Court rules RTA not liable for driver’s death because of funding constraints and competing priorities
By Brad Gardner | September 29, 2009
The New South Wales Roads and Traffic Authority (RTA) has won an appeal against a court ruling holding it liable for the death of a truck driver in 1998.
The Supreme Court last week overturned a decision made by the District Court which ruled in favour of claims made by Refrigerated Roadways that the RTA breached its duty of care to Mark Evans.
Evans was driving for the company on the F5 Freeway when someone threw a concrete block off Glenlee Bridge south of Campbelltown, smashing the windshield of his truck and hitting him in the chest, causing a fatal crash.
The RTA was ruled accountable for Evans’ death because it had control of the F5 and should have installed a screen on the bridge due to a foreseeable risk of an incident occurring.
However, Supreme Court Justice Ruth McColl found budgetary constraints and the RTA’s competing priorities were not given enough weight in determining the department’s liability.
She ruled the primary judge did not consider sections of the Civil Liability Act which stipulate conditions for determining whether a duty of care has been breached.
“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,” McColl ruled.
“The availability of funding was a matter of considerable importance to an assessment of what the reasonable response to the foreseen risk would have been.”
The court heard the RTA sought federal backing to screen the Glenlee Bridge in 1996, but suffered from a funding shortfall in the lead-up to the incident involving Evans.
McColl says the lack of funding forced the department to carry over work the following year and ate into money allocated for bridge screening.
Furthermore, McColl ruled the RTA must also consider road widening, conversions, new passing lanes, bridge widening, shoulder sealing, railway upgrades, rest areas, pedestrian and bicycle facilities and noise protection when seeking funding for projects.
The court was told the RTA’s actions must also be seen in the context of the cause of accidents in NSW in 1998, of which 0.4 percent of the 52,575 incidents that year involved objects being thrown from overpasses.
“For a jury to have come to a decision that the RTA failed to take reasonable care to prevent harm to motorists…is in the present case not a possible task,” McColl ruled.
Although the RTA agreed it had a duty of care to motorists, it argued it should not be held liable for criminal actions of third parties because they are outside of the department’s control.
Refrigerated Roadways was ordered to pay all court costs.
Evans, who died at the scene of the accident, left behind a widow and two children.