Beware Occupier Can Be Liable for Criminal Act of Third Party

By Melanie Cox | July 2008 Area of Expertise | General Insurance

Summary
On 2 June 2008, the District Court considered the question of whether a defendant occupier has a duty to protect a plaintiff against the criminal wrongdoing of a third party. This decision of the District Court extends the exceptions to the Modbury Triangle rule, noting that in some particular instances, an occupier may have a duty to protect others against the criminal wrongdoing of a third party.

Who Does This Impact?

Occupiers and their insurers.

What Action Should Be Taken?

If an occupier does have the means to prevent a criminal act, of which it is on notice or had knowledge of similar occurrences, it must take action to meet that duty as the Modbury Triangle rule does not always provide a defence.

Refrigerated Roadways Pty Ltd v Roads and Trafc Authority of NSW [2008] NSWDC 91 The District Court considered the question of whether the RTA had a duty to protect an individual against the criminal wrongdoing of a third party.

Facts
As he drove a truck along the Hume Highway on 23 August 1998, Mark Evans suffered fatal injuries when the truck was struck by a large piece of concrete thrown by persons from an overhead bridge, known as the Glenlee Bridge. The defendant, the Roads and Trafc Authority of NSW, was responsible for the bridge. The plaintiff carried on business as a transport company and employed Mr Evans as a driver. As Mr Evans death arose in the course of his employment, the plaintiff made payments to his widow pursuant to the Workers Compensation Act 1987. The plaintiff brought an action against the defendant in negligence seeking to recover the sum of those payments made. Negligence was alleged on the part of the defendant insofar as it, among other things: a) Exposed the worker to a risk of injury of which it knew or ought to have known, and which could have been avoided by the use of reasonable care on its part. b) Failed to install a barrier or other appropriate structure to prevent things falling or being thrown to the highway below.

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Beware Occupier Can Be Liable for Criminal Act of Third Party by Melanie Cox

c) Failed to take any or any adequate steps to deter people from throwing things off the bridge. d) Failed to take any or any adequate steps to ensure the safety of motorists traveling on the highway below the bridge.

Submissions
Counsel for the plaintiff accepted the principles emerging from the case of Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61, namely: , Foresight of harm, by itself, is not sufcient to establish a duty of care. The unpredictability of criminal behaviour is one of the reasons why, 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 is foreseeable. The lack of control of the occupier over the assailant's actions prevented a duty of care from arising.

However, it was argued on behalf of the plaintiff that this case was distinguished from Modbury on the very specic facts involved. In this case, it was argued, the defendant did not have to control the criminal conduct of a third party, but rather had to take a reasonable step by fencing or screening the bridge to avoid what might arise to a person lawfully using the freeway below. Documentation produced to the Court evidenced the fact that the defendant was aware of similar such attacks that had previously occurred, and that the defendant considered the problem of projectiles thrown onto motorways to be widespread and of considerable concern. In fact, in light of the extent of the problem, a decision had been made to obtain urgent funding and to prioritise bridge screening, with the design work for screens for bridges such as the Glenlee Bridge commencing on 17 August 1998.

Judgment
Judge Hungerford held that the doctrine stated by the High Court in Modbury Triangle Shopping Centre Pty Ltd v Anzil does not lay down a universal rule that an injured person is excluded from recovering damages from an occupier in negligence where the damage is consequent upon the criminal act of a third party. Moreover, His Honour concluded that: The unscreened bridge, designed and constructed by the defendant, provided the opportunity and means for criminal conduct by those inclined to engage in it, as was well known to the defendant. On the expert evidence presented to the Court, a screen tted to the bridge, such as that later installed, would have made it impossible for the rock to have been dropped, as it was, onto Mr Evans truck. The risk posed by users of freeways by an unscreened overbridge, such as the Glenlee Bridge, from objects being thrown or dropped from it was real, known and foreseeable.

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Beware Occupier Can Be Liable for Criminal Act of Third Party by Melanie Cox

The above facts were sufcient to distinguish this case from the case of Modbury Triangle Shopping Centre Pty Ltd v Anzil. The appropriate and reasonable response by a highway authority such as the defendant was to fence or screen the overbridge, as in fact the Glenlee Bridge was by 17 October 1998. Accordingly, the failure by the defendant over very many years beforehand to do so represents a failure to take reasonable care.

Implications
This decision of the District Court extends the exceptions to the Modbury Triangle rule, noting that in some particular instances, an occupier may have a duty to protect others against the criminal wrongdoing of a third party. The fact that criminal behaviour is unpredictable does not of itself remove any duty of an occupier to prevent harm to another from the criminal conduct of a third party, particularly if they are aware of the risk. In that situation, the alleged degree of control of the occupier over an assailants actions is signicant in considering the extent of any duty of care imposed. In this case, whilst the RTA did not have actual control over the criminal third party, it could have taken measures to control those criminal acts by fencing the bridge. The knowledge of the RTA of a spate of similar criminal acts that had occurred was also crucial. Whilst it must be remembered that this is only a decision of the NSW District Court (and therefore not binding on higher courts), if an occupier does have the means to prevent a criminal act, of which it is on notice or had knowledge of similar occurrences, it should take action to meet that duty as the Modbury Triangle rule may not always provide a defence.

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Beware Occupier Can Be Liable for Criminal Act of Third Party by Melanie Cox

For more information, please contact:

Melanie Cox
Lawyer T: 02 8257 5770 melanie.cox@turkslegal.com.au

Sydney | Level 29, Angel Place, 123 Pitt Street, Sydney, NSW 2000 | T: 02 8257 5700 | F: 02 9239 0922 Melbourne | Level 10 (North Tower) 459 Collins Street , Melbourne, VIC 3000 | T: 03 8600 5000 | F: 03 8600 5099 Business & Property | Commercial Disputes | Insurance & Financial Services | Workers Compensation | Workplace Relations

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