Liability of Local Governments for Acts of Unknown Persons

Court confirms Council not liable for vandalism of road barricades by unknown persons

A motorcyclist, who sustained serious injuries when he struck barricades that had been moved onto the road carriageway by vandals, has failed to establish liability on the part of the local government performing the roadworks.

In the early hours of 20 July 2008, the Plaintiff was riding his motorcycle along Woy Woy Road, Kariong, past an unmanned section of road repairs being performed by the Gosford City Council, when he collided with a number of plastic barriers which had been moved into the middle of the road carriageway by "unknown malefactors".  The plastic barriers had been hired by the Council to cordon off that part of the road undergoing works.  The Plaintiff claimed that the Council had been negligent in failing to take appropriate measures to address the potential risk that vandals may seek to move the barricades onto the road.

The Plaintiff was unsuccessful in the Supreme Court of New South Wales, with the trial judge finding that the Council's duty of care did not extend to protecting him from antisocial or criminal acts of unknown third parties.  The Court of Appeal upheld the trial judge's decision.

In dismissing the Plaintiff's appeal, the Court made reference to the general principle in Modbury Triangle, in which the High Court had held that there is no duty on an occupier to prevent a third party from harming another.  Whilst the Plaintiff sought to rely on an exception to this rule, namely that the criminal conduct had such a high degree of foreseeability and predictability that the Council became bound to take action, the Court of Appeal disagreed.  In favour of the Council was evidence given at trial by Council employees that they had no knowledge of past incidents of barricades being moved without authorisation, resulting in a hazard to members of the public.  Had the barricades been subject to prior acts of vandalism, however, it is possible that a different outcome could have been reached. 

Whilst this decision is a pragmatic outcome for local governments, care should still be exercised by local governments leaving a roadway in a modified condition, such as in a partial state of repair, to take reasonable measures to ensure that the location does not enable antisocial behaviour that may result in an injury to users of the road.

For more information on the article, or to discuss liability issues further, contact Mark Williams or Darius Isaacs on (07) 3243 0000.