The Supreme Court, in the case of Roads and Traffic Authority (NSW) v Barrie Toepfer Earthmoving & Land Management Pty Ltd, recently upheld an application brought by the plaintiff, being a statutory body, to dismiss part of the defendant’s defence to a statute based claim which alleged contributory negligence on the part of the plaintiff, claiming that the plaintiff was “the author if its own loss”.
The Court declined to dismiss the defendant’s cross-claim which was filed against the plaintiff and claimed breach of statutory duty and breach of a duty of care owed at common law.
Facts
The Roads and Traffic Authority of New South Wales (the RTA) brought a claim under s 102 of the Roads Act 1993 claiming damages in respect of an alleged motor vehicle accident involving the defendant’s vehicle and a bridge owned by the RTA.
The RTA alleged that the defendant’s vehicle, being a prime mover which was towing a trailer that was carrying an excavator, was been driven across the Hexham Bridge in New South Wales, when part of the vehicle’s load struck the overhead structures of the bridge. The bridge incurred extensive damage and the RTA sought to recover the cost incurred in making good that damage.
Pursuant to this statutory provision, a person who causes damage to a public road is liable to pay to the appropriate roads authority the cost incurred by that authority in making good the damage. In this instance, the claim was brought by the RTA against both the defendant company and its driver.
The company, in its defence, did not admit that the vehicle or any part thereof, came in contact with or occasioned damage to the bridge. The company also did not admit that any repairs were carried out as a result of any damage caused by the company. The company alleged that an RTA employee directed its driver, Mr Luck, to stop the vehicle at a heavy vehicle checking station just prior to driving over the bridge. After complying with these instructions, Mr Luck was then directed by the RTA employee to adjust the load so as to move the excavator further forward on the trailer. This resulted in the boom of the excavator being situated higher than the maximum height of clearance under the bridge.
The company relied upon this matter in its defence and also in a cross-claim which was issued against the RTA alleging breach of duty of care at common law together with breach of statutory duty.
The RTA brought an application to have part of the defendant company’s defence struck out, as well as for the dismissal of a cross-claim filed by the defendant company on the grounds that it disclosed no reasonable cause of action.
Decision
The Supreme Court upheld the application to strike out part of the defence, however the Court declined to strike out the defendant’s cross-claim against the RTA. The Court held that the company, in contending in its defence, that it did not cause any damage to the bridge and that the RTA was responsible for any damage as it was “the author of its own loss”, was confusing the principles of liability with those of causation. This part of the defence was thus struck out.
The application to strike out the defendant’s cross-claim which was issued against the RTA, turned primarily on the Court’s ruling as to whether the authorised officer who directed Mr Luck to adjust the vehicle’s load, was an RTA employee making the RTA vicariously liable for his negligent acts.
The Court determined that he was not an RTA employee but an employee of the Crown by virtue of s46(3) of the Transport Administration Act 1998 together with s4B of the Public Sector Employment and Management Act 2002. It was submitted by the RTA that the proper defendant to such cross- claim was the State of New South Wales rather than the RTA. The Court held the RTA to be vicariously liable for the negligence or breach of statutory duty on the part of an employee in its service. The Court dismissed the application to set aside the defendant’s cross-claim however it ordered that the cross-claim was to be amended so as to properly plead vicarious liability. As such, leave was granted to the defendant to amend its cross-claim.
The final issue addressed by the Court was that of causation and whether there exists a need to establish negligence when bringing a claim under s 102 of the Roads Act. The RTA submitted that it is widely accepted that negligence is not an element of the cause of action, citing Commissioner of Main Roads v Engel (1962) 80 WN (NSW) 137. The defendant company submitted that the authorised officer acted negligently in directing the driver to raise the excavator when the vehicle was about to cross a height restricted bridge. The Court declined to derogate from the principle in Engel that the statutory provision in question did not require proof of culpability or liability. The Court noted that it does not then follow that the company is not entitled to put the RTA to proof on the issue of causation, but viewed this to be a matter for a cross-claim and not one upon which a defence may be based. The Court stated at [43] “There is no warrant in law or in logic for such an assumption”.
Implications
This case raises several important considerations in respect of statute based claims. Firstly, the Supreme Court confirmed that proof of culpability is not required when bringing a claim under statute. This principle was expounded in the case of Commissioner of Main Roads v Engel and the Court declined to stray from its application. Secondly, the Court confirmed that a defence which pleads or attempts to plead contributory negligence in response to a claim brought under statute, fails to satisfy the requirement of a reasonable defence and as such may be struck out. In respect of statute based claims, allegations of contributory negligence are matters to be addressed in a cross-claim. Of further interest is the Court’s decision to apply the principles of vicarious liability to a situation in which an authorised officer who is officially (under statute) employed by the Crown but acts as an employee in the service of a statutory body and authorised by it to exercise its functions.
For further information, please contact a member of our Insurance team:
Dean Newell | Partner
T 61 2 8233 9717
Sarah Tynan| Lawyer
T 61 2 8233 9605
