Roads and Traffic Authority (NSW) v Refrigerated Roadways Pty Ltd - [2009] NSWCA 263

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Limited [2009] NSWCA 263
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
40270/08

HEARING DATE(S):
11 & 12 March 2009

JUDGMENT DATE:
22 September 2009

PARTIES:
Roads and Traffic Authority of NSW (Appellant)
Refrigerated Roadways Pty Limited (Respondent)

JUDGMENT OF:
McColl JA Campbell JA Sackville AJA

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
4508/04

LOWER COURT JUDICIAL OFFICER:
Hungerford ADCJ

LOWER COURT DATE OF DECISION:
2 June 2008

LOWER COURT MEDIUM NEUTRAL CITATION:
Refrigerated Roadways Pty Ltd v Roads and Traffic Authority of NSW [2008] NSWDC 91

COUNSEL:
J Maconachie QC; P Perry (Appellant)
R Sheldon (Respondent)

SOLICITORS:
Crown Solicitor's Office, Sydney (Appellant)
Bartier Perry, Sydney (Respondent)

CATCHWORDS:
TORTS – negligence – breach of duty – standard of care for a statutory authority – whether a court should take account of the budgetary constraints and competing priorities of a statutory authority – distinction between policy and operational decisions – relevance to whether a decision can be made that a roads authority failed to take reasonable care - TORTS – negligence – breach of duty – standard of care – nature of the question of whether there has been a failure to exercise reasonable care – question must be one that can be answered by a jury – relevance of the fact that the statutory authority carries out activities with no private analogue – relevance of budgetary constraints and competing priorities - TORTS – negligence – duty of care – whether duty of care of a roads authority extends to the taking of reasonable care to prevent harm to motorists resulting from the criminal conduct of others – whether duty of care is owed in the exercise of a statutory duty - TORTS – negligence – breach of duty – section 42 Civil Liability Act 2002 – whether the section prohibits allegations of negligence in general or particular allegations of negligence – nature of the particular allegation of negligence prohibited – meaning of “functions” – meaning of “general allocation” – meaning of “resources reasonably available to the authority” - TORTS – negligence – breach of duty – section 43A Civil Liability Act 2002 – type of “reasonableness” involved – need for a “special statutory power”

LEGISLATION CITED:
Civil Liability (Personal Responsibility) Act 2002
Civil Liability Act 2002 (NSW)
Civil Liability Act 2003 (Qld)
Civil Liability Amendment Act 2003
Constitution Act 1902
Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 1994
Environmental Planning and Assessment Regulation 2000
Local Government Act 1919
Mental Health Act 1990
Roads Act 1993
Transport Administration Act 1988
Uniform Civil Procedure Rules 2005
Workers Compensation Act 1987

CATEGORY:
Principal judgment

CASES CITED:
Adeels Palace Pty Ltd v Moubarak [2009] NSWCA 29; [2009] Aust Torts Reports 81-997 (62,722).
Aiken v Kingborough Corporation (1939) 62 CLR 179
Alcock v Fergie (1867) 4 WW & a’B (L) 285
Amaca Pty Ltd v State of New South Wales [2004] NSWCA 124; [2004] Aust Torts Reports 81-749 (65,788); (2004) 132 LGERA 309; 1 DDCR 486
Anns v Merton London Borough Council [1978] AC 728
Ashrafi Persian Trading Co Pty Ltd v Ashrafinia [2001] NSWCA 243; [2002] Aust Torts Reports 81-636 (68,314)
Australian National Airlines Commission v Newman (1987) 162 CLR 466
Ayr Harbour Trustees v Oswald (1883) 8 App Cas 623
Board of Fire Commissioners (NSW) v Ardouin (1961) 109 CLR 105
Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512
Buckle v Bayswater Road Board (1936) 57 CLR 259
Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202
Certain Lloyds Underwriters v Giannopoulos [2009] NSWCA 56
Chilcotin Pty Ltd v Cenelage Pty Ltd [1999] NSWCA 11
Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91 (FC)
Club Italia (Geelong) Inc v Ritchie [2001] VSCA 180; (2001) 3 VR 447
Collingwood Hotel Pty Ltd v O'Reilly [2007] NSWCA 155
Commonwealth v Colonial Ammunition Co Ltd (1924) 34 CLR 198
Council of the City of Liverpool v Turano [2008] NSWCA 270; (2008) 164 LGERA 16; 51 MVR 262
Crimmins v Stevedoring Industry Financing Committee [1999] HCA 59; (1999) 200 CLR 1
Donoghue v Stevenson [1932] AC 562
Drinkwater v Howarth [2006] NSWCA 222
East Suffolk Rivers Catchment Board v Kent [1941] AC 74
Geddis v Proprietors of Bann Reservoir (1878) 3 App Cas 430
Gloucester Shire Council v McLenaghan [2000] NSWCA 208; (2000) 109 LGERA 419; 31 MVR 340
Gorringe v Transport Commission (Tas) (1950) 80 CLR 357
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540
Grant v Royal Rehabilitation Centre Sydney [1999] NSWCA 250; (1999) 47 NSWLR 263
Harriton v Stephens [2006] HCA 15; (2006) 226 CLR 52
Hill v Commissioner for Main Roads (1989) 68 LGRA 173; 9 MVR 45; [1989] Aust Torts Reports 80-260 (68,781)
Home Office v Dorsett Yacht Co Ltd [1970] AC 1004
Hudson v Venderheld (1968) 118 CLR 171
Hunter Area Health Service v Presland [2005] NSWCA 33; (2005) 63 NSWLR 22
Jaber v Rockdale City Council [2008] NSWCA 98; [2008] Aust Torts Reports 81-952 (61,700)
Just v British Columbia [1989] 2 SCR 1228
Kent v East Suffolk Rivers Catchment Board [1940] 1 KB 319
Miller v McKeon (1905) 3 CLR 50
Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254
Nagle v Rottnest Island Authority (1993) 177 CLR 423
New South Wales v Bardolph (1934) 52 CLR 455
New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486
Overseas Tankship (UK) Ltd v Miller Steamship Co Pty (Wagon Mound (No 2)) [1967] 1 AC 617; (1966) 67 SR (NSW) 21; [1966] 1 NSWR 411
Penrith Rugby Club Ltd v Elliott [2009] NSWCA 247
Pape v Federal Commissioner of Taxation [2009] HCA 23; (2009) 83 ALJR 765; 227 ALR 1
Pollard v Trude [2008] QCA 421
Pollard v Trude [2008] QSC 119
Port Stephens Council v Theodorakakis [2006] NSWCA 70
Precision Products (NSW) Pty Ltd v Hawkesbury City Council [2008] NSWCA 278
Presland v Hunter Area Health Service [2003] NSWSC 754
Puntoriero v Water Administration Ministerial Corporation [1999] HCA 45; (1999) 199 CLR 575
Pyrenees Shire Council v Day [1998] HCA 3; (1998) 192 CLR 330
Refrigerated Roadways Pty Ltd v Roads and Traffic Authority of NSW [2008] NSWDC 91; (2008) 7 DCLR(NSW) 45
Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; (2007) 234 CLR 330
Romeo v Conservation Commission (NT) [1998] HCA 5; (1998) 192 CLR 431
Rowling v Takaro Properties Ltd [1988] AC 473 (UKPC)
Schiller v Mulgrave Shire Council (1972) 129 CLR 116
Singleton Shire Council v Brodie [1999] NSWCA 37
Smith v Leurs (1945) 70 CLR 256
South Tweed Heads Rugby League Football Club Ltd v Cole [2002] NSWCA 205; (2002) 55 NSWLR 113
Spedding v Nobles [2007] NSWCA 29; (2007) 69 NSWLR 100
State of New South Wales v Ball [2007] NSWCA 71; (2007) 69 NSWLR 463
Stovin v Wise [1996] AC 923
Stuart v Kirkland-Veenstra [2009] HCA 15; (2009) 237 CLR 215
Sutherland Shire Council v Heyman (1985) 157 CLR 424
University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481; 60 ALR 68
Victoria v The Commonwealth and Hayden (“AAP Case”) (1975) 134 CLR 338
Wagstaff v Haslem [2007] NSWCA 28; (2007) 69 NSWLR 1
Warren v Coombes (1979) 142 CLR 531
Waverley Council v Ferreira [2005] NSWCA 418; [2005] Aust Torts Reports 81-818 (68,074)
Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598; 200 ALR 447
Woodward v Orara Shire Council (1948) 49 SR (NSW) 63
Wyong Shire Council v Shirt (1980) 146 CLR 40
X (Minors) v Bedfordshire County Council [1995] 2 AC 633

TEXTS CITED:
Twomey, The Constitution of New South Wales (2004), The Federation Press
Campbell, "Contribution, Contributory Negligence and Section 52 of the Trade Practices Act" (1993) 67 ALJ 87
Review of the Law of Negligence Final Report (September 2002)
Watson, “Section 43A of the Civil Liability Act 2002 (NSW): Public law styled immunity for the negligence of public and other authorities?" (2007) 15 Torts Law Journal 153
Villa, Annotated Civil Liability Act (2002) (NSW) (2004) Lawbook Co

DECISION:
1. Appeal allowed
2. Set aside the judgment and orders in the court below
3. In lieu thereof, order that the proceedings be dismissed with costs
4. Order Respondent to pay Appellant’s costs of the appeal.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40270/08
DC 4508/04
McCOLL JA
CAMPBELL JA
SACKVILLE AJA
22 SEPTEMBER 2009

ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES v REFRIGERATED ROADWAYS PTY LTD

HEADNOTE

Facts: Mr Mark Evans, an employee of the respondent, was killed whilst driving a truck along the F5 freeway in Sydney’s southwest when a concrete block dropped from an overhead bridge known as the Glenlee Bridge penetrated the front windshield. The respondent brought an action in negligence against the RTA as the responsible roads authority claiming breach of a duty of care owed to road users by failing to screen the overhead bridge. The RTA was aware that there was a problem of people dropping objects from overhead bridges and had developed an order of priority for screening overhead bridges. Progress in screening the bridges was slow due to budgetary constraints and so the Glenlee Bridge had yet to be screened at the time of the accident.
Held: (per Campbell JA, McColl JA and Sackville AJA agreeing) (1) The RTA owed a duty of care to road users to take reasonable care to prevent harm to road users. This includes taking reasonable care to protect motorists from harm resulting from the criminal conduct of others. ([115]-[142])
Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512 applied, Modbury Triangle Shipping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254 distinguished, Ashrafi Persian Trading Co Pty Ltd v Ashrafinia [2001] NSWCA 243; [2002] Aust Torts Reports ¶81-636 (68,314) distinguished.
(2) The RTA did not breach its duty of care by failing to screen the Glenlee Bridge at the time of its construction because it has not been shown that it failed to take a step that a reasonable roads authority would have taken. ([186])
Wyong Shire Council v Shirt (180) 146 CLR 40 applied.
(3) In determining whether a statutory authority has breached a duty of care, evidence of funding constraints and competing priorities of the authority should be taken into account in order to determine what a reasonable authority, with its powers and resources, would have done in the circumstances of the case. ([225], [259], [263]-[265], [299])
Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512 applied, Crimmins v Stevedoring Industry Financing Committee [1999] HCA 59; (1999) 200 CLR 1 applied, Pyrenees Shire Council v Day [1998] HCA 3; (1998) 192 CLR 330 applied.
(4) The question of whether reasonable care has been taken in a particular situation must be one that is capable of being submitted to a jury for determination, on the basis of the jury members’ ordinary knowledge and experience. Where the failure to act in a particular respect is one that has no analogue in the activities of private individuals, and would involve significant expenditure, it may not be possible to say that the taking of reasonable care requires expenditure in one area of activity rather than another. ([266]-[286])
(5) Taking into account the budgetary constraints under which the RTA operated, the decision-making processes and expenditure priorities adopted by the RTA, it would not have been possible for a jury to come to a decision that the RTA failed to take reasonable care to protect motorists. ([300]-[311])
(6) The RTA could not rely on section 43A Civil Liability Act 2002 as it had not been relied on below, and the inquiry involved in deciding if section 43A applied is different to that involved in deciding breach of duty. In any event, the acts of negligence alleged were not done in the exercise of a “special statutory power”. ([363]-[376])
(7) Section 42 Civil Liability Act 2002 only prevents the making of a claim that a public authority has breached a duty of care in a particular manner, namely, if the plaintiff’s allegation that the public authority failed to take reasonable care involved alleging that the taking of reasonable care would have required the authority to make a different general allocation of resources than that which it in fact made. In order to determine whether section 42 applies, it is necessary to consider the particular manner in which the claim of breach of duty of care has been alleged. ([388]-[405])
(Per Sackville AJA) (8) The primary judge was required by statute to satisfy the requirements of section 5B Civil Liability Act 2002 before a finding of negligence could be made. ([442]-[449])
**********
CONTENTS
Para No.
Nature of the Case  3
Summary of Decision Reached  14
The Types of Evidence Called  19
Some Relevant Roads and Bridges  21
Knowledge of the Problem of Items Dropped from Overpasses  23
Action Concerning Bridge Screening  26
Operation of the Budgetary Approval Process  39
Acceleration of the Screening Program  102
The Alleged Acts of Negligence  107
ISSUE 1 – DUTY OF CARE OWED BY RTA?
Statutory Duties and Powers of RTA  108
RTA’s Duty of Care  115
ISSUE 2 – BREACH OF DUTY?
Issue 2(a) – Breach of Duty at Time of Construction of Overpass?  143
The 1969 American Publication  146
     The Judge’s Findings Concerning Screening at Time of Construction  160
     Decision on Breach of Duty at Time of Construction  165
Legal Test for Breach of Duty  172
     The Shirt Test for Breach of Duty  178
Issue 2(b) – Breach of Duty in Not Retrofitting Screens?  188
Issue 2(b)(1) – The Factual Findings Challenged  189
Reasonable Foreseeability   194
Characterisation of the Risk  195
Issue 2(2) – The Significance of RTA’s Financial Limitations
to Breach of Duty  211
     Brodie on Role of Financial Considerations in Deciding Breach  212
Decisions Courts are Incapable of Making? – Case Law  231
Standard of Reasonable Care for a Statutory Authority – Case Law  260
Decision Courts Unable to Make – General Considerations  266
The Decision Below Concerning Significance of Funding Constraints  287
Decision on Whether RTA Failed to Exercise Reasonable Care  300
Issue 2(3) – Section 43A Civil Liability Act Available?  312
Whether Section 43A Should be Permitted to be Argued on the Appeal  314
Common Law Re Relation of Duty of Care and Public Law Duties
Re Exercise of Statutory Power  320
Construction of Section 43A  351
Would Section 43A have Helped RTA?  363
No “Special Statutory Power”  364
Liability Not “Based on Exercise of, or Failure to Exercise” Special
Statutory Power  371
Section 42 Civil Liability Act 377
Issue 2(4) – Negligence in the Evaluation Matrix
The RTA’s Risk Analysis Methodology  409
The Additional Particular of Negligence  415
The Judge’s Findings about the Evaluation Process  423
Decision About Negligence in the Evaluation Process  426
ISSUE 3 – CAUSATION OF DAMAGE  435
Orders  436
**********

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40270/08
DC 4508/04
McCOLL JA
CAMPBELL JA
SACKVILLE AJA
22 SEPTEMBER 2009

ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES v REFRIGERATED ROADWAYS PTY LTD

Judgment

McCOLL JA: I have had the privilege of reading Campbell JA’s judgment. I agree with his Honour’s reasons and with the orders he proposes.
CAMPBELL JA:
Nature of the Case
In the early hours of Sunday, 23 August 1998 Mr Mark Evans was driving a semi-trailer truck south on the F5 freeway. The F5 freeway is part of the Hume Highway. An overhead bridge, known as the Glenlee Bridge passes over the freeway near Menangle, somewhat to the south of Campbelltown. That bridge carries a road that leads to a private residence, a horse riding farm, and an entrance to the National Equestrian Sports Centre on the western side of the freeway. The road on the bridge had no pedestrian walkway at the side. As part of the original design of the bridge, waist-high metal railings on a concrete base were constructed along each side of the bridge.
The truck Mr Evans was driving was struck by a large piece of concrete dropped from the Glenlee Bridge. The concrete went through the windscreen of the vehicle, and struck Mr Evans in the chest. His vehicle veered across the highway and up an embankment. Mr Evans died at the scene of the accident. A widow and two children survived him.
Four people were involved in the dropping of objects from the bridge on 23 August 1998. They collected the objects that were dropped from the bridge from the home of one of the men, placed them in the boot of a motor vehicle, and drove to the Glenlee Bridge for the specific purpose of dropping them from the bridge onto trucks passing below. Clearly, dropping the concrete from the bridge onto traffic below was criminal conduct. It was common ground that the four people responsible have been convicted and sentenced for offences concerning this incident.
Mr Evans was an employee of the Respondent, and was acting in the course of his employment when he died. The Respondent made payments to his widow pursuant to the Workers Compensation Act 1987 consisting of a lump sum death benefit and continuing weekly payments.
At the time of the accident, and at all times since the commencement of the Transport Administration Act 1988 the Appellant (the “RTA”) had the care and control of the Glenlee Bridge and the Hume Highway at Menangle below the bridge.
The Glenlee Bridge was constructed by a statutory predecessor of the RTA, the Commissioner for Main Roads (“DMR”). Design work for the Glenlee Bridge appears, from the date on a plan in evidence, to have been carried out in and about June 1975. While the evidence is not precise about when construction occurred, its construction had been completed by June 1978.
Mr Evans’ widow and children did not take any action for damages against the RTA. In the court, below the Respondent sued the RTA contending that Mr Evans’ death arose in circumstances that created a liability on the part of the RTA to pay damages to the widow and children. In consequence, the Respondent contended, it was entitled, pursuant to section 151Z(1)(d) Workers Compensation Act, to indemnity from the RTA for the payments of workers’ compensation made, plus interest on the death benefit component of compensation.
The trial proceeded on the basis that if the RTA had a liability to the widow and children the damages recoverable by them would be approximately $710,000. The trial proceeded on the basis that, as the total amount of compensation plus interest for which the Respondent sought indemnity was less than $710,000, there was no occasion for the trial judge to quantify the amount of damages to which the widow and children would have been entitled with any greater precision than this.
Adopting that basis was contrary to the principle that a trial judge hearing the first application for an indemnity under section 151Z(1)(d) should determine the quantum of damages to which the worker (or those claiming under him), would have been entitled if the worker, or those claiming under him, had sued: Grant v Royal Rehabilitation Centre Sydney [1999] NSWCA 250; (1999) 47 NSWLR 263. The obvious purpose of this is that, where there are continuing payments of workers’ compensation being made, the amount of damages to which the worker or those claiming under him or her would have been entitled, will provide the basis for calculating the maximum amount of indemnity that will become payable in the future concerning those ongoing payments. The error in proceeding in this way at the trial does not affect the outcome of this appeal.
His Honour Judge Hungerford ADCJ found that the RTA was liable to indemnify the Respondent for the amount it claimed: Refrigerated Roadways Pty Ltd v Roads and Traffic Authority of NSW [2008] NSWDC 91; (2008) 7 DCLR(NSW) 45.
The RTA appeals against the finding of liability in the court below. The issues argued on the appeal were:
(1)Even though the RTA admits it owes a duty of care to motorists of the type described in Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512, whether its duty extends to requiring it, either at the time of construction of the Glenlee Bridge or later, to take reasonable care that motorists not be injured by criminal behaviour like that involved in rocks being thrown or dropped from an overhead bridge onto a freeway.
(2)If such a duty existed, whether the RTA breached it in the present case (bearing in mind section 42 Civil Liability Act 2002) by either
(a)not having installed screening on the bridge when it was first constructed, or
(b)not having retrofitted screening to the bridge prior to 23 August 1998.
There are several sub-issues to these issues concerning breach of duty:
(1)Whether the judge was right in making a number of findings that he described as findings of fact.
(2)What, if any, significance there is in any limitations on the RTA’s ability to spend money or the usual way in which the RTA obtained money to spend on the F5.
(3)Whether it is open to the RTA to rely on section 43A Civil Liability Act in this appeal, and if so what, if any, difference section 43A makes to the result that would otherwise arise.
(4)Whether it is open to the Respondent to rely in the appeal on a particular of negligence that had not been pleaded concerning the manner in which RTA decided the order of priority in which bridges should be screened.
(3)Whether any breach of duty by the RTA caused Mr Evans’ death.
Summary of Decision Reached

I have concluded that the RTA owed a duty of care to motorists such as Mr Evans concerning the dropping of rocks from overpasses over freeways, but that the RTA did not breach that duty either by failing to install screens at the time the Glenlee Bridge was constructed, or by failing to retrofit screens to the bridge at a later time. In so doing I have permitted the Respondent to rely on the particular of negligence that had not been pleaded, but was in substance litigated at the trial.
The conclusion that there is no breach of duty is initially arrived at on the basis of the common law, after taking into account a mass of evidence concerning the funding available to the RTA, and the steps that it took to respond to the risk of objects being dropped from overpasses.
I reject a conclusion that the trial judge arrived at that section 42 Civil Liability Act does not apply to this case, but section 42 does not lead me to a conclusion that is different to the conclusion arrived at from the common law.
I reject the RTA’s application to rely on section 43A Civil Liability Act, but also conclude that, even if it had been permitted to be relied on, it would not have led to a different result.
When there is no breach of duty, the question that was argued about causation of loss does not arise.
The Types of Evidence Called
The case of the Respondent in the court below consisted of calling an expert witness on the topic of crash investigation, Mr John Jamieson, and tendering documents, many of which were derived from the records of the RTA.
The case of the RTA in the court below consisted of calling evidence from various RTA officers who had been involved in the RTA’s activities relating to bridges over freeways, expert evidence from Mr Bruce Fishburn (an engineer) and Professor White (a criminologist), and tender of further documents, again mainly from RTA internal records.
Some Relevant Roads and Bridges
Details of several freeways around the Sydney region other than the F5 appear in the evidence. These include the F3, the M4, the M5, and the M2.
There are eight bridges over the F5 in the Campbelltown region. As one proceeds south along the F5, there is a bridge that carries Campbelltown Road over the F5 near Prestons and Glenfield, another at Brooks Road, then a bridge that carries Campbelltown Road over the F5 between Ingleburn and Minto, then the St Andrews bridge, then the Raby Road bridge, then a bridge that carries Narellan Road over the F5 at Mt Annan, then one comes to the Glenlee Bridge and finally the Menangle Road bridge.
Knowledge of the Problem of Items Dropped from Overpasses
Mr Bruce Fishburn is an engineer who had previously worked for the DMR and then the RTA, but had become a consultant in private practice by the time of the hearing. He gave both expert and lay evidence. He had responsibility for the erection of the Glenlee Bridge. He was unaware of any incidents involving items thrown from an overpass to the freeway below until about 1994.
Analysis of the RTA’s internal documentation assembled for the purpose of this case shows the following concerning the period before Mr Evans’ death:
(a)On 17 February 1990 a bag full of sand was dropped from the Mount Kiera Road overpass onto a vehicle on the F5 freeway, resulting in lacerations to the arm of the driver.
(b)When the first stages of the M5 motorway were opened in 1992 numerous incidents occurred of objects being dropped from bridges over it.
(c)On 2 April 1992 Mr Ron Clayton wrote to the RTA saying that on 28 March 1992 a plastic bag filled with water and eggs was thrown at the windscreen of his vehicle, and three other vehicles, while they were travelling on the Hume Highway between Campbelltown and Liverpool. His letter concluded:
“It is extremely disappointing at a time when the NSW RTA is Blitzing nearly every vehicle that moves on the States[’] Roads that they cannot protect motorists from harm and damage through the use of their structures for people to launch missiles. Fortunately in Victoria the RTA saw the error of these structures and erected high wire fences on all Freeway Overhead bridges. I only hope that something can be done about this sort of thing before someone is killed.”
An RTA officer replied to Mr Clayton, saying:
“No other cases have been reported to the Authority of any person or persons throwing objects from the bridge to which you refer or other bridges on the Freeway.
The provision of preventative fencing on bridges along the road could not be justified at this time. However, the Authority will continue to monitor the situation and liaise with the Police Department.”
(d)On 16 October 1992 a rock was thrown by “juveniles” from the River Road overpass onto a vehicle travelling on the M5 freeway, injuring the driver.
(e)On 8 February 1993 Mr Glen Morgan of the RTA wrote to another RTA officer, saying:
“Have discussed these incidents with Picton Police. They indicate that there is a real problem along the freeway in this area & Campbelltown. Suggest discussions with Police or at Traffic Committees to develop strategy.”
(f)On 22 July 1993 a concrete block was dropped by “unknown persons” from the Avon Dam Road overpass bridge into the path of a vehicle travelling on the F5.
(g)On 24 September 1993 a Mr Saville wrote to the Premier, who was also his Local Member of Parliament, Mr John Fahey. Mr Saville complained that he was the driver of one of three cars damaged when rocks were dropped on the southern expressway from an overpass “near Glen Alpine, several kilometres south of Campbelltown”. That overpass is conceded to be the Glenlee Bridge. His letter continued:
“The Campbelltown police officers who were called to the scene were familiar with this form of madness. The only thing that surprised them was that it usually happened closer to Campbelltown. The tow truck driver had had a log dropped on his truck further down the highway and the claims clerk with whom I spoke this morning had seen a similar occurrence on the Central Coast.”
Mr Fahey passed this complaint on to the RTA. The Director of the RTA replied to Mr Fahey on 26 October 1993, saying:
“Unfortunately there is little the Authority can do. The enclosure of bridges with wire mesh is only practicable in the case of pedestrian bridges. On the M5 only the pedestrian bridge at Mackenzie Street has been treated in this way.
On vehicle bridges the height of fencing required may impose loadings on the bridges which they have not been designed to withstand. Given the large number of overhead bridges on the road network any such treatment program would be hugely expensive, and no doubt in the view of many aesthetically undesirable, with no guarantee that it would ultimately deter those determined to carry out these senseless activities.”
The reference to “enclosure” of bridges with wire mesh refers to their total enclosure, not to the erection of protective screens at the side.
(h)In 1994 the dropping of an object from an overbridge in Victoria caused a fatality. This incident became known to the RTA in NSW. So far as the evidence discloses, it was the first death resulting from this sort of activity in Australia.
(i)In March, September and December 1994 there were separate incidents of rocks being dropped from overpasses at three separate Sydney locations (none of which was on the F5) resulting in vehicle damage.
(j)In January 1995 a rock was dropped onto the M5, causing a vehicle to overturn. The finding was “RTA and Minister then advising that pedestrian bridges were not being considered”. I take that cryptic statement to mean that screening of pedestrian bridges was not being considered.
(k)In April 1995 there were three separate instances, on three different Sydney roads (not including the F5) in which objects were dropped and either the driver was injured or the windscreen was broken.
(l)In May 1995 the RTA received a report of an incident that had occurred in March 1994 when an object was dropped from a bridge on the M4, damaging the vehicle.
(m)In June 1995 the RTA received a letter from a motorist complaining that on 20 January 1995, while driving along the F5 in a southerly direction, his vehicle was hit by a rock thrown from the Campbelltown Road overpass. The letter stated:
“Why the RTA does not install safety net? Before someone gets killed. I am very lucky person to be alive.”
(n)In August 1995 there was an incident involving a rock on the M4 at Pomeroy Street, in which a window was broken.
(o)In October 1995 there was an incident at a bridge on the M4 that resulted in a window being broken.
(p)In October 1995 a pipe was suspended from a bridge on the M4.
(q)In January 1996 a brick was dropped from the Raby Road, Campbelltown overbridge and through the windscreen of a vehicle travelling on the F5.
(r)There were two incidents in February 1996, one in March 1996, one in April 1996, one in June 1996, one in September 1996, one in February 1997, one in May 1997, one in December 1997, and one April 1998 causing either injury to the driver, windscreen damage or other vehicular damage.
(s)An RTA ministerial briefing note dated 24 January 1996 reports that in the year prior to 24 January 1996 there were seven incidents known to the RTA when objects were intentionally thrown from an overbridge onto vehicles travelling beneath. Motorists were injured in three of those incidents.
There was uncontested evidence that in the 1990s there were incidents not only of objects being dropped onto freeways from overhead bridges, but also of objects being thrown onto freeways from embankments at the side of the freeway. These included some incidents recorded in police records that do not seem to have a corresponding entry in RTA records, namely:
(a)In November 1994 a semitrailer driving south on the F5 had its windscreen broken by a rock that youths threw from an embankment on the site of the expressway.
(b)On 31 July 1997 youths aged 10 to 12 threw rocks at vehicles on the F5 near Campbelltown “from the Fullwood Reserve”. I would infer that these rocks were thrown from the side of the road rather than from a bridge.
Action Concerning Bridge Screening
Though the trial judge did not make detailed findings concerning the way in which screening of bridges over expressways progressed over time in the Sydney region, the course of events emerges clearly from contemporaneous documents. The RTA talks of the “Sydney Region” as including not only the Sydney metropolitan area, but also the areas covered by Blue Mountains City, Gosford City, Hawkesbury City, Wollondilly, and Wyong.
In 1993 and 1994 two pedestrian bridges over the M5 were screened. The evidence does not establish that it was the RTA, rather than the operator of the M5 tollroad, that carried out this screening.
In April 1995 the Minister for Police convened a committee comprising the Police, RTA, State Rail Authority (SRA) and local government to consider action following several incidents where motorists had been injured in the preceding months. The RTA committed to screening some bridges, in an order of priority determined by a risk methodology that it had developed in January 1995.
Mr Stephen Dunlop is an engineer employed by the RTA. In mid 1995 Mr Dunlop was appointed as the RTA’s Sydney Asset Manager. Part of his responsibility in that position was for hazard reduction concerning objects dropped from overbridges. He was assisted by Mr S’Muttu Sivarasa, an engineer who worked for the RTA as a Budget Manager and Bridge Maintenance Engineer.
In June 1995 Mr Peter Sansom, an M5 Project Manager with the RTA, sent Mr Dunlop a memo concerning objects dropped from bridges on the M5. He reported that there had been a number of incidents associated with objects being dropped from bridges over the M5, that when the first stages of the M5 were opened in 1992 numerous incidents occurred, and in consequence Interlink Roads (the private company that developed and operates the M5) undertook the removal of loose items that could be used as projectiles in the vicinity of overbridges, and employed security guards to monitor the overbridges. The memo continued:
“The Mackenzie Street pedestrian bridge was then caged. It is apparent that publicity associated with incidents, including a Victorian fatality, generated further spates of incidents.
In June 1994 the M2 Casula Link was opened to traffic and while the sides of the Box Road pedestrian bridge were screened, incidents where rocks and tree planting stakes were dropped on vehicles. The roof of the pedestrian bridge was subsequently caged. Further incidents have been reported from Council’s North South Link Road.
Observations
It is evidence that incidents are likely to occur when:
-an overbridge is in proximity to a school or shopping centre;
-the overbridge is relatively isolated with little passing traffic; and
-material that could be used as a projectile is in close proximity to the overbridge.”
On 10 August 1995 Mr Dunlop sent to Mr Ray Wedgwood, the Manager of the Bridge Branch of the RTA, a brief for developing concepts for the screening of four particular bridges. Of these, three were pedestrian bridges, and the other was a combined road and pedestrian bridge. The bridges were over the M4 and the F3. Mr Wedgwood provided cost estimates promptly, and an estimate of completion time of the end of September 1995. He was instructed to proceed with the work.
On 14 November 1995 Mr Dunlop produced an 11-page report on hazard reduction from overpass structures. It reported that four bridges over major roads in the Sydney region had been identified as having the greatest likelihood of an incident. These were the same four bridges as had been identified in the 10 August 1995 memo, but Mr Dunlop’s report explained on what basis they had been chosen – see para [35] below. Other statements in it were:
“It is proposed that protective screens be erected on these bridges to deter future criminal acts. It is also proposed that all future overbridges and bridges where incidents are reported be assessed under a similar system and screens erected as required.”
It reported that a working party of five people (including Mr Wedgwood, Mr Sansom, Mr Sivarasa, and Mr Dunlop) had been formed to identify the risks and develop strategies. That working party had identified the scope of the hazard potential as extending to a total of 121 bridges. These were either bridges that were solely pedestrian, or road bridges with pedestrian traffic. It said:
“From the limited data available most incidents occur from pedestrians crossing an overbridge throwing or dropping an object which was found around the overbridge. …
Police records show a low level of known incidents in the Sydney Region of approximately five per year. … [I]ndications are that most involve opportunistic rather than premeditated behaviour.”
It also reported that a committee had been formed comprising representatives of the police, local government, the State Rail Authority and the RTA. It reported:
“… the problem for the SRA is severe. During a two week survey for the committee the SRA recorded 21 incidents of trains attacked by persons throwing missiles from bridges or track side.
The Committee considered that the RTA’s approach of analysing sites for the potential hazard and dealing with each site as required the most effective method of treatment.”
By that time the working party had developed an assessment survey for bridges which identified nine different risk factors and two variables that might apply in relation to each risk factor. Using that survey, certain pedestrian bridges over state roads and all bridges over restricted access roads were surveyed. The criteria for a bridge being surveyed was that it was in the Sydney region, was the responsibility of the RTA or over another RTA road, and there was a pedestrian walkway on the bridge. As well, overbridges carrying reasonable traffic volumes were not considered as it was considered that potential miscreants would be deterred by the possible observation. Ten particular bridges were identified using that methodology as those with the highest priority to screen. The most urgent four were put in that category because each was near a school, a hotel or a youth attraction (or more than one of those), and had either no lighting, or remote lighting. The Glenlee Bridge was not one of those identified. As it is a bridge that did not have a pedestrian walkway, it would not have been considered in the survey.
On 12 September 1996 Mr Dunlop prepared a document concerning the risk of objects thrown from bridges onto roads below. It included:
“During the past year there has been seven incidents known to the RTA where objects have been intentionally thrown from an overbridge onto vehicles travelling beneath. On three occasions motorists in the vehicles were injured. In Victoria in 1994 a motorist was killed in a similar incident.
Police records show a low level of known incidents in the Sydney Region of approximately five per year. More incidents occur outside the urban area. While the Police consider acts of throwing objects onto vehicles a criminal act indications are that most involve opportunistic rather than premeditated behaviour.
In comparison a report from the Chicago area of the US has in one year 600 incidents of objects being thrown from bridges over roads.
2. Analysis of Sites
The potential sources of problems in Sydney Region are:-
a)Pedestrian bridges over State Roads – 61, (including 10 over Freeways and Motorways – four of the latter are already encased).
b)Road bridges with pedestrian traffic over Freeways and Motorways – 60.
c)Road bridges with pedestrian traffic over State Roads – 110.
…
The incidents of missiles being thrown from bridges are sporadic in both location and time. Accordingly, there were no bridges identified as having a definite history of incidents.”
Thus, a total of 231 bridges in the Sydney Region were identified as “potential sources of problems”.
Mr Eka Onggo was an engineer who worked for the RTA as a senior project manager. Mr Onggo had, by the end of 1996, developed a methodology for assessing the risk of objects being dropped from overbridges. It was an elaboration and refinement of the methodology that had been used in Mr Dunlop’s report of 14 November 1995. Mr Onggo’s methodology was applied to various bridges under the control of the RTA, and by its use an order of priority for screening those bridges was arrived at. The detail of the manner of operation of the risk assessment process will be considered in greater detail later (paras [409] ff below).
Operation of the Budgetary Approval Process
The F5 and the F3 are both classed as National Highways. Funding for both maintenance and improvements on National Highways is ordinarily provided by the Commonwealth Government, by means of tied grants under section 96 of the Constitution.
Our attention was not specifically drawn to any evidence that identified any legal framework that led to the classification of some roads as National Highways, or any clear statement of the basis on which the roads came to be classified as National Highways, or the precise consequences of being so classified. However, it is apparent from documents in evidence, including detailed budgetary documents, that National Highway roads in New South Wales include a link between Sydney and Melbourne constituted by the Hume Highway (of which the F5 is part), a link between Sydney and Brisbane constituted by the Newcastle freeway (the F3) and the New England Highway, certain urban links in the Sydney region connecting the Hume Highway and the Newcastle freeway, a link between Sydney and Adelaide constituted by the Sturt Highway, a link between Melbourne and Brisbane constituted by the Newell Highway, and some Canberra connections constituted by the Federal and Barton highways.

Accounting for road works is done on the basis of financial years running from 1 July to the next 30 June. A process is in existence whereby State Ministers seeking funding for National Highway roads submit to the Commonwealth Government a forward strategy that itemises proposed work in the next five financial years. Those forward strategy documents are forwarded in February or March of a year. They are taken into account in the framing of the Commonwealth Budget for the next financial year, which usually is delivered in May of a year.
Items such as screening of bridges over freeways are classified as safety and minor works. Proposals for safety and minor works need to be taken account of in the overall forward strategy documents and an item covering such works in general terms is included in the Commonwealth Budget. However, during the years relevant to the present case, the State Government made submissions, and the Federal Government made decisions, concerning the detail of the safety and urgent minor works that the Commonwealth would fund in a process that operated separately to the overall Commonwealth Budget process.
The first appearance of screening of overpasses in the Commonwealth budgetary process was on 24 January 1996, when the Chief Executive of the RTA sent the NSW Minister for Roads, Mr Michael Knight, a briefing note relating to bridges over motorways in urban areas. It stated the background as follows:
“*Following a number of serious incidents involving injury to motorists and damage to vehicles the RTA completed a full investigation into the throwing of projectiles from overbridges and methods to prevent such action.
*The investigation team looked at the circumstances surrounding such incidents and recommended the treatment of high risk overbridges that had not already been treated under previous programs. …
*The outcome of the study was the identification of bridges on the M4 Motorway, the F3 Newcastle Freeway and the F5 South Western Freeway as having the highest priority for treatment. There are 43 bridges on these roads requiring treatment. At $50,000 each the total cost is estimated at $2.2M. Both the F3 and the F5 are National Roads and it is proposed that the Federal Government be approached to provide $1.2M in 1996/97 to cover the works.”
By the time of that briefing note, the RTA had already announced a programme for screening of overbridges on the M4 motorway. The M4 is not a National Highway. Presumably, any estimates and appropriation to cover the cost of that work, and any other screening of overbridges on roads that were not National Highways, was carried out through the budgetary process of the State Government. The evidence in the present case did not go into the budgetary process of the State Government concerning roads. Screening of bridges over roads for which the State Government was responsible was touched on only incidentally in the evidence, as such bridges were considered by the RTA as part of the process of risk evaluation concerning the dropping of objects from overpasses in the Sydney region.
The briefing paper continued:
“*During January 1996 a brick was dropped from the Raby Road, Campbelltown overbridge and through the windscreen of a vehicle travelling on the F5 Freeway.
*Previous investigations had not indicated a problem at this overbridge (it is relatively heavily trafficked, there is clear visibility with no special developments such as schools either side) however, the site will now be included in investigations.
Way Forward
*Given the wide spread problem of projectiles thrown onto motorways having the potential to cause serious injury and death, the concept of treating the whole length of a motorway such as proposed for the M4 is seen as the only comprehensive approach. The bridge you don’t treat is the one used by the criminals.
*It is therefore proposed to make a submission to the Federal Government and outline the action taken by the State on the M4 and request funding to treat the bridges on both the F3 and F5 Freeways in the urban areas of Sydney.”
An annexure to the briefing paper informed the Minister:
“During the past year there has been seven incidents known to the RTA where objects have been intentionally thrown from an overbridge onto vehicles travelling beneath. On three occasions motorists in the vehicles were injured. In Victoria in 1994 a motorist was killed in a similar incident.
Police records show a low level of known incidents in the Sydney Region of approximately five per year. More incidents occur outside the urban area. While the Police consider acts of throwing objects onto vehicles a criminal act indications are that most involve opportunistic rather than premeditated behaviour.
In comparison a report from the Chicago area of the US has in one year 600 incidents of objects being thrown from bridges over roads.”
The briefing paper contained an annexure that included the information contained in the document prepared by Mr Dunlop on 12 September 1996 (and the material quoted at para [36] above). It stated that there were a total of 231 bridges over roads in the Sydney region – some of these were pedestrian bridges, and some were road bridges with pedestrian traffic. The Minister was informed:
“The general consensus is that the highest risk occurs with bridges over high speed, restricted access roads. On the F3 freeway, the M4 Motorway and the F5 Freeway (excluding the Tollway) there are 43 bridges to be treated.”
The Chief Executive expressed the view that, of possible solutions:
“The use of advertising, press releases or community involvement has not been considered suitable due to the risk that such actions could increase awareness of the activity and actually promote missile throwing. Similarly, erection of signs warning of the danger and criminal penalties is considered counter productive.
Increased surveillance is considered impractical at the sites nominated. The Police are unable to provide increased resources, which being intermittent are usually ineffective. Cameras and security patrols are expensive for a very infrequent occurrence.
The preferred treatment to reduce the hazard is the erection of physical barriers on the bridges. These barriers are to either prevent or restrict missiles from being dropped or thrown. To enable an assessment of the cost and effectiveness of physical barriers four bridges were selected from the candidate ten for concept design and cost estimates.”
The current programme was explained as follows:
“The need exists to reduce the risk on the outer urban freeways and Motorways by the erection of fencing on all overbridges. Currently four bridges have been chosen on the M4 Motorway and the F3 Freeway as having the greatest likelihood of being an incident site. Attached are concept designs for the four bridges under consideration. The treatment for these four bridges involves erection of an enclosure along each side of the bridge at the existing handrails. The concept designs for the addition of an enclosure on each bridge has attempted to complement the existing design, to reduce any aesthetic effects.
The program of works on each bridge allows for architectural concept design, a review of environmental factors and possibly community consultation, prior to construction. It is expected that the four bridges currently in design will be completed during 1995/96, with the remaining 39 bridges on the outer urban freeways and motorways to be completed in 1996/97. The estimated costs of these barriers and enclosures are $50,000 per bridge, with a total cost for the 43 bridges of $2.2M.”
In February 1996, the RTA sent to the Commonwealth Department of Transport its forward strategy report for 1996/97 to 2000/01. It proposed total expenditure in NSW over those five years on National Highway roads of $1,795,666,000. The RTA sought $336m in 1996/97, by comparison with the $299m that the Commonwealth had made available in 1995/96. The detailed listing of work proposed in that five-year period included nothing about bridge protection fencing.
The New South Wales Minister for Roads wrote to the Commonwealth Minister for Transport and Regional Development, the Hon J Sharp MP, on 30 April 1996 stating that there had been “a number of serious incidents in Sydney over the past two years where motorists have been injured by projectiles thrown or dropped from overbridges”, referring to the death from such an incident in Victoria in 1994, and stating that to reduce the hazard to vehicles from objects dropped from overbridges “it is proposed to erect fencing along the outer side of all bridges over high speed urban areas”. The letter concluded:
“There are 13 bridges on the F3 Freeway and 8 bridges on the F5 Freeway requiring treatment. The expected total cost of the fencing project is $1.1M at $50,000 per bridge. It is proposed that the work be carried out in 1996/97. For your information the State Government has allocated $1M for similar work on the M4 Motorway in Sydney.
My purpose in writing is to seek your concurrence to the proposed bridge fencing and to seek funding under the National Highways Program during 1996/97.”
Though the eight bridges on the F5 were not specifically identified, I would infer that they were the eight bridges I have listed at para [22] above, and thus included the Glenlee Bridge.
On 19 June 1996 Mr Sharp wrote to Mr Knight, referring to his letter of 30 April 1996, and saying:
“I agree there is a serious safety risk of projectiles being thrown from bridges onto heavily trafficked roads and that providing fencing is the best preventative measure. I shall be happy to consider such safety works in the context of developing the 1996/97 National Highway program.”
There had been a change of federal government following the election in March 1996. This resulted in the Federal Budget relating to 1996/97 being delayed past the usual May date. On 20 August 1996 Mr Sharp wrote to Mr Knight advising of the Commonwealth 1996/97 budget decisions concerning road funding. Mr Sharp advised that in 1996/97 New South Wales would receive $306.7m. That figure of $306.7m included a line item of $27.36m for safety and urgent minor works. (The body of Mr Sharp’s letter said that $64m would be allocated for safety and urgent minor works, but that was inconsistent with a detailed table that accompanied the letter that showed $27.36m being allocated for safety and urgent minor works. All subsequent correspondence is consistent with the figure of $64m being a typographical error, and the real figure being $27.36m.) Mr Sharp said:
“The safety and urgent minor works component, however, will be administered through the normal program approval process and, accordingly, I request submission of your proposals for funding as soon as possible.”
In other words, even though the budget made provision of $27.36m for safety and urgent minor works in New South Wales, the breakdown of that sum into specific projects was not part of the budget, and was to be decided separately.
On 21 November 1996 the Assistant Secretary of the Commonwealth Department of Transport and Regional Development wrote to the Chief Executive of the RTA informing him of the allocation for construction and maintenance funding for 1996/97, and providing a list of project allocations for several large construction works. The letter stated that the next federal budget would be in May 1997. The list of project allocations in the letter showed that $27.36m was allotted for safety and urgent minor works in 1996/97, but the letter did not break that sum up to identify any specific projects, or types of project. It foreshadowed that the federal funding available for safety and urgent minor works would decrease in future years. The foreshadowed decreases were to $25.99 million in 1997/98, $24.62 million in 1998/99, and $23.26 million in 1999/2000.
On 5 February 1997 the New South Wales Minister (by now the Hon Carl Scully MP) wrote to the federal minister, referring to the budget advice that New South Wales would receive $27.36m in 1996/97 for safety and urgent minor works, and the budget advice about indicative Commonwealth funding for the forward three years 1997/98 to 1999/00. The letter attached a schedule reviewing the safety and urgent minor works component of the National Highways forward strategy to reflect that budget advice and indicative forward funding. It sought confirmation that the proposed use of the $27.36m in 1996/97 was acceptable.
The attached schedule showed (accurately) that nothing had been proposed for overhead bridges protection screening in the forward strategy for 1996/97. It showed that it was still the case that nothing was proposed to be spent for overhead bridges protection screening in 1996/97. It showed that a total of $1.05m was proposed to be spent on bridge screening in 1997/98, made up of $650,000 for expenditure on 13 bridges on the F3, and $400,000 for expenditure on eight bridges on the Hume Highway. Again the document does not identify the eight bridges on the Hume Highway, but I would infer that they included the Glenlee Bridge.
On 27 March 1997, Mr Sharp wrote to Mr Scully referring to his letter of 5 February 1997, and approving the proposed works for the 1996/97 year, to a limit of $26.725m.
In March 1997 the RTA submitted its forward strategy report to the Federal Department, relating to the years 1997/98 to 2001/02. The report included:
“The New South Wales National Highways Forward Strategy for 1997/98 to 2001/02 has been developed within the context of funding advice provided in November 1996 by the Federal Department of Transport and Regional Development. This advice provided future funding profiles for major works, maintenance and safety and urgent minor works. The focus of this advice was a five percent per year reduction in maintenance funding over four years, to achieve a 20 percent ‘efficiency dividend’, and reduced funding for safety and urgent minor works.
The priorities of this Forward Strategy are to:
complete works in progress,
commence and/or complete a limited number of new high priority works, and
maintain National Highways system assets.
…
Previous NSW National Highways Forward Strategies identified a number of major and minor works which, under the funding levels proposed, will not be able to be undertaken within the five year period of this Strategy.
NSW seeks funding in 1997/8 of $293M and an average allocation of $302M (including administration costs) per year over the next five years (dollar values expressed in 1996/97 terms). These levels of funding are considerably less than those sought in previous Forward Strategies and reflect advice received from the Federal Department of Transport and Regional Development referred to earlier.”
The detailed listing of proposed works included $1.05m proposed in 1997/98 for bridge protection fencing. The inference is that this figure related to 21 bridges, at $50,000 each. Thus, it sought to cover all eight bridges on the F5, and all 13 bridges on the F3, but did not reflect a revised costing of $70,000 per bridge that the RTA came to adopt around this time or soon after.
Mr Neil Forrest was the RTA’s Road Asset Manager, Sydney Region. Mr Rod Carter was the Network and Road Safety Manager for the RTA. On 13 April 1997 Mr Sivarasa sent a memo to Mr Forrest and Mr Carter, reporting that the RTA’s study had identified 22 bridges over the M4, 13 bridges over the F3 and 8 over the F5 as having the highest priority for treatment. He stated that the Federal Government had agreed to provide $1.1m in 1997/98 to cover the 21 bridges on the F3 and F5. His statement of the current position included:
“Cost of screening of bridges has escalated to $70,000. Only 15 of the 21 bridges in F3 and F5 can be screened during 1997/98. Federal Government will be approached to fund the remaining six bridges in 1998/99. However these six bridges have low priority for treatment …”
His recommendation was:
“The problem of projectiles being thrown from bridges onto motorists was clearly demonstrated by incidents in 1996. Given the media attention to these issue[s] at the time it is recommended that the program of retro fitting screens to the 55 bridges already identified on high speed roads should continue.
The program of works on each bridge allows for architectural concept design, a review of environmental factors and community consultation prior to construction. The estimated cost of these barriers and enclosures is $70,000 per bridge, with the total cost for 55 bridges of $3.85M. It is proposed the work be staged over a 5 year period with 10-12 bridges being treated annually.”
On 30 April 1997, Mr Forward, the Director of Road Network Infrastructure of the RTA, wrote to the Assistant Secretary of the federal department, providing requested information concerning monthly cash requirements for 1996/97 for each federally funded project. It stated:
“The end June forecast for safety/minor works is for an under-expenditure of $5.5M (20%). This is largely due to the delay in obtaining approval to the safety/minor works program, particularly the four overtaking lanes and the Chelmsford Drive/Metford Road improvements on the New England Highway in the Hunter which comprise 30% of the program. Attached is a schedule of works (one page) to address this shortfall, involving bringing forward works from 1997/98 and introducing additional works. Approval to proceed with these works is requested as soon as possible in order to expend the funds.”
The attached schedule of work listed various safety and minor works projects, of a total estimated value of $5.49m, beyond the expenditure that had initially been proposed for safety and minor works for 1996/97. In other words, it proposed alternative uses for nearly the whole of the expected under-expenditure. Included in that list was $50,000 for overhead bridges protection screening for the Hume Highway, and another $50,000 for work of that type on the F3. The “comments” concerning each of those items was:
“Bring forward commencement from 97/98. Federal Minister’s letter 19/6/96 refers (copy attached).” (That letter is at para [52] above.)
On 9 May 1997 the Commonwealth department approved the additional safety and urgent minor works that the RTA had requested on 30 April 1997.
Mr Vivian Manwaring was at the relevant time a Senior Capital Works Programmer with the RTA. In that position he was involved with the delivering of major projects that were funded by the Federal Government. On 12 May 1997, Mr Manwaring emailed various people in the RTA, saying:
“Further to my fax last week about noise abatement works on the National Highway, DoTRD has today approved the following works for 96/97 to try and address under-expenditure:
*Noise wall Hume Hwy Lachalsh to Raby St Andrews $1,000,000
*Noise wall Cumberland Hwy OWR near Christine St Northmead $220,000
*Hume Hwy screening of overhead bridges (proj 65540/1) $50,000
*F3 screening of overhead bridges (proj 65540/2) $50,000
Please proceed with these projects to expend as much funds as possible this financial year.”
(DoTRD is the Commonwealth Department of Transport and Regional Development.)
On 14 May 1997, Mr Piper emailed Mr Allan Procter, saying:
“An approved allocation for 1997/98 of $1.05M exists under National Highways funding for screening of bridges on Hume Freeway [sic] and Sydney-Newcastle Freeway within Sydney Region.
The opportunity exists, if funds are available, to spend up to $150,000 this financial year, on procurement of stores for this project. Do you approve?”
On 26 May 1997 Mr Procter emailed Mr Manwaring about that request, saying:
“I have no objection – depends on your other moves to balance money?”
Later on 26 May 1997, Mr Manwaring emailed Mr Piper, saying:
“Allan, as discussed today, please proceed with procurement. 96/97 National Hwys safety & minor works program is underspent, and the Feds have approved an early start to this bridge screening in 96/97.
96/97 program is underspent because of late approval to proceed with works. This means, of course, a squeeze on 97/98 program due to carryovers and no additional Fed funds.
Consequently, after doing some number crunching this morning, I anticipate that 97/98 $1.05M for this bridge screening will have to be reduced to around $0.3M to $0.4M with the rest in 1998/99. This means treating around 6 to 8 bridges in 97/98.
I anticipate a detailed review, in liaison with Regions, next month. We won’t get Fed advice on program allocations for 97/98 and forward years until mid-June.”

Still later on 26 May 1997 Mr Piper emailed Mr Sivarasa:
“Siva, please advise all bridges in priority, with cumulative $s.
Procure as much materials as possible this year, even if we have to then store them for a year. Don’t treat $150k as a limit on this year’s expenditure.”
On 4 July 1997, Mr Manwaring emailed a large number of RTA staff:
“I thank, and congratulate, everyone involved in National Highways Safety & Minor Works in [1996/97*]. We achieved expenditure of $24.1M against the Federal allocation of $27.36M despite the fact that Federal approval to the Works did not occur until 27 March 1997 (and some supplementary Works in May 1997).
In the circumstances, this was an excellent effort.
Unfortunately however, there will be significant carryover of Works to 1997/98. Accordingly I request that Regional ‘bids’ for National Highways Safety & Minor Works for 1997/98 and the following five years (ie 1998/99 – 2002/03 inclusive) be forwarded to me in three separate schedules as follows:
1.Works physically commenced which require continued funding in 1997/98.
2.Works committed in 1997/98 but not physically commenced (nature of commitment to be stated, but ‘included in Electorate Statement’ will be insufficient justification).
3.Works desired (ie not physically commenced or committed) preferably ranked in Regional priority.”
(*Date as corrected by Mr Manwaring tp 633.)
Thus, the RTA had not spent $3.26m of the amount that had been allocated by the federal government for the 1996/97 year. However, that did not mean that the RTA could spend that $3.26m in the following year. There is uncontested evidence from Mr Manwaring that if the federal funding attributed to a particular year was not spent it would lapse. The manner in which federal funding took place was that it was not paid to the State in advance, but rather the State was “paid on actual expenditures each month”.
Mr Procter’s reply to Mr Manwaring on 10 July 1997, included:
“Not sure that ‘2’ should exclude electorate statement jobs; there is a view here that these must now be seen as govt ‘promises’ to members & should be delivered unless clearly impossible or member agrees with a substitution.”
Mr Manwaring replied to Mr Procter later on 10 July, saying:
“I acknowledge your comment re electorate statement jobs and agree … it will be impossible to deliver all of those in 97/98 [National Highway] Safety & Minor Works because there is something like $6.5M in carryover works from 96/97 into $26M available in 97/98.
To further compound this funding problem, there is [a railway level crossing] on the Newell Hwy north of Moree where there has been two fatals in the last month. Lew Lang has been dealing with this problem and flashing lights/bells must be installed in 97/98 to appease the community. This was unplanned, and will cost around $300,000 to $400,000.
Mr Manwaring explained the significance for the budgeting process of “carry-overs” as being:
“The first call on the next year’s funds is to complete projects that have started – physically started – and therefore need to be finished, or were supposed to have started and for some reason haven’t, and therefore they have a commitment from the previous year. And with a late start to the approved works, unfortunately some of that cost translated over into the next financial year which had not been factored in when the program originally went to Canberra. Therefore, with additional funds being required for the next year to complete those started works, or committed works, but the total funds available not expected to increase, that means the funds allocated to projects will have to move to accommodate that anticipated additional funds required.”
In the meantime, the RTA was taking some statutorily required preliminary steps to fencing any overpasses.
The RTA has obligations under section 111 of the Environmental Planning and Assessment Act 1979 to examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of its activity. In particular, it is obliged, by section 112 of that Act, to prepare an Environmental Impact Statement (“EIS”) before commencing an activity that is likely to significantly affect the environment (including critical habitat) or threatened species, populations or ecological communities, or their habitats. The way in which the authority decides whether a proposed activity is one for which an EIS must be prepared is by carrying out a study called a Review of Environmental Factors (“REF”). Factors to be addressed by a REF were listed in clause 82 of the Environmental Planning and Assessment Regulation 1994.
A document in evidence explained that a REF:
“… is an environmental impact assessment document which identifies examines and assesses the likely environmental impacts of a proposal. The REF is assessed to determine if those impacts are likely to be significant and hence whether an EIS is required.”
In May 1997, Mr Terry McCoy, who was the Project Manager of Environmental Services with the RTA, provided a proposal to prepare 20 REFs for proposed screens on pedestrian bridges and overbridges on the M5, SH13 and F3. By the time Mr McCoy commenced preparation of those reports, on 2 June 1997, the Glenlee Road Bridge had become one of the bridges he was to review.
On 10 June 1997, Mr McCoy wrote to the Campbelltown City Council informing it that the RTA was proposing to erect screens on the eight bridges over the Hume Highway. The Glenlee Bridge was specifically identified as one of those bridges.
The REF relating to the Glenlee Bridge was completed by 1 August 1997. It identified the period of construction of screening on the bridge as being 10 to 14 days, and identified that the work would commence “Within 1997-1998 financial year when funds become available.” As a result of the REF it was decided that a full EIS was not needed.
Mr Alex Jugueta was an RTA Project Manager. On 16 October 1997, Mr Jugueta prepared a summary for Mr Sivarasa of the contracts already awarded concerning the overbridge screening project on federal roads. There were six contracts awarded, relating to the environmental study, design, purchase of materials, and installation at both St Andrews Road and Raby Road on the F5. The total obligation pursuant to those contracts was $260,862, of which $24,875 had been expended during 1996/97. That left $235,987 that had already been committed for those two bridges alone. The allocation for the entire project of screening overhead bridges for 1997/98 was $370,000. I infer that by this time the “around $0.3M to $0.4M” that Mr Manwaring had estimated on 26 May 1997 as being available for bridge screening in 1997/98 had firmed to a figure of $370,000. Thus, a balance of $134,013 was available in 1997/98 to carry out bridge screening work that had not already been committed.
Mr Manwaring explained why it was that the amount available for bridge screening was reduced in the 1997/98 year from $1.05m to $370,000:
“… some projects, once they’re started you can’t break it up into sections – such as an overtaking lane. Once you start, you must build it in its entirety. An intersection that requires traffic signals, you must do it in its entirety, you can’t do part. Whereas some projects, for example bridge screening, it is composed of a number of discrete bridges, therefore you could do some and defer others.”
Mr Jugueta wrote to Campbelltown council on 28 October 1997, reporting that installation of overhead screens for St Andrews Road and Raby Road was substantially complete, and that installation of overhead screens for the Campbelltown Road bridge at Glenfield was scheduled for completion by the end of November 1997. That latter remark does not appear to take into account the budget pruning process that was underway within the RTA, and had already resulted in a reduction of the funds available for bridge screening.
On 23 October 1997 the Chief Executive of the RTA sent a submission to the New South Wales Minister concerning the National Highways safety and urgent minor works review. It referred to the fact that $25.99m had been allocated as the New South Wales amount for safety and urgent minor works in 1997/98, and that the works proposed for 1997/98 had been reviewed, taking into account carry over works from 1996/97. He explained that the strategy taken for 1997/98 was:
“1.complete works in progress – $12.62 million or 49% of funds;
2. continue works in progress – $3.16 million or 12% of funds;
3.include projects committed by the State or Federal Governments (eg Newell Hwy Coolbaggie Creek and Billabong Creek bridges replacement, Newell Hwy overtaking lane 120km north Moree, Newell Hwy Mirrool rail level crossing advance signals, Newell Hwy Camurra rail level crossing signals where recent fatalities have occurred, F3 Cooranbong noise walls, New England Hwy Arthur Street Rutherford traffic signals, Hume and Federal Hwy ‘Remembrance Driveway’ plantings/signs/rest areas upgrading) – $6.79 million or 26% of funds; and
4.include other high priority works (eg Newell Hwy Alleena rail level crossing signals, Newell Hwy Forbes and Parkes heavy vehicle bypass intersections improvement, Newell Hwy various overtaking lanes and rest areas, New England Hwy Blandford School safety improvements) – $3.42 million or 13% of funds.”
He stated:
“$8.71 million of the $12.62 million to complete works in progress (item 1 above) is for unscheduled carryover works from 1996/97. this is due to late starts in 1996/97 on seven projects [which he listed].
Late starts on these projects resulted from the 1996/97 program not being approved until 27 March 1997.”:
The Chief Executive included a draft letter for the Minister to send to the Federal Minister.
Mr Scully wrote on 24 November 1997 to the then Federal Minister, the Hon Mark Vaile MP. He enclosed a schedule of safety and urgent minor works to reflect the budget advice and indicative forward funding. That schedule totalled $25.99m for 1997/98. He sought the Federal Minister’s confirmation that the proposed use of that $25.99m was acceptable.
The enclosed schedule, insofar as it related to overhead bridge protection screening, noted that $400,000 had been listed in the forward strategy for 1997/98 relating to the Hume Highway, and $650,000 relating to the F3, that the amounts now proposed for 1997/98 were $140,000 relating to the Hume Highway, and $230,000 relating to the F3 (which I interpolate totals the $370,000 that Mr Jugeuta had referred to on 16 October 1997), that expenditure in 1998/99 was proposed to be $450,000 for the Hume Highway, and $220,000 for the F3, and that the 1997/98 would allow two bridges to be screened on the Hume Highway and three bridges screened on the F3.
On 19 December 1997, Mr Vaile wrote to Mr Scully approving the requested manner of expenditure of the $25.99m.
In March 1998, the RTA forwarded to the Commonwealth Department a revised forward strategy report concerning the National Highways program, for the years 1998/99 to 2002/03. The detailed listing of works continued to show two items totalling $370,000 as estimated expenditure in 1997/98 for overhead bridge protection screening, and two items totalling $670,000 as the estimated expenditure for that item in 1998/99.
The Federal Budget was delivered on 12 May 1998, and included an amount of $24.62m allotted for safety and urgent minor works in New South Wales on the National Highway.
On 25 May 1998 Mr Onggo emailed Mr Sivarasa seeking confirmation “that the proposed funding for the F3/F5 bridge screening is still $670k”. Mr Sivarasa passed that question to Mr Manwaring, who replied, later on 25 May 1998:
“Siva, at present there is $670k of Fed funds earmarked to continue bridge screening in 98/99. However, with Regions/Sydney Ops, I will be undertaking a review of National Hwys Safety/Urgent Minor Works Program (the funding source) in July to take account of any carryovers and possible changed priorities. Until that exercise is completed, I can’t guarantee all the $670k.”
A monthly status report summary, as at 31 May 1998, for the screens on overhead bridges on National Highways projects stated that the allocation for the current year was $370,000, and expenditure to date in the current year was $398,000. It stated:
“Construction for this financial year is complete. Detailed design for next year’s work to commence in July 98. Further work will depend on availability of funds.”
As at 30 June 1998, the situation remained that the approved allocation for the financial year was $370,000, and actual expenditure as at 30 June 1998 was $398,000. By 30 June 1998 three bridges over the F5 had been screened, namely those at Campbelltown Road, Prestons, St Andrews Road and Raby Road.
On 10 July 1998 Mr Dunlop prepared a memorandum for Mr Carter concerning the status of the screening project. It recorded that the Federal Government had agreed to provide $370,000 in 1997/98 to cover five bridges on the F3 and F5. The cost per bridge had risen to $75,000 per bridge.
Mr Dunlop summarised the current position concerning screening of bridges over all roads for which the RTA had responsibility as follows:
“National Freeways
*$670,000 has been allocated in 1998/99 to cover nine bridges on National roads. No funding has been provided for the remaining eight bridges.
State Freeways
*12 bridges have been completed in M4. A further two bridges will be completed before the end of the 1997/98 financial year. 4 bridges have been programmed to complete in 1998/99. Funding required for 3 bridges. 12 bridges have been identified over M5 which could be fenced. No funding has been requested to date.
National Highways
*8 bridges have been identified over the Cumberland Hwy which could be fenced. No funding has been requested to date, yet all of these bridges have high risk assessment.
State Highways
*The risk study was extended to overbridges on State Roads having speed limits of 80km/h or over in the Region. The outcome of the study was the identification of 41 bridges which have a significant potential risk.
*Please see the attached evaluation matrix for priority ranking.
*During 1996-1998 there were two incidents reported on the State Road at Parramatta Road Forest Lodge and the Western Freeway near Homebush, where a rock was dropped on a vehicle, without injury to occupants. Homebush incident occurred on 24 April 1998.
*There have been no incidents reported from bridges where fencing has been erected.”
Thus, Mr Carter identified 87 bridges over roads that were unfenced. The options that Mr Carter listed included:
“a)Do nothing further.
This option assumes either the public will not be tempted to drop further items or that the worst cases have been treated.
As there has been no media campaign or other efforts to change public opinion the former is unlikely. For the latter the bridges remaining on the F3, M4 and F5 have the same level of risk as the bridges previously treated and hence the worst cases have not yet been treated.
b) Treat Outer Urban Freeway
This would complete the fencing of the bridges in the worst risk categories. We have required all bridges in the F3, M4, M5 and SH2 to be fenced to remove this case of risk.”
His recommendations included:
“The problem of projectiles being thrown from bridges onto motorists was clearly demonstrated by incidents in 1995 and 1996. It is expected that the problem will not go away and the RTA should protect motorists to a reasonable level. Given the continuing risk and the media attention to these issues at the time it is recommended that the program of retro fitting screens to the higher risk bridges already identified on high speed roads should continue.
The recommended program will be to treat approximately 13 bridges per annum, ie $1.0M, on the State Network and to request similar funding from the Federal Government. This program would, commencing 1998/99, complete the State outer freeways in 1998/99, National Highway in 2000/01 and remainder of the State Network for bridges (80km/h and over) in 2002/03. (Funding proposal attached).”
The forward estimates for 1998/99 showed total amounts that would have resulted in six of the nine bridges proposed for 1998/99 being on the F5, and the remaining three on the F3. There is an unexplained puzzle with these figures, as there were only eight relevant bridges on the F5, and three of them had already been screened by that stage.
A project status report as at 31 July 1998 identified the allocations for the current year as “not known”. It reported “Design work commencing on Monday 17 Aug 98 for Glenlee and Menangle Bridges.”
Acceleration of the Screening Program
On the night of Sunday 9 August 1998, rocks were dropped from three separate bridges over the F5 in the Campbelltown area, including the Glenlee Bridge. One of the bridges from which rocks were dropped, the St Andrews Bridge, was one that had already been screened.
On the night of 10 August 1998 there was another incident in which a rock was dropped from the Glenlee Bridge.
On 11 August 1998 Mr Dunlop emailed various RTA officials, reporting on these facts, and saying:
“1.Fence the bridges down there immediately. They were to have been done last year but Feds reduced funding. I have advised RNI today that we will not wait until funding approved, currently under review, but we will do what is needed now and then find money from where ever.
2.Police are not reporting incidents. We have only found out about the extent of Sunday’s incidents this morning. We will contact senior Police in Campbelltown area for better feedback …”
Design work commenced on 17 August 1998 for the fencing of the Glenlee and Menangle Bridges.
By 31 August 1998 investigation and design work was complete for the Glenlee Bridge, and by mid October 1998 the screening had actually been completed. It happened too late to protect Mr Evans, who had been killed on 23 August 1998.
The Alleged Acts of Negligence
The acts of negligence alleged against the RTA in the Statement of Claim were:
“(a)Exposing 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)Failing to instal[l] a barrier, fence guard or other appropriate structure to prevent or inhibit things falling or being thrown to the highway below.
(c)Failing to properly inspect the area and detect the dangers presented by an unfenced overhead bridge.
(d)Constructing or otherwise allowing the bridge to be constructed without barriers, fencing or guard rails.
(e)Failing to take any or any adequate steps to deter people from throwing things off the bridge.
(f)Failing to take any or any adequate steps to ensure the safety of motorists travelling on the highway below the bridge.
(g)Failing to have in place any system for detecting persons throwing things from the bridge.”
ISSUE 1 – DUTY OF CARE OWED BY RTA?
Statutory Duties and Powers of RTA
The RTA is a corporation created by section 46 Transport Administration Act 1988.
Under section 7 Roads Act 1993 the RTA is “the roads authority for all freeways”. It is common ground that the F5 is a public road, and a freeway within the meaning of section 7. The case has been conducted on the basis that the RTA’s powers and responsibilities concerning the F5 extend to the Glenlee Bridge.
Section 145(1) Roads Act provides that all freeways are vested in fee simple in the RTA.
Section 146(1) Roads Act provides:
“Nature of ownership of public roads
(1)Except as otherwise provided by this Act, the dedication of land as a public road:
(a)does not impose any liability on the owner of the road that the owner would not have if the owner were merely a person having the care, control and management of the road, and
…
(d)does not constitute the owner of the road as an occupier of the land …”

Concerning each of those risk factors, a priority rating was allocated, attributing a numerical value to the importance of the risk factor. Concerning each of the risk factors, various measures of the extent to which that factor was present were identified, and a numerical value given to each of those measures of extent. For example, concerning the risk factor of pedestrian access, measures of extent of “no access” (given a rating zero), “shared with motorist” (given a rating of 8) and “pedestrians only” (given a rating of 10) were identified. All the bridges being ranked in order of priority were inspected individually, and evaluated against the risk assessment criteria. In the course of evaluating a particular bridge, if there was pedestrian access shared with a motorist, a score of 80 (obtained from multiplying the priority rating of 10, and the measure of the extent to which the factor was present of 8) would be allocated to the risk factor concerning pedestrian access. That process was repeated in relation to each of the risk factors, and an overall score obtained for the particular bridge. The bridges so evaluated were then listed in order in an evaluation matrix, so that the bridge with the highest assessed risk was at the top of the list, and the bridge with the lowest assessed risk was at the bottom.
In developing the evaluation matrix, Mr Onggo made enquiries of the Victorian and Queensland road authorities, and the New South Wales railway authority, to find out whether they had any method of prioritising screening of bridges, but they had no such methods. The evidence has not identified any publications in the professional literature of any such methods, or established that there were any people who had expertise concerning that topic. While the 1969 American publication does not go so far as to state a method for prioritising screening, it identifies some risk factors (para [149] above), the substance of which have been taken account of in Mr Onggo’s methodology.
Various overbridges that the RTA was considering screening were evaluated in accordance with that risk assessment, and an order of priority was produced for the screening of those bridges. In one version of the evaluation matrix dated 14 March 1997 the Glenlee Bridge was accorded priority number 36 out of a total of 77 bridges. In another version of the evaluation matrix dated 25 May 1998 – the last produced before Mr Evans’ death – it was accorded priority number 42 out of 84 bridges.
In assessment of the Glenlee Bridge, it had been rated as having no pedestrian access. Mr Onggo said this was because the way the methodology worked was that “pedestrian access” required there to be a walkway or footpath for pedestrians, not merely that pedestrians were physically capable of crossing the bridge by walking on the road. He explained that the risk being evaluated by the risk assessment survey was the risk of spur of the moment or opportunistic launching of objects from bridges, not planned ones.
Another feature of the application of the evaluation matrix to the Glenlee Bridge was that it was given a score of zero for “history of incidents/graffiti”. It was given that score because Mr Onggo was not aware of the previous incidents that had occurred when objects were dropped from the bridge. If the rating attributed to the Glenlee Bridge were adjusted to take account of there having been previous incidents, and no other change to the evaluation matrix were made, the Glenlee Bridge would have advanced to number 22 in priority. That calculation was done on the basis that Mr Onggo had adopted when compiling the matrix, that prior incidents without graffiti would result in a score of 6. He accepted in cross-examination that if, contrary to the methodology he had actually adopted, prior history resulted in a score of 10 on that variable, and no other change was made to the evaluation matrix, the Glenlee Bridge would have risen in priority to be between 16 and 17.
The Additional Particular of Negligence
In the course of the appeal, the Respondent sought to add a further particular of negligence, namely:
“(h)Failing to properly determine the rating of the Glenlee Bridge in its risk assessment, in that:
(i)It failed to categorise the bridge as being a bridge affording shared access to motorists and pedestrians;
(ii)It failed to characterise the bridge’s comparative isolation as indicative of a higher risk of objects being thrown or dropped from it;
(iii)It failed to appreciate and have regard to the history of objects being dropped from bridges in the Campbelltown area and the Glenlee Bridge in particular.”
The plaintiff had obtained a large volume of material from the RTA on subpoena prior to the hearing. It had supplied the risk assessment summary and evaluation matrix by which the screening of bridges was prioritised to its expert, Mr Jamieson. He annexed them to his first report. In the body of his report, Mr Jamieson identified the 11 individual risk factors, and commented:
“It is not known on what basis these individual ‘risk factors’ were identified, noting that the frequency of such behaviour is relatively rare. That is, there was probably no opportunity for the RTA contractors to analyse any significant number of past incidents to determine a data-based list of potential factors. Therefore the list was possibly derived from subjective assessments.
…
The key issue arising from this methodology concerns the scoring of each individual site – and its resultant prioritising. For example, a site can score ‘20’ because of its proximity to a school and ‘youth attraction’. Such a site may eventually score higher than an isolated site, and its ultimate priority for rectification would be high.
This example ‘risk factor’ involving schools presupposes a process or sequence of events that involves school children throwing objects off bridges while walking to or from school in broad daylight. While the detail of previous incidents is not known, subjectively, it is considered unlikely that such a possible scenario should receive any significant weight.
An alternative, more likely process leading to concrete being dropped from a bridge, would be one which occurs at locations away from prying eyes, ie under cover of darkness at remote and isolated locations.
While it is beyond the scope of this current report to propose an alternative risk assessment, with an alternative list of potential risk factors, it would appear on analysing the present material (particularly documents C5 and C6) that the prioritising of these bridge rectifications would not seem to be based on any “formal” Risk Engineering principals [sic] (at least not those presented in the literature). Rather, the prioritising seemed to be based on a more subjective process.
If a more formal risk analysis process had been applied, the identified ‘risk factors’ probably would have been different. The review of the papers shown in Appendix C, suggests that the Glenlee Bridge probably should have been given a higher score than it eventually received (handicapped as it was for not being near a school). It follows that a higher score would have increased its rectification priority.
It should be emphasised that these comments are not taken in ‘20-20 hindsight’, but rather from a risk engineering viewpoint which should take into account risk factors arising from a formal analysis of the phenomenon involved.”
Comparatively early in the first day of the trial Mr Jamieson’s report was tendered. Counsel for the RTA objected to the expressions of opinion relating to the evaluation matrix. In the course of dealing with that objection, the judge enquired whether he was going to be getting evidence from the defendant from engineers about risk assessment. Counsel for the RTA said that Mr Onggo would be called as a witness and would explain how the order of priority was established. The judge allowed Mr Jamieson’s evidence.
Mr Jamieson was cross-examined about his opinion that the Glenlee Bridge should have been placed higher in the order of priority of bridges. He agreed that seeking to prioritise bridges by reference to risk factors was “a rational practice”. His cross-examination on that topic included:
“A.My – admittedly – unsophisticated view, and commonsense could be a wise – just because it was near a school didn’t necessarily make it a higher risk location given the school kids walk backwards and forwards at school in broad daylight presumably around traffic.
Q.Isn’t it the case that we are just in the area of speculation? Could I not put that to you in response. There are different types of rock dropping; all of them potentially lethal. A brick only needs to hit a windscreen to cause a windscreen to shatter, to cause a fatal accident. And so if we have one form of accident which is the type that occurred in this particular case, where bricks are loaded – rocks are loaded into the back of a vehicle and driven some distance to a site, one might well say of the second part – that is the part we’ve just described – that’s more likely to happen at an isolated location. And the reasons you’d say that would be that the felons would know they had a vehicle; they had the rocks in the boot of the vehicle; they would need to go to an isolated place and they would be better able to escape detection as they went through the process of parking the vehicle, opening the boot, taking the rocks out, moving to the freeway and dropping them. So for that type of criminal the isolated location is attractive, I take it; that it would be consistent with what you said.
A.Of course it is, but I’m – yet again, these are commonsensical matters I would have thought.
…
Q.My submission to you which I’d like you to agree with is that it’s a commonsense matter about which Mr Sheldon or his Honour or myself could form a view as to the correctness or otherwise of what I’ve just put too you.
A.Well, I can agree with you, and that’s why the risk matrix as I reviewed perplexed me so much.”
The cross-examiner put to Mr Jamieson that, by comparison with that situation, a child showing off to friends on the way home from school could just as easily toss an object over the side of the bridge:
“Q.If the child had a box in its hand, a lunchbox or any form of heavy object – a cricket ball that he’d taken from school – there’s your object, and there’s your numbers.
A. Of course you’re right.
Q.Mr Jamieson, there are your numbers to lead the author of this document to say, ‘Let’s lift the profile – let’s lift in priority places that are near schools.’ Would there not be rational ground for saying, ‘We’ve got to take this into account in determining where we give the weight’?
A.I’d agree with you so far as to say yes, schools should be in the equation in a matrix, but to give them a score of 10 to me gives them an unfair weight for potential exposure to risk.
Q.You see, when it comes to your expressing that view, ‘I think isolated is more risky than populated’, if I can put it in those categories, your own view about it, but not an engineer’s view.
A.Well, both decisions – sorry, both points of view could be considered as non-enduring view.”
In the course of cross-examination, Mr Onggo had put to him the propositions that his evaluation matrix had proceeded erroneously by failing to recognise that the Glenlee Bridge had a history of incidents, and by failing to categorise it as a bridge with pedestrian access. In substance he accepted the first of these propositions, but not the second – see para [413]-[414] above. He also had put to him that the evaluation matrix itself was flawed because it failed to recognise that a bridge with very little traffic on it and away from the public view would be the very place that people minded to drop rocks onto vehicles on freeways would choose, rather than somewhere that was near a public facility like a school or hotel. He did not accept that proposition.
Counsel addressed on those topics. The judge made findings, in para [60], (19), and (20) of his reasons (set out at para [189] above) concerning the inadequacy of the methodology.
In my view, the additional particular of negligence was litigated at the trial. The Respondent should be permitted to amend its Statement of Claim to add that particular of negligence, and to rely on it in the appeal.
The Judge’s Findings about the Evaluation Process
The judge said, at [46], that the evaluation matrix:
“… gave the Glenlee Bridge a priority rating of 42 out of 84 bridges for screening as at the last modification on 25 May 1998. It may be interpolated, on my calculations, that if the Glenlee Bridge (as suggested by the plaintiff) had been given appropriate scores for the two criteria [of no pedestrian access and no history of prior incidents] rather than zero then its priority rating would have been raised to at least position 10 on the evaluation matrix.”
He continued, at [46]:
“It would seem, perhaps curiously in light of Mr Dunlop’s earlier view that the highest risks occurred with bridges over high-speed, restricted access roads on the outer urban freeways – very descriptive of the Glenlee Bridge – that those bridges with pedestrian access near schools, hotels or clubs, other pedestrian generators and with exposure to buildings rated a higher priority for screening on Mr Onggo’s evaluation matrix.”
That is a comment, not a finding of negligence.
It was only after making the factual findings in [60] that the judge turned to any comparison of expert evidence in the case. He accepted Mr Jamieson’s criticism of the risk analysis and priority rating exercise “as not being based on any formal risk engineering principles but more on a subjective process by the rater.” His only reference to the RTA’s expert engineering evidence was (at [64]):
“Mr Fishburn presented a very detailed and comprehensive report dated 1 May 2007 in which he attended to financial restrictions placed on the defendant in maintaining and upgrading the F5, the system in place prior to August 1998 for the construction of screens over the F5, the priority system and criteria used, any undue delay in screening and the defendant’s reaction to the dropping of objects from the Glenlee Bridge on 10 August 1998. Mr Fishburn reasoned that the defendant’s risk management technique ‘was a very good method to use’ and that generally its response to the problem was reasonable for a prudent road authority to take. It will be apparent from my findings that I do not accept Mr Fishburn’s views.”
Decision About Negligence in the Evaluation Process
I do not accept that it has been shown that it was more likely than not that the evaluation matrix “was flawed”. Mr Jamieson’s evidence did not explain how such views as he expressed were based upon any established body of knowledge, or on any experience that he had. He ultimately accepted that his view that isolated locations were more risky than populated, and the opposing view that a higher risk should be attributed to areas near schools, could each be open.
I do not accept that it has been established that there was any failure to proceed as a reasonable authority would have proceeded by not treating the Glenlee Bridge as one that had pedestrian access. There was no expert evidence to that effect. The fact that a bridge carries a road over a freeway will always bring about some risk that an object might be dropped from the bridge. That a bridge is included in the evaluation matrix at all recognises that that risk exists. What Mr Onggo’s methodology did, by allocating points to the fact that there was a walkway or footpath for pedestrians, was to evaluate the extra risk that would arise from pedestrians crossing the bridge in the course of their ordinary activities, as they would have a greater tendency to do if the bridge were solely a pedestrian bridge, or a bridge that made special provision for pedestrians to cross it by having a pedestrian walkway on it.
Mr Onggo was wrong in assigning a score of zero to the Glenlee Bridge for “history of incidents/graffiti”.At least a significant part of the history of incidents at that bridge was already contained in the RTA’s files, as the evidence tendered in this case demonstrated. No satisfactory explanation has been given of how it came about that the data that was relevant to the exercise Mr Onggo was undertaking was not collected from the RTA’s own files.
Mr Onggo had embarked upon a task of applying the methodology he and other RTA officers had worked out. This is not a case where negligence is alleged for failure to do something that the RTA could have done, but did not embark on the doing of. Mr Onggo was carrying out this task for the specific purpose of deciding the order in which bridges should be screened, because he and his superiors appreciated that funds were not available to screen all of them at much the same time, that there was a risk of injury or death to motorists, and that the bridges differed in the extent to which they manifested that risk. While the purpose of his task was to provide a rational means of allocating scarce funds, there was no question of competing priorities being involved in the actual carrying out of that task – it was a tedious, but still comparatively simple, matter of data collection and categorisation, followed by arithmetical calculation. It was a task that was clearly within the operational area of the RTA’s activities. For the RTA to fail to take into account, in circumstances that it did not try to explain or justify, data that it already had in its own files amounts in my view to a failure to take reasonable care to protect motorists from the very risk that was the reason why Mr Onggo was doing the task.
As mentioned at para [414] above, if the rating attributed to the Glenlee Bridge were adjusted to take account of there having been previous incidents, and no other change to the evaluation matrix was made, the Glenlee Bridge would have advanced to number 22 in priority.
Mr Maconachie submits that notionally placing the Glenlee Bridge at number 22 in priority through such a process of reasoning would be excessively simplistic. Rather, he submits, once the error in application of Mr Onggo’s methodology was shown, it would be necessary to rework the entire evaluation matrix, to make sure that other bridges were not also advanced in priority in the table. That, he submits, has not been done.
I recognise that such a submission has some theoretical appeal. Before accepting it, one would need to consider how it accords with shifting onuses of adducing evidence. I will not pause to do so. I take that course because, even if the Glenlee Bridge was advanced in priority to number 22 in the evaluation matrix of 25 May 1998, there would still be nine, or possibly ten, federally funded bridges, on the F3 and F5, that were above it in priority.
I express this uncertainty about the number of bridges that would be above it because on a full version of Mr Onggo’s evaluation matrix of 25 May 1998 something identified as “Rail Overbridge, Wahroonga” that is said to be over the F3 is accorded a very high priority for screening, but that bridge does not appear on a list of the current status of bridge screening on National Highways according to the evaluation matrix (which included completed bridges) dated 23 September 1999.
Even leaving that rail bridge out of account, if the Glenlee Bridge were advanced to number 22 in priority there would still be seven bridges on the F3, and two on the F5, above it in priority. The evaluation matrix as at 25 May 1998 does not include any of the bridges that had actually been screened on the F5 or the F3 by 30 June 1998. Thus, even if the error in application of Mr Onggo’s matrix that arose from his not taking into account the history of incidents at the Glenlee Bridge were to have been corrected, it would still not have resulted in the Glenlee Bridge having been screened before 23 August 1998. Mr Onggo’s mistake is an act of negligence that has not caused Mr Evans’ death.
ISSUE 3 – CAUSATION OF DAMAGE

In light of my findings about breach of duty, there is no occasion to discuss this issue.
Orders
I propose the following orders:
1.            Appeal allowed
2.            Set aside the judgment and orders in the court below
3.            In lieu thereof, order that the proceedings be dismissed with costs
4.            Order Respondent to pay Appellant’s costs of the appeal.
SACKVILLE AJA: I have had the privilege of reading Campbell JA’s comprehensive reasons for judgment. I agree with the conclusions reached by his Honour and, in general, with his Honour’s reasoning. However, I wish to add the following comments.
The respondent pleaded that the appellant (“RTA”) had care and control of and was responsible for the maintenance of the Hume Highway and of the Glenlee Bridge. The respondent also alleged that RTA owed a duty to take reasonable care for the safety of road users. The RTA in its defence admitted the substance of these allegations, but denied that the scope of the duty extended to preventing the commission of criminal offences by third parties.
I agree with Campbell JA that, for the reasons his Honour gives (at [141]-[142]), the RTA’s duty did not exclude taking reasonable care to protect motorists using the F5 Freeway from the criminal actions of third parties.
I also agree with Campbell JA (at [165]) that, insofar as the primary Judge found that the RTA breached its duty of care to Mr Evans by failing to install protective screening at the time the Glenlee Bridge was constructed, his Honour was in error in making that finding.
The primary Judge found (Judgment, at [109]) that the RTA’s failure over many years before October 1998 to fence or screen the Glenlee Bridge “represente[d] a failure to take reasonable care”. Campbell JA has explained (at [192]) that the primary Judge’s finding rested on a flawed assessment of the extent of the risk from objects thrown or falling from overpasses in the Campbelltown area. In addition, Campbell JA concludes that the primary Judge erred in failing to apply the process of reasoning articulated by Mason J in Council of the Shire of Wyong v Shirt [1980] HCA 12; 146 CLR 40, at 47-48. (The relevant passage from the judgment of Mason J is reproduced in Campbell JA’s judgment at [178].)
I agree with Campbell JA that the primary Judge’s analysis of the matters to be taken into account in determining whether RTA breached its duty of care was flawed. However, I would prefer to say that the flaw in the primary Judge’s analysis was his failure to apply s 5B of the Civil Liability Act 2002 (NSW) (“Civil Liability Act”), rather than a failure to apply the process of reasoning set out in Wyong Shire Council v Shirt. (Section 5B of the Civil Liability Act is set out in Campbell JA’s reasons (at [172])).
It is true that, as Ipp JA pointed out in Waverley Council v Ferreira [2005] NSWCA 418, Aust Torts Reports 81-818, at [45], the matters set out in s 5B(2) of the Civil Liability Act are, in substance, a reiteration of Mason J’s oft cited remarks in Wyong Shire Council v Shirt, at 47-48; see, too, Review of the Law of Negligence: Final Report (September 2002) (“Ipp Report”), pars 7.5–7.18. It is also true that s 5B operates against the backdrop of the law of negligence. Thus s 5B does not itself impose an obligation on a person to exercise reasonable care, but sets out in subsection (1) requirements that must be satisfied before a person can be found to be “negligent in failing to take precautions against a risk of harm”: D Villa, Annotated Civil Liability Act (2002) (NSW) (2004) at [1A.5B.050]; Penrith Rugby Club Ltd v Elliott [2009] NSWCA 247, at [22]. Section 5B(2) specifies the matters that the Court is to consider (among other relevant things) in determining whether a reasonable person would have taken precautions against a risk of harm. The calculus provided by s 5B(2) requires the matters specified in pars (a) and (b) (“the probability that harm would occur if care were not taken” and “the likely seriousness of the harm”) to be weighed against the matters specified in pars (c) and (d) (“the burden of taking precautions to avoid the harm” and the “social use of the risk-creating activity”): Ipp Report, at [7.9].
While s 5B of the Civil Liability Act incorporates concepts derived from the common law, the primary Judge was required by statute to satisfy himself that each of the matters specified in s 5B(1) was satisfied before he could find that the RTA had been negligent in failing to take precautions against the risk of objects being thrown or falling from the Glenlee Bridge onto vehicles travelling along the F5 Freeway. In order for the primary Judge to find that the criterion stated in s 5B(1)(c) was satisfied (“in the circumstances, a reasonable person in [the RTA’s] position would have taken these precautions”), his Honour had to weigh the competing considerations identified in s 5B(2).
The primary Judge did not refer to s 5B(2) of the Civil Liability Act, presumably because the provision did not play a prominent part in the argument at trial. While the absence of any reference to s 5B in the primary judgment is not necessarily determinative of whether his Honour undertook the task mandated by the legislation, in my opinion he did not do so. In particular, in determining that the RTA had breached its duty of care, the primary Judge did not weigh the probability that the harm would occur if care were not taken against the burden of taking precautions to avoid the risk of harm. Section 5C(a) of the Civil Liability Act makes it clear that the burden of taking precautions to avoid the risk of harm includes:
“the burden of taking precautions to avoid similar risks of harm for which the person may be responsible.”
These provisions required the primary Judge to undertake a careful analysis of the RTA’s responsibilities to avoid other risks of harm to road users and to take account of the competing demands on the limited (if substantial) resources of the RTA.
Sections 5B and 5C of the Civil Liability Act may not require a Court to take any different approach to determining whether a highway authority has been negligent than is required under common law principles. Thus in Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512, a case from New South Wales decided before the passage of the Civil Liability Act, Gaudron, McHugh and Gummow JJ pointed out (at 579 [158]) that the rejection of the so-called “immunity” for highway authorities did not mean that bodies such as the RTA were obliged in all cases to exercise their powers to repair roads or to ensure that they were kept in repair. Their Honours observed (at 580-581 [162]) that:
“The formulation of the duty of care includes consideration of competing or conflicting responsibilities of the authority. In the circumstances of a given case, it may be shown that it was reasonable for an authority to deal in a particular priority with repairs in various locations. The resources available to a road authority, including the availability of materiel and skilled labour, may dictate the pace at which repairs may be made and affect the order of priority in which they are to be made. It may be reasonable in the circumstances not to perform repairs at a certain site until a certain date, or to perform them after more pressing dangers are first addressed.”
This statement of principle would apply equally to the amelioration of risks such as those presented to road users by objects being thrown or falling from overpasses.
While there may be little or no difference in substance between the statutory directions contained in ss 5B and 5C of the Civil Liability Act and common law principles, it is to be remembered that the very point of the statutory provisions is to:
“encourage judges to address their minds more directly to the issue of whether it would be reasonable to require precautions to be taken against a particular risk.”
Ipp Report at [7.17]. In my view, the legislation must be the starting point for both trial judges and appellate courts dealing with cases such as the present.
Campbell JA has examined in detail the competing demands placed on the resources available to the RTA to minimise the risk of injury or death to road users posed by the propensity of some people to throw objects from overpasses into the path of oncoming vehicles on freeways and other roads. There is no doubt that the risk of injury or death from activities of this kind was not only foreseeable but actually foreseen some time before the tragic incident that caused Mr Evan’s death. It was also foreseen that the Glenlee Bridge, along with many other overpasses, presented a significant risk of injury to road users requiring attention from the RTA. The chances of injury or death occurring at any particular location, if preventative measures were not taken, were very low. But if harm did result from objects being thrown or falling onto the carriageway from an overpass, the harm was likely to be very serious.
Subject to the effect of ss 42 and 43A of the Civil Liability Act, I see no compelling reason in the present case, whether deriving from distinctions sometimes drawn between policy and operational matters or otherwise, for the Court to shy away from undertaking the assessment contemplated by s 5B, in particular weighting up the matters identified in s 5B(2). This requires the Court to determine whether a reasonable person in the position of the RTA would have fenced the Glenlee Bridge notwithstanding competing claims on its resources to address similar risks of serious injury elsewhere. In making this determination, the Court needs to consider whether the RTA’s ordering of priorities was a departure from standards to be expected from a reasonable person in the RTA’s position. The Court should also take account of the opportunities reasonably available to the RTA to gain additional funding from the Commonwealth or other sources for the purpose of addressing particularly acute risks of which it was aware or should have been aware.
Campbell JA’s analysis of the facts in this case seems to me to show that the RTA appreciated in a reasonably timely fashion the nature and magnitude of the risk to road users, including the risk to users of the F5 from the Glenlee Bridge, by reason of objects being thrown or falling from overpasses. The RTA’s response to the risk, having regard to the burden of taking precautions to alleviate the risk of harm to all road users from similar sources, was not shown to be unreasonable. The RTA adopted a rational and apparently systematic (although not perfect) approach to assessing priorities for the erection of protective fencing on the basis of the magnitude of risk. It acted on that assessment within the limits of available resources. The evidence does not demonstrate that a reasonable authority in the position of the RTA would have sought additional funding from the Commonwealth or that, if it did, such funding would have been made available for fencing the Glenlee Bridge before the incident that led to Mr Evans’ death.
I do not think it is necessary to consider whether Mr Onggo’s apparent error in assigning a score of zero to the Glenlee Bridge in relation to its “history of incidents/graffiti” would have established, of itself, that the RTA was negligent. As Campbell JA points out (at [434]), even if Mr Onggo had assigned the correct score for Glenlee Bridge in preparing his matrix, it still would not have prevented the incident which caused Mr Evan’s death.
I agree with the orders proposed by Campbell JA.
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AMENDMENTS:

30/11/2010 - Correction of citation error. - Paragraph(s) 132

LAST UPDATED:
30 November 2010