the barriers were being moved throughout the works, and were able to be so moved because more than the two end barriers were empty. Nevertheless, that material, whilst not establishing that proposition, gave rise to its possibility.

53 In short, I find on the balance of probabilities that all of the barriers placed across the road were empty at the time the malefactors arrived; that the barriers were not emptied by them upon their arrival; and that those barriers had been left in that state when the Council workers departed the site on the Friday afternoon.

(ii) Some specific aspects of the accident

54 There was conflicting evidence before me regarding the speed at which the plaintiff's motorcycle was travelling when it collided with the barriers, and the position of the barriers relative to the corner. I consider that it is not strictly necessary to determine these questions of fact in order to come to a determination on the question of negligence, particularly given that the Council did not, at the end of the hearing, rely upon contributory negligence. In written and oral final submissions, counsel for the Council did not refer to that issue.

55 As a result, I shall deal with these matters shortly.

56 The plaintiff gave evidence in these proceedings that as he approached the curve prior to colliding with the barriers he was travelling at 50 km/h. However the ambulance report (Exhibit G) and the COPS report (Exhibit 1) record (on the basis presumably of what their authors had been told) that the plaintiff was travelling at 80 km/h. In a prior statement shown to the plaintiff in the witness box, the plaintiff deposed:

... I was riding a little under 80 kilometres an hour and then slowed to lean into a left hand bend.

57 During cross-examination, the plaintiff disagreed with the proposition that he was travelling at more than 50 km/h when he collided with the barriers.

58 The plaintiff was an experienced motorcyclist. There was nothing to suggest that he was in a hurry to get to church. Nor did the Council place before me material to suggest that he was in the habit of riding at excessive speeds.

59 I find on the balance of probabilities that the plaintiff was travelling at 80 km/h as he approached the bend, and thereafter slowed to somewhere between 50 and 60 km/h.

60 The area of the road works was signposted with a speed limit of 60 km/h. I interpolate to say, before leaving this resolution of a disputed fact, that I do not find that the plaintiff was travelling at an excessive speed. Nor do I consider that his manner or speed of riding caused or contributed to the collision in any way.

61 As for the question of the distance between the curve and the position of the barriers when they were placed across the road, again that question played no role in the issues as refined by the parties by the end of the hearing. It therefore suffices for me to say that I accept the evidence that the measurements undertaken by the police show that the barriers were in a position 60 to 70 metres from the curve.

62 Having determined the facts in dispute, I shall now turn to the application of legal principle to the determined and undisputed facts. In accordance with the submissions of the parties, I shall first consider s 45 of the Civil Liability Act 2002 (NSW) (the Act).

Is the Council protected by s 45 of the Act?

(i) Submissions of the Council

63 The Council submitted that it was protected by the statutory immunity contained in s 45 of the Act. That section is as follows:

45 Special non-feasance protection for roads authorities

(1) A roads authority is not liable in proceedings for civil liability to which this Part applies for harm arising from a failure of the authority to carry out road work, or to consider carrying out road work, unless at the time of the alleged failure the authority had actual knowledge of the particular risk the materialisation of which resulted in the harm.

(2) This section does not operate:

(a) to create a duty of care in respect of a risk merely because a roads authority has actual knowledge of the risk, or

(b) to affect any standard of care that would otherwise be applicable in respect of a risk.

(3) In this section:

carry out road work means carry out any activity in connection with the construction, erection, installation, maintenance, inspection, repair, removal or replacement of a road work within the meaning of the Roads Act 1993.

roads authority has the same meaning as in the Roads Act 1993.

64 Section 7(4) of the Roads Act 1993 (NSW) states:

(4) The council of a local government area is the roads authority for all public roads within the area, other than:

(a) any freeway or Crown road, and

(b) any public road for which some other public authority is declared by the regulations to be the roads authority.

65 The Dictionary to the Roads Act 1993 relevantly provides:

roads authority means a person or body that is, by or under this Act, declared to be a roads authority and, in relation to a particular public road, means the roads authority for that road.

road work includes any kind of work, building or structure (such as a roadway, footway, bridge, tunnel, road-ferry, rest area, transitway station or service centre or rail infrastructure) that is constructed, installed or relocated on or in the vicinity of a road for the purpose of facilitating the use of the road as a road, the regulation of traffic on the road or the carriage of utility services across the road, but does not include a traffic control facility, and carry out road work includes carry out any activity in connection with the construction, erection, installation, maintenance, repair, removal or replacement of a road work.

...

traffic control facility has the same meaning as it has in Part 6 of the Transport Administration Act 1988, and carry out traffic control work includes carry out any activity in connection with the construction, erection, installation, maintenance, repair, removal or replacement of a traffic control facility.

66 The Transport Administration Act 1988 (NSW) s 45E(1) states:

traffic control facility means:

(a) traffic control lights on roads or road related areas, and equipment used in connection with traffic control lights, or

(b) any sign, marking, structure or device containing or relating to a requirement or direction, contravention of which is an offence arising under:

(i) this Act or the regulations, or

(ii) any other Act, regulation or by-law prescribed for the purposes of this subparagraph, or

(c) any other sign, marking, structure or device that is intended to promote safe or orderly traffic movement on roads or road related areas or to warn, advise or inform the drivers of vehicles, or pedestrians, of any matter or thing in relation to vehicular or pedestrian traffic or road conditions or hazards, or

(d) any bridge or subway or other facility for use by pedestrians over, across, under or alongside a road or road related area, or

(e) any other thing prescribed as a traffic control facility by the regulations.

67 Founded upon the interlacing statutory structure set out above, the Council submitted that, pursuant to s 7(4) of the Roads Act, the Council was a "roads authority" with respect to Woy Woy Road. The Council submitted that it was "carrying out road work" on the relevant stretch of Woy Woy Road. It submitted that the barriers are not "traffic control facilities" within the meaning of s 45E(1) of the Transport Administration Act, as they were there primarily to protect workers carrying out the road works, and that the deployment of the barriers was therefore part of the "road work".

68 The Council submitted that each allegation of negligence on its part contained in the pleadings of the plaintiff concerned a failure to do something, and therefore could be classified as an allegation of non-feasance. For instance, it was submitted that there was no suggestion that the Council placed the barriers across the roadway. Rather the allegation in a nutshell was that the plaintiff failed to prevent others from doing so, either by failing to deploy concrete barriers or by failing to keep the plastic barriers full of water.

69 It was submitted that it follows, pursuant to s 45 of the Act, that no liability can arise against the Council unless it could be shown that "at the time of the alleged failure [the Council] had actual knowledge of the particular risk the materialisation of which resulted in the harm". Counsel for the Council invited my attention to North Sydney Council v Roman [2007] NSWCA 27 and Covalon Pty Ltd v Bellingen Shire Council [2008] NSWCA 355.

70 The Council submitted that there is no evidence that any person within the Council had actual knowledge of the risk that the barriers could be moved across the road and pose a danger to motorists. Accordingly, it was submitted that the plaintiff has not established an exception to the statutory immunity in s 45, and the Council is therefore not liable to the plaintiff.

(ii) Submissions of the plaintiff

71 The plaintiff made two submissions with regard to the application of the statutory immunity.

72 First, it was submitted that the barriers were a "traffic control facility" as defined in s 45E(1) of the Traffic Administration Act and therefore s 45 of the Act has no application. It was submitted that the barriers simply provided protection for workers; they were not otherwise related to the road works been undertaken. Senior counsel for the plaintiff rejected the suggestion that deployment of the barriers was "activity in connection with" road works.

73 Secondly, it was submitted that this case does not concern a failure to carry out or consider carrying out road works. The Council was in fact actively carrying out road works on the relevant stretch of Woy Woy Road. Senior counsel submitted that the allegation of the plaintiff is not that the Council negligently failed to perform road works at all; rather, it is that the Council did indeed perform road works, but did so negligently. It follows that this is not a case of "non-feasance", it is a case of misfeasance, and therefore the statutory immunity does not apply.

(iii) Determination

74 If the barriers were traffic control facilities, then s 45 of the Act would have no application to a dispute about their deployment. However, I accept as a preliminary matter that they were not traffic control facilities, and therefore the section has the potential to apply. That is because, reading s 45 of the Act along with the definitions in the Roads Act and the Transport Administration Act as an integrated whole, I consider that the legislation is seeking to exclude such things as fixed metal road signs by the side of the road, temporary electronic signs, and permanent scrolling signs affixed above freeways. Whilst it is true that one of the purposes of the barriers was to "promote safe ... traffic movement on roads", that phrase must be read within the context of the subsection as a whole, the definition of "traffic control facilities" within s 45E(1) of the Transport Administration Act as a whole, and the statutory structure as a whole.

75 However, although I accept the submission of the Council on that preliminary point, I accept the submission of the plaintiff about the nature of s 45 of the Act. That is so for a number of reasons.

76 First, the section states that the immunity applies in situations where harm arises from a 'failure of the authority to carry out road work, or to consider carrying out road work'. That is not the case here: the Council was in fact conducting road works on Woy Woy Road.

77 Secondly, the title of the provision uses the word "non-feasance". Although the distinction between non-feasance and misfeasance can in some circumstances be elusive, at a very basic level it could be said that misfeasance is fulfilling a duty or performing an act inadequately or improperly, and non-feasance is not fulfilling a duty or performing an act at all. The use of the word "non-feasance" within the heading of the section supports the interpretation that the section does not apply in circumstances where the roads authority is in fact carrying out roadwork, as the Council was here.

78 Thirdly, this interpretation of the statute is supported by the purpose that underpinned the introduction of the provision. Section 45 of the Act was introduced following the decision of the High Court of Australia in Brodie v Singleton Shire Council (2001) 206 CLR 512, which in effect did away with the common law "highway immunity". Basten JA sets out, with respect, a very useful discussion of the decision in Brodie v Singleton Shire Council and the legislative response to that decision in his Honour's judgment in North Sydney Council v Roman at [150] - [152].

79 The Hon Michael Egan MLC, in the course of delivering the second reading speech with regard to the Civil Liability Amendment (Personal Responsibility) Bill, which inserted s 45 into the Act, said the following (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 19 November 2002 at 6899):

A "roads authority" that has not exercised a discretionary power to mend, for example, a pothole will not be liable unless it actually knew about the particular risk that led to the injury. This will reintroduce a protection for certain "non-feasance" on the part of roads authorities.

80 In short, the terms of the statute and its interpretative materials strongly support the proposition that the legislation confers immunity on roads authorities for failing to undertake road works, not for doing so negligently, as is pleaded here.

81 Fourthly, my approach is consistent with the interpretation of the statute by the NSW Court of Appeal and at first instance. The two cases to which counsel for the Council invited my attention involved a total failure to act on the part of the relevant authorities. Notably, the leading case of North Sydney Council v Roman involved a failure to fill in a pothole at all, not a failure to do so properly. Colavon v Billingen Shire Council involved a failure to install guideposts at all (which were ultimately determined to be "traffic control facilities" in any event). And in Pettigrew v Wentworth Shire Council [2012] NSWSC 624 Hoeben JA (as his Honour then was) said at [132]:

Section 45 [of the Act] relates to non-feasance by a road authority. The negligence in this case related to misfeasance in that the defendant created the harm and did not warn road users of it. Section 45 has no application to the facts of this case.

82 Finally, I was not invited to any case in which an omission on the part of a roads authority within the context of road works that were actually being conducted was protected by s 45.

83 In short, I do not consider that the Council is protected by s 45 of the Act. I therefore turn to consider the legal ingredients of the claim of the plaintiff in negligence, founded upon the common law as modified by the Act.

Was the Council negligent?

(i) Duty of care

84 The first question to determine is whether the Council owed the plaintiff a duty of care.

85 Neither party submitted that any provision of the Act was relevant to the determination of whether a duty of care existed. Nor was it submitted that this was a novel case.

86 The plaintiff simply submitted that, in accordance with the decision of the NSW Court of Appeal in Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Ltd [2009] NSWCA 263, road authorities have a duty to take reasonable care to protect a road user from the criminal actions of another. In short, that decision concerned the liability of the Roads and Traffic Authority (the RTA) for the death of a truck driver after his truck was struck by a lump of concrete thrown by a third person from an overpass onto the freeway below.

87 In contrast, the Council accepted that RTA v Refrigerated Roadways recognised a limited exception to the general rule established in Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 that a person does not have a duty of care with respect to the criminal actions of third parties over whom the person has no control. However, the Council submitted that the exception does not apply to the facts of this case, for a number of reasons.

88 First, in this case there was no evidence that traffic barriers had been interfered with on prior occasions. The Council was not aware of the risk that traffic barriers would be moved to obstruct traffic, either generally or with regard to the Woy Woy Road worksite in particular. Secondly, as in Modbury Triangle Shopping Centre v Anzil, the type of harm suffered by the plaintiff here could only arise from criminal conduct. The Council submitted that the extension of liability for the acts of third parties by way of the finding of a duty of care should not occur when the act of the third party under consideration is a wholly criminal one.

89 As well as that, the Council submitted that the fact that there had been no prior incidents in which barriers had been moved to obstruct traffic meant that there was no foreseeable risk of injury. It submitted that it was well established that foreseeability is a necessary condition for the establishment of the existence of a duty of care, and invited my attention to the decision of Sullivan v Moody (2001) 207 CLR 562 at [42].

90 The Council submitted that the facts of this case were more analogous to those in Kavanagh v Ioannou [2002] NSWCA 2.

91 Turning to my determination with regard to the scope of any duty of care, it is possible to formulate a duty of care at a level of great generality, about which there could be no reasonable dispute. For example, it could not be gainsaid that the Council owed road users generally a duty to conduct road works with reasonable care: Brodie v Singleton Shire Council. However, I do not consider that to state the duty in that way does so with sufficient specificity, or with a sufficient connection to the facts of this case. In particular, I do not consider that stating the duty in that way adequately reflects that what is being asserted by the plaintiff against the Council is that the Council is liable to the plaintiff because of the criminal actions of others that severely injured the plaintiff.

92 In Modbury Triangle Shopping Centre v Anzil, a plurality of the High Court of Australia (Kirby J dissenting) determined that, except in special circumstances, a person does not owe a duty of care to a second person with regard to the criminal acts of a third person: at 265 [26] per Gleeson CJ, at 270 per Gaudron J; at 291-292 [109], 293-4 [117] per Hayne J; at 299-300 [140]-[141] per Callinan J.

93 In that case, an employee of a tenant of a shopping centre was robbed and severely injured when leaving the shop in which he worked after the lights of the car park had been extinguished. The defendant was the occupier of the car park, and had control over the time when the lights would be extinguished each evening. Previous safety concerns had been brought to the attention of the defendant, but it had refused to extend the hours during which the car park lights would be operating. The persons who robbed the plaintiff were unknown and unable to be sued.

94 Gleeson CJ explained his Honour's approach at 265 [26]:

Leaving aside contractual obligations, there are circumstances where the relationship between two parties may mean that one has a duty to take reasonable care to protect the other from the criminal behaviour of third parties, random and unpredictable as such behaviour may be. Such relationships may include those between employer and employee, school and pupil, or bailor and bailee. But the general rule that there is no duty to prevent a third party from harming another is based in part upon a more fundamental principle, which is that the common law does not ordinarily impose liability for omissions ... [Citations omitted]

95 It is quite true, as the plaintiff submits, that in the subsequent decision of the Court of Appeal of RTA v Refrigerated Roadways it was held that the RTA owed a duty of care to a truck driver with regard to the criminal acts of third parties who had deliberately dropped or thrown a lump of concrete from a freeway overpass, thereby killing a truck driver who was travelling along the freeway. Campbell JA (with whom McColl JA and Sackville AJA agreed) delivered the leading judgment. But an examination of [126] - [142] of that judgment reveals that the view of his Honour was founded on a number of discrete aspects of the matter, none of which apply here.

96 First, there was a great deal of evidence that the RTA was well aware of the habit of criminals of dropping heavy items from overpasses with the intention of injuring or killing drivers. Indeed, the documentary evidence reviewed by Campbell JA at [23]-[106] showed that, not only was the RTA well aware of that deplorable phenomenon, but also was in the process of taking steps to forestall it. That may be sharply contrasted with the situation here. Not only was there no suggestion that the moving of barriers across a road in order to harm road users had ever occurred within the boundaries of Woy Woy Council, but also the evidence was that the Council and its employees had no knowledge of such a thing having occurred elsewhere.

97 Secondly, it was noted by Campbell JA that it is well established that the RTA can owe a duty to a road user in circumstances in which there has been a collision between that road user and another driver who has been driving criminally. However, before me, the plaintiff did not submit, in support of the proposition that the Council owed the plaintiff a duty of care for the criminal acts of third parties, that it is common for Woy Woy Council, or councils generally, to be found liable in circumstances whereby the operating force upon a plaintiff is the criminal acts of a third party or parties, whether by way of the nature of their driving or otherwise.

98 Thirdly, his Honour noted that it is not uncommon for the RTA to be found liable for damage cause by rocks that fall from (for example) cliffs that have not been properly secured, and that overshadow freeways. If that be the case, Campbell JA reasoned, it was not inappropriate that a duty of care extend to the circumstances of rocks being dropped or thrown from a height, not as the result of natural forces, but rather of human actions. But again, that consideration does not apply here. It is almost impossible to envisage circumstances in which sturdy plastic barriers (even if empty) could somehow become placed across a road by way of the operation of natural forces.

99 Fourthly and finally, Campbell JA regarded it as important that rocks or other heavy items could have travelled from the overpass to the surface of the freeway without there being a criminal act. His Honour referred to the possibility that a heavy item could be dropped accidentally from a freeway overpass, thereby causing harm. But again, that cannot be said to be the case here. It is virtually impossible to think of circumstances in which a person could place plastic barriers across a public road "accidentally", and without that conduct constituting a serious offence, whether it be one founded upon a mental element of intention or recklessness, or at the least founded upon criminal negligence.

100 In short, whilst it is quite true that the Court of Appeal of this State found that the RTA owed road users a duty of care for the particular criminal act and in the particular circumstances described in RTA v Refrigerated Roadways, that does not persuade me that there is such a duty of care in the circumstances of this case. Indeed, it can be seen that the four factors that caused Campbell JA to discern a duty of care in the circumstances of that case do not arise in the circumstances of this case.

101 Finally, before leaving this topic, I indicate that I accept the submission of the Council that the facts of this case are more similar to those in Kavanagh v Ioannou than they are to those in RTA v Refrigerated Roadways. In the former case, a service station operator was held not to be liable for the criminal act of an unknown person in slitting the petrol hose of a petrol pump whilst the service station was closed and unattended, which act caused injury to a customer who sought to use the pump. The Court of Appeal did not need to engage in an intricate analysis to confirm that conclusion of the trial judge. Handley JA (with whom Giles JA and Ipp AJA agreed) stated that the duty of care of a service station operator to its customers did not extend to daily inspection of petrol hoses, as prior to the incident "the likelihood of such vandalism would have seemed to a normal operator to be far-fetched and fanciful": at [20].

102 In short, I do not consider that the scope of the duty owed by the Council to the plaintiff extended to taking reasonable care to forestall the criminal actions of third parties. I come to that view on the basis of the decision of the plurality in Modbury Triangle Shopping Centre v Anzil, and because I do not consider that the particular facts that pertained in RTA v Refrigerated Roadway have been established here, either directly or by analogy.

103 It follows that the claim in negligence of the plaintiff against the Council must fail, because the Council did not owe a duty of care to forestall the crimes of others that harmed the plaintiff.

(ii) Contingent analysis - breach of duty

104 However, as against the possibility that I am wrong in my determination about the scope of the duty of care, I shall proceed to determine, on an ancillary basis, the other elements of negligence. For the purposes of this exercise only, I shall assume that the Council owed the plaintiff a duty of care to take reasonable steps to ensure that items left at the site of the roadworks were not able to be used by criminals to harm road users.

105 Turning to the question of whether the plaintiff has established on the balance of probabilities a breach of that duty by the Council, the parties agreed that the matters to be taken into consideration in determining whether there has been a breach of the duty of care are contained in ss 5B and 5C of the Act. These legislative provisions are to be understood against the background of the well-known common law principles, as stated by Mason J (as his Honour then was) in Council of the Shire of Wyong v Shirt and Others (1979) 146 CLR 40 at 47-8.

106 I shall determine the contingent question of breach of duty in the context of the finding of fact that I have already made: namely, that on the balance of probabilities all of the barriers that were placed across the road were empty of water.

107 The relevant provisions of the Act are as follows:

5B General principles

(1) A person is not negligent in failing to take precautions against a risk of harm unless:

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b) the risk was not insignificant, and

(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a) the probability that the harm would occur if care were not taken,

(b) the likely seriousness of the harm,

(c) the burden of taking precautions to avoid the risk of harm,

(d) the social utility of the activity that creates the risk of harm.

5C Other principles

In proceedings relating to liability for negligence:

(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and

(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and

(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.

108 The first step in determining whether the Council has breached the putative duty of care it owed to the plaintiff is to identify the risk of harm: see Roads and Traffic Authority of New South Wales v Dederer (2007) HCA 42; 234 CLR 330 at [53].

109 The plaintiff submitted that the risk was that if the Council did not use concrete barriers, or barriers that could not be moved, persons of malicious intent would move the barriers and obstruct traffic (TT 234).

110 In written submissions, the Council formulated the risk of harm as:

... that some unknown persons with intent to cause harm to a road user might move four traffic barriers and deliberately place them across two adjacent trafficable lanes.

111 I consider that the risk of harm was that a criminal would move the barriers across the road with the settled intention of causing injury or damage.

112 Having identified the risk of harm, I turn to consider whether the three necessary matters set out in s 5B(1) are made out. As Gummow J (with whom Callinan and Heydon JJ agreed) stated in RTA v Dederer at [65]:

In each case, the question of whether reasonable care was exercised is to be adjudged prospectively, and not by retrospectively asking whether the defendant's actions could have prevented the plaintiff's injury.

113 Counsel for the plaintiff made submissions about what precautions the Council should have taken to avoid the risk of harm to the plaintiff. Bearing in mind that the nature of the consideration required by s 5B(1) of the Act is prospective, and the principles contained in s 5C(1)(a) and (b), I approach those submissions with substantial caution.

114 Counsel for the plaintiff submitted that the Council failed to take precautions against a risk of harm. In short he submitted that concrete barriers should have been used for a number of reasons. First, there were no real financial constraints preventing the use of concrete barriers. Secondly, the area of the road works was remote, and there were frequent periods when the worksite would be unsupervised, leaving ample opportunity for malefactors to create harm. Thirdly, although rural, Woy Woy Road is a busy road. Fourthly, the barriers were not required to be moved during the course of the work. Fifthly and finally, he submitted that the expert evidence of Mr Duckworth that it was industry practice to use concrete barriers in remote locations was uncontradicted.

115 Alternatively, if I were to accept that the use of water-filled barriers was appropriate, senior counsel for the plaintiff submitted that the Council should have ensured that the barriers were filled at all times, in accordance with the manufacturer's instructions.

116 Turning to s 5B(1)(a), I need to consider: was the risk that malefactors would move an unfilled barrier across the roadway with intent to cause harm one of which the Council knew or ought to have known?

117 On the evidence the first aspect can be answered in the negative without difficulty: there was no evidence that any officer or employee of the Council knew of such a risk. As for the second aspect, it is true that road builders ought to know generally that it is possible that criminals could use items left unsupervised overnight at a work site to harm others. Speaking entirely hypothetically, if a road builder left a steam roller or a bulldozer unsecured and with the keys in its ignition overnight, and the machine was stolen and used to inflict injury or damage, one might be tempted to think that that gave rise to a risk of which the road builder ought to have known. But here there was nothing inherently dangerous or destructive or tempting to a malefactor about the barriers, whether filled or unfilled. Nor was there any evidence that the placing of barriers across the road had previously occurred within the boundaries of the Council, or indeed elsewhere. In short I do not consider that the Council ought to have known that there was a risk that a malefactor might move an unfilled barrier onto the roadway. It follows that the plaintiff would fail at the stage of s 5B(1)(a).

118 Turning to s 5B(1)(b), I approach the question on the basis that whether the risk is "not insignificant" refers to the "probability of the occurrence of the risk": Benic v State of NSW [2010] NSWSC 1039 at [101].

119 There was a risk that a malefactor might move an unfilled barrier onto the roadway. But I assess the risk that that would occur as insignificant.

120 Speaking generally, one can imagine that criminals could do all manner of things in different circumstances, including using a wholly innocent item to effect a serious crime: for example, an item as innocuous as a tennis racket left on a front lawn could be used to threaten another person, and thereby effect an armed robbery. But whilst there was always some risk that a person could use any item left at the site to cause harm, I evaluate that risk with regard to the plastic barriers as not ascending beyond the insignificant. It follows that the plaintiff would fail at the stage of s 5B(1)(b) as well.

121 Turning to s 5B(1)(c), I must consider what a reasonable person in the position of the Council would have done as a precaution against the risk of harm, taking into account the factors mandated for consideration in s 5B(2). I consider that, although the likely seriousness of harm (if the risk of a person placing barriers across the road eventuated) was high (s 5B(2)(b)), the probability that a malefactor would deliberately move empty traffic barriers to obstruct traffic was low (s 5B(2)(a)).

122 To my mind, the burden of taking precautions to avoid that risk would have been a heavy one: s 5B(2)(c). Filling the barriers with water would not have sufficed, because they could easily be emptied.

123 Speaking more generally, I do not accept the submission of the plaintiff that the use of concrete barriers was a necessary precaution, or that the failure to do so constituted a breach of any duty of care. Because I am determining a contingent matter, I shall not traverse the evidence in detail. But I am satisfied that concrete barriers would have been more expensive, unwieldy, and inflexible. Their sheer weight made them a difficult proposition logistically. And in truth the whole purpose of using heavy barriers (by way of them either being made of concrete or filled with water) is to protect road workers and road works from passing motor vehicles, not to prevent malefactors from being able to move the barriers across a roadway. Nor am I satisfied that any industry standard mandated the use of concrete barriers at this particular site. In short, I consider that the burden of taking this particular precaution would be very high, particularly given that, pursuant to s 5C(a), the use of concrete barriers would have to be adopted at all reasonably isolated sites within the jurisdiction of the Council.

124 With regard to the use of water-filled barriers, that precaution could not extend merely to keeping all but two of the barriers filled with water, because (as I have said) it would have been an easy matter for the malefactors to empty them over a matter of minutes. And if the barriers had been for some reason unavailable, it would not have been difficult for the malefactors to use some other item at the site (such as a painted wooden barrier depicted, for example, in Exhibit M) to ambush road users. The burden of taking precautions to secure the barriers and the other items at the site would have been very high. Again, that is especially the case when one bears in mind s 5C(a); any precautions taken would have needed to extend to all reasonably isolated sites of road works within the jurisdiction of the Council.

125 In undertaking the foregoing analysis, I have borne firmly in mind the admonition in s 5C(b) against using the proposition that things could have been done differently or better by the Council to find a breach of the putative duty of care.

126 There is no evidence that the Council altered its practices subsequently; accordingly s 5C(c) has no application.

127 Finally, turning to s 5B(2)(d) in its role as informing the question in s 5B(1)(c), I consider that the social utility of building and maintaining roads is of course very high.

128 In short, considering each component of ss 5B and 5C of the Act, and also stepping back to consider the question of breach of duty holistically, even if it be the case that the Council owed the plaintiff a duty of care, I do not consider that, on the particular facts of this case, the Council breached that duty.

129 It follows that, even if I be wrong about the scope of duty of care, I consider that the claim of the plaintiff fails at the stage of breach of duty as well.

(iii) Contingent analysis - causation

130 As against the possibility that I am wrong about both duty of care and breach of duty, I shall turn to consider the question of whether the action of the Council of leaving more than two barriers empty of water at the site over the weekend caused the injuries to the plaintiff. Again, because this is an ancillary analysis, I shall undertake it with reasonable brevity. Again, both parties submitted that I must look to the statute.

131 Section 5D of the Act is as follows:

5D General principles

(1) A determination that negligence caused particular harm comprises the following elements:

(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and

(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability).

(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:

(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and

(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

132 The focus of the parties was on the two limbs of s 5D(1), and s 5D(4). There was no dispute that s 5E establishes that the plaintiff bears the onus of proving any fact relevant to the issue of causation on the balance of probabilities.

133 Turning to the first limb, I do not consider that the (putative) negligence of the Council in leaving a number of barriers empty of water was a "necessary pre-condition" of the occurrence of the harm. In other words, I do not consider that it has been established that the harm to the plaintiff would not have occurred "but for" the conduct of the Council. That is because, although I have found as a matter of fact it was not necessary for them to do so, it would not have been difficult for the malefactors to empty several barriers. In other words, even if the Council had left all of the barriers filled with water, still and all the plaintiff could have been harmed by some of the barriers being emptied and then placed across the roadway. And in any event, if determined to place obstacles on the road to endanger road users, the malefactors could have used other portable items at the site to do so. In short, I do not consider that it can be said that the leaving of empty barriers at the site was a necessary condition of the plaintiff being harmed by the criminals.

134 Separately, considering the normative judgment called for by the second limb and by s 5D(4), I do not consider that it is appropriate for the Council to be liable for the harm caused. The persons who harmed the plaintiff were the malefactors; if they were able to be located and convicted, there is no question in my mind that they should be the subject of stern punishment. The extent of the "culpability" of the Council was to leave at the site two or more barriers that, in accordance with the manufacturer's instructions, should have been filled with water when being deployed to protect road workers. On that analysis, I do not consider that the liability of the Council should extend to legal responsibility for the serious injuries inflicted upon the plaintiff.

135 It follows that the plaintiff would fail with regard to the two limbs of causation as well.

(iv) Summary of determination with regard to liability

136 In short, I do not consider that the Council owed the plaintiff a duty of care with regard to the criminal acts of others, founded upon my analysis of Modbury Triangle Shopping Centre Pty Ltd v Anzil and RTA v Refrigerated Roadways.

137 If I am wrong about that, I do not consider that the Council breached a duty of care with regard to forestalling the criminal acts of others.

138 If I am wrong in those two preceding findings, I do not consider that any breach of a duty of care by the Council caused the injuries suffered by the plaintiff.

(v) Contingent analysis - damages

139 Finally, as against the possibility that my analysis of the question of liability is wholly ill-founded, I shall take the opportunity for completeness to determine a very discrete and circumscribed dispute between the parties about damages.

140 By the close of proceedings, the parties had helpfully agreed upon the sum of damages to which the plaintiff would be entitled if negligence were to be established. The agreed damages are as follows:

Past out of pocket expenses $1,519

(up until 28 October 2013; my understanding is that subsequent out of pocket expenses were not a matter of dispute between counsel)

Future out of pocket expenses $60,000

Past economic loss $55,000

Past superannuation $6,050

Future economic loss $150,000

Future superannuation $19,500

Past care $8,541.65

Future care $20,000

Non-economic loss $200,000

Property damage to motorcycle and helmet $6,200

141 The only matter that remained in dispute was whether, if negligence were established, the plaintiff would be entitled to past and future expenses associated with taking a taxi to and from work. The agreed amounts with regard to those damages are as follows:

Past taxi expenses $20,145

Future taxi expenses $100,000

142 I proceed to resolve that dispute.

143 The evidence of the plaintiff before me was that he is now incapable of riding a motorcycle. In terms of travel between work and home, at one stage he was walking to a bus stop, catching a bus, and walking from a bus stop at the other end of the journey. However, because the number of passengers on the bus meant that it was very rare for him to be able to choose a seat, it was often the case that his right leg would stick out into the aisle of the bus, with the effect that it would often be knocked or twisted by other passengers. He gave evidence that he would be in a lot of pain by the end of his bus journey to work. The trip home would be even worse. For that reason, he had been in the habit of taking a taxi to and from work, at considerable expense.

144 He also gave evidence that it was very difficult for him to enter the driver's seat of a motor car, because of difficulties in bending his right leg. He explained that undertaking the exercise of entering a driver's seat, although it could be done, caused him considerable pain. He did not suffer from the same difficulties with regard to the passenger seat of a taxi-cab.

145 A number of reports of Dr Harvey were relied upon by the Council. With regard to this discrete question, it is noteworthy that, when seen by Dr Harvey on 14 November 2011, the plaintiff seems to have said nothing about catching a taxi to and from work, even though his position before me was that he had been doing so since October 2010.

146 In his reports of 16 April, 27 August, and 19 November 2012, Dr Harvey said nothing touching directly upon this particular question. In his report of 16 May 2013, Dr Harvey said:

Since I last saw him he has been going to work by taxi and he says the reason is that he is having problems travelling in public transport because of his inability to flex the knee and people have been tripping over his extended leg. Given Mr Rankin's height, I believe that this is a very reasonable complaint.

147 Earlier in that report, Dr Harvey had recorded the height of the plaintiff as being 186 cm.

148 By the time of his report of 19 November 2013, the position of Dr Harvey seems to have changed somewhat. He remarked "I see no reason why he would be unable to continue using public transport to travel to and from work". Dr Harvey expressed that opinion having noted that the statement of particulars as to when the plaintiff began to use the taxi was not in accordance with what Dr Harvey had been told on 14 November 2011. Dr Harvey also expressed the view "I believe that he would be able to drive a motor vehicle provided it was an automatic vehicle."

149 Dr Harvey did not give oral evidence before me, and accordingly was not cross-examined by senior counsel for the plaintiff.

150 To my mind, there is nothing in any of the documentary or other evidence before me to suggest that the plaintiff is being dishonest about the injuries that he has suffered, or seeking consciously or unconsciously to exaggerate them. Indeed, the impression is to the contrary, in the sense that he has sought to "get on with his life" as best he can. Furthermore, the plaintiff impressed me as an honest witness in the witness box.

151 I am satisfied on the balance of probabilities that his evidence about the difficulties of using public transport and of entering the driver's seat of a motor car, whether it be a manual or automatic model, are honest and accurate. Whilst it does seem that there has been some sort of error, confusion or crossed-wire with regard to precisely when he commenced to use taxis to travel to and from work, I do not regard that as being of great moment. It certainly does not cause me to call into question the credibility of the plaintiff with regard to his reasonable need to use a taxi to travel to and from work.

152 In short, were it not the case that I have determined the question of the liability of the Council adversely to the plaintiff, I would allow a sum in damages to reflect the use of the plaintiff of a taxi to travel to and from work.

Orders

153 I make the following orders:

(1) Judgment for the defendant.

(2) The plaintiff is to pay the cost of the defendant in the proceedings.

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Decision last updated: 02 October 2014