Today’s correspondent says:

I understand in WA that during an emergency:

“Traffic Controllers in attendance at a road closure do not have the authority to prevent access, but may take details of the registration plate number of any road user who breaches the closure for subsequent prosecution” (State Emergency Management Committee, Traffic Management During Emergencies Guideline, v. 3.04, 2 February 2024, p. 16, [2.5.2]).

Has there ever been a case where a member of public has breached the closure and been injured (or worse) – what is the liability on traffic controllers in this situation?

The Traffic Management … Guideline, in the paragraph quoted above, goes onto say:

Traffic Controllers confronted by road user’s intent on breaching the closure should warn the driver that:

• Passing the road closure could lead to danger

• Breaching the road closure is an offence under the relevant legislation

• Their vehicle registration and driver description is being noted.

Details of the breach should be reported to the IMT or Police Commander immediately.

A driver approaching a ‘hand held “stop” sign’ must stop before the sign (Road Traffic Code 2000 (WA) r 83(1); maximum penalty of 6 penalty units ($300, Road Traffic Administration Act 2008 (WA) s 7) and 3 points) and not proceed until the holder of the sign moves it so it no longer shows ‘stop’ to the driver or otherwise indicates that the driver may proceed (Road Traffic Code 2000 (WA) r 83(2); maximum penalty of 4 penalty units ($200, Road Traffic Administration Act 2008 (WA) s 7) and 3 points).

Every driver must obey ‘the signal by hand or the reasonable oral direction given by … an authorised person, if the signal or direction given by him or her is given for the purpose of ensuring the safety, or facilitating the movement, of traffic or persons at or near the scene of an incident resulting in a dangerous situation’ (Road Traffic Code 2000 (WA) r 272; maximum penalty of 2 penalty units ($100, Road Traffic Administration Act 2008 (WA) s 7) and 3 points).

The Commissioner of Main Roads may close ‘a highway or main road, or part of a highway or main road, has become unsafe for traffic generally or traffic of any particular class’ (Main Roads Act 1930 (WA) s 16A(1)(a)).  Where the highway or main road is closed, the Commissioner ‘must cause signs to be erected at each end of that highway, main road or part’ (s 16A(3)).

A person who, without the authority of the Commissioner, drives a vehicle or causes a vehicle to be driven on a highway or main road, or part of a highway or main road, that is closed to traffic generally … commits an offence.

The maximum penalty is a fine of $10,000 (s 16A(4)).

The only case I’m aware of where a driver has been prosecuted for driving onto a closed road in an emergency is from Queensland – see ‘Man jailed over fatal drive through floodwaters’ (March 7, 2012). 

There is no reason to think that a traffic controller would or could be liable in the circumstances.  The obligation is on a driver to comply with a ‘road closed’ sign, a handheld stop sign and/or the signal given by an ‘authorised person’.  If they chose to ignore that obligation then the traffic controller cannot be ‘liable’, they have done nothing wrong.  Apart from having no legal power to stop a driver they would not have the actual power – ie they cannot stop the driver of a moving vehicle.  Any liability in either tort or crime would belong to the driver.

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.